The Run of His Life

by Jeffrey Toobin

  Now it was Clark who had the spring in her step when she took to the podium. She wasn’t buying Bailey’s subtle distinctions. “This is the kind of nonsense that gives lawyers a bad name, Your Honor,” she said. “He was intending to convey to the court that he had personal knowledge of what this man said because this man said it to him personally”—and here Clark puffed up her chest and parodied Bailey—“ ‘marine to marine,’ and now he is standing up and hairsplitting with us.”

  Bailey looked as if he might expire right there in the courtroom. His hands shaking, his face a map of tiny blood vessels, he kept trying to edge Clark off the podium. Clark noticed and didn’t give an inch. She pointedly turned her back on Bailey and told Ito, “Mr. Bailey—you can see how agitated he is—has been caught in a lie, and you know something? Not in this case. You don’t get away with that. There are just too many people watching.”

  Clark started to play more from Dateline, and Bailey stood up with his hand on the podium. “I object to that, Your Honor,” he said, “and I ask that you put a stop to it.” Her face inches from his, Clark chastised Bailey as if he were a naughty child. “Excuse me, Mr. Bailey. Stand up and speak when it is your turn.” Bailey looked like he might take a swing at her—but he restrained himself, and this confrontation, like so many during the trial, burned itself out without a clear resolution.

  Bailey had one more request before he resumed his cross-examination. He wanted to use a brown leather glove, which he had placed in a Ziploc bag, in questioning Fuhrman. “Detectives frequently, as we have seen in this case, collect evidence in plastic bags,” Bailey explained. “Marines tend to carry things in their socks, the same way some detectives carry an ankle holster for a backup weapon. This package could easily have been kept in a man’s sock, short or tall.… I think it fair to ask Detective Fuhrman if it would have been possible for him to put a glove in a plastic bag to which he had access and to stick it in his sock and to later pull it out and dispose of the plastic bag.” This speculation (outside the presence of the jury) was as close as the defense ever came to articulating a theory for how Fuhrman might have transported a second glove from Bundy to Rockingham.

  Clark again was outraged by this suggestion, which had not a shred of evidentiary support. “With respect to this plastic bag, this is ridiculous,” she said. “There is no connection to this case. A leather glove of a different size, a different color, a different make, a different style, that has no relevance to this case either.… This has no part in any search for the truth. This is a fantasy woven by the defense for which there is no evidentiary basis, no logical or factual connection to this case.”

  Rising from his torpor, Ito asked to examine the glove Bailey proposed to use, then handed it back to Clark.

  “Let me ask you this,” the judge said. “What is the glove size that is on the glove that was recovered at Bundy?”

  “Extra-large,” said Clark.

  “The glove there is a Brooks Brothers size small,” Ito observed.

  “Right,” said Clark.

  “They are out of extra-large,” Bailey interjected. (Pat McKenna had done the shopping.)

  “Not only that,” Clark continued, “but the glove in issue is an Aris, and it is not a Brooks Brothers. I can’t even tell if it is a man’s or woman’s glove.”

  Clark fondled the glove for a moment in silence. Then she said, “Size small—I guess it is Mr. Bailey’s.”

  There was a slight pause as everyone in the courtroom registered that Marcia Clark was referring to the folklore about the inferences to be drawn from the dimensions of a man’s hand. At one level, Clark’s comment was a pretty funny line; but it was a nadir of sorts, too—a symbol of just how out of control Ito had allowed the proceedings to get. The judge said nothing, though he did slip his own hands under his desk when Clark made her quip.

  Bailey didn’t pick up on what Clark had implied until a few moments later. Then, out of the blue, he held up his right hand for the court (and the camera) to see. “Let me state very clearly, and I should point out,” Bailey said, “that if Miss Clark thinks that hand and this glove would ever work together, her eyesight is as bad as her memory.”

  That is the kind of courtroom it was: one where there was not just a stray comment, but actual repartee, about the size of F. Lee Bailey’s penis.

  Bailey had failed to budge Fuhrman on his story about his role in the investigation. All he wanted now was to leave the sound of the word “nigger” ringing in the ears of the jurors.

  Bailey knew better than most lawyers the power that word exerted over a jury, especially one that included African-Americans. When Bailey had defended himself against fraud charges in Florida in 1973, the government’s first witness in the trial was a man named Jimmie James. A former executive at Glenn Turner’s Koscot Interplanetary company, James testified that the operation was little more than a Ponzi scheme. Though all of Bailey’s fellow defendants were white, Bailey knew a surefire way to inject race into the case. During his cross-examination of James, Bailey asked him if he had ever said, “I hate niggers.” James denied it.

  Recalling the scene in his book For the Defense, Bailey wrote that the atmosphere in the courtroom “changed noticeably when I used the word ‘niggers.’ I had barked out the word, trying to give it as much meanness and venom as I could. It hung in the air, an all but palpable accusation.”

  Continuing, Bailey had asked James, “You say that you did not. You do not use that word at all, do you?”

  Bailey knew it was the perfect question on cross-examination. As he explained in the book, “I knew that if James denied using the word, I could put the investigator on the stand to refute him, thereby impeaching that statement and casting doubt on the rest of his testimony as well.” James tried to wiggle out of a firm commitment on the issue, but Bailey never forgot the reaction of a black woman juror on hearing the “nigger” testimony. “The juror next to her, another woman, kept patting her on the knee the whole time, saying what even an amateur lip reader could recognize as ‘Calm down now, calm down.’ ”

  Moments after his confrontation with Clark on March 15, Bailey sought to re-create almost word-for-word his cross-examination of Jimmie James with Mark Fuhrman. “Do you use the word ‘nigger’ in describing people?”

  “No, sir,” said Fuhrman.

  “Have you used that word in the past ten years?”

  “Not that I recall, no.”

  Bailey was too clever to let Fuhrman plead a failure of recollection. “You mean if you called someone a nigger you have forgotten it?”

  “I’m not sure I can answer the question the way you phrased it, sir.”

  Bailey was going to make sure he had Fuhrman’s denial down cold. What followed was perhaps the most quoted exchange in the entire trial. “Are you therefore saying that you have not used that word in the past ten years, Detective Fuhrman?”

  “Yes,” Fuhrman said with just a touch of nervousness, “that is what I’m saying.”

  “And you say under oath that you have not addressed any black person as a nigger or spoken about black people as niggers in the past ten years, Detective Fuhrman?”

  “That’s what I’m saying, sir.”

  “So that anyone who comes to this court and quotes you as using that word in dealing with African-Americans would be a liar, would they not, Detective Fuhrman?”

  “Yes, they would.”

  “All of them, correct?”

  “All of them.”

  “All right,” said Bailey. “Thank you.”

  Bailey had closed every possible escape hatch.

  Marcia Clark could have cried in frustration. She knew without knowing—knew without being told—that Fuhrman had probably said “nigger” in the past decade. At that point, there was nothing she could do. After embracing Fuhrman during his direct testimony, there was no way she could distance herself from him at this point. When it came time to conduct a redirect examination, she tried—with a growing sense of futil
ity—to focus the jury on what mattered in his testimony.

  “The first time you walked out to the south pathway at 360 South [sic] Rockingham, did you know the time of death for Ron Goldman and Nicole Brown?”

  “No,” said Fuhrman.

  “Did you know whether Mr. Simpson had an alibi for the time of their murders?”

  “No.”

  “Did you know whether there were any eyewitnesses to their murders?”

  “No.”

  “Did you know whether anyone had heard voices or any sounds or any words spoken at the crime scene at the time of their murders?”

  “No.”

  “Did you know whether Kato had already gone up the south walkway before you got there?”

  “No.”

  “Did you know whether any fibers from the Bronco would be found on that glove that you ultimately found at Rockingham?”

  “No.”

  “And did you know the cause of death?”

  “No.”

  That was Clark’s entire redirect examination of Fuhrman—seven questions. Brevity is bravery in a courtroom, and Clark made her point as strongly as she could. Whatever Mark Fuhrman’s character defects, it would have been sheer irrationality for him to plant that glove.

  With the Fuhrman testimony behind them, Shapiro and Bailey were free to return to their top priorities: themselves.

  Bailey, who for many years had lived by the sword of public acclaim, was now dying by the sword of “expert” condemnation of his cross-examination of Fuhrman. Despite his public mask of bravado, this criticism wounded Bailey, and he set off on a rather desperate attempt to pump up his reputation. Like an actor promoting a movie, Bailey did the rounds of interviews to praise his own performance. Bailey hosted an elegant dinner party on Friday, March 17, at the Beverly Hills home of a friend. At the appropriate hour, television sets were wheeled before the guests so Bailey could watch himself being interviewed on ABC’s 20/20. Correspondent Cynthia McFadden asked Bailey if O.J. had been pleased with his cross-examination of Fuhrman. “He was extremely pleased,” Bailey said. “And the reason was that Carl Douglas and Johnnie Cochran and O.J. himself all felt that it was very successful from the perspective of jury reaction. They did not feel that Mark Fuhrman had been bought by this jury, and that was the only issue. They really didn’t care what you people thought.”

  Bailey was so desperate for approval that he even invoked his nemesis Marcia Clark as a witness in his own behalf. Bailey told David Margolick of The New York Times that he “received a very nice compliment from Ms. Clark” about his cross. To Bryant Gumbel, on Today, Bailey said, “We met the objectives that we set out to meet. But we dug [Fuhrman] in the hole that we wanted to dig and he jumped into it.” To Time magazine, Bailey boasted, “Johnnie Cochran and O.J. Simpson understand that jury the way no white lawyer will. Days 2 and 3 of Fuhrman’s cross, we got very good vibes.… Norman Mailer called me and said it was flawless. So I feel good.”

  Shapiro had his own strategy for reputation overhaul. After Fuhrman left the stand on March 16, Shapiro issued an extraordinary public statement from the steps of the courthouse, in which he essentially denounced his colleague’s cross-examination of the detective. “My preference,” Shapiro told a flock of cameras, “was that race was not an issue in this case and should not be an issue in this case, and I’m sorry from my personal point of view that it has become an issue in this case.” This was an especially shameless display by Shapiro, considering that he had launched the race-based defense onslaught against Fuhrman in the first place. But times had changed. With Simpson’s defense in other hands, Shapiro now cared more about ingratiating himself with West Los Angeles (i.e., white) society. This statement was a public step in that direction.

  After court broke the following day, March 17, Shapiro spent the rest of the afternoon hanging around Larry King’s room at the Beverly Wilshire Hotel. (Of course, the Shapiros were pointedly not invited to Bailey’s soirée that evening.) Shapiro and King had become friends over the course of the case, and Shapiro confided that he was miserable. He told King that he loathed both Bailey and Cochran and wanted nothing more than to get off the case. Shapiro tagged along when King went to the CNN studio on Sunset Boulevard to do his show. King’s guests that night were Alan Dershowitz and Dennis Zine, the head of the Los Angeles police union. Dershowitz had caused a minor storm the previous week when he asserted that many cops were trained to lie on the witness stand, and the professor reiterated his attacks on police in general, and the LAPD in particular, over the course of the broadcast. At the end of the show, which he watched from just off camera, Shapiro greeted Dershowitz with a single observation that summed up his alienation from his colleagues on the defense team.

  “You’re going crazy, Alan,” Shapiro said.

  Shapiro brought his petulance into the courtroom the following week. He made only his second appearance of the case (questioning Denise Brown was the first) when he cross-examined Philip Vannatter. Under direct examination by Darden, Lange’s partner and the co–lead detective on the case did little more than corroborate what Phillips, Lange, and Fuhrman had told the jury earlier. Shapiro did a competent job of cross-examining Vannatter, focusing on his false statements in the search-warrant affidavit for Simpson’s home and the detective’s decision to carry O.J.’s blood sample all the way from Parker Center to Simpson’s house in Brentwood. (Rather than reflecting conspiratorial behavior, Vannatter’s delivery of the blood merely illustrated his own laziness; by giving the blood to Dennis Fung at O.J.’s house, Vannatter spared himself the headache of stopping at another location and doing the paperwork on the evidence.)

  What was striking about Shapiro that day was his appearance. The lawyer conducted the questioning while wearing a blue ribbon on his lapel. The chief of the LAPD, Willie Williams, had started a campaign for citizens to wear these lapel pins in support of the police. Williams had very explicitly stated that the pins stood for defending police officers against the accusations leveled at them by O.J. Simpson’s lawyers. Shapiro never made clear just why—other than perhaps sheer perversity—he had decided to wear one. (To mock Shapiro around Cochran’s office, investigator Pat McKenna also took to wearing a blue pin—on the fly of his pants.)

  Shapiro’s blue-pin gesture nearly drove his client over the top. Coming right after Shapiro attacked Bailey’s cross-examination of Fuhrman, the lapel pin was too much. Simpson gave Shapiro an ultimatum: One more stunt and you’re off the team.

  This would have been Shapiro’s opportunity to flee—that is, if he had really wanted off. But in his heart Shapiro loved the attention that came to him as a result of the Simpson case—the knowing winks from celebrities, the autograph seekers. Shapiro also knew even before the trial had started that he wanted to write a book about it. He couldn’t give it all up now. Better, he decided, to spend the remainder of the trial as a guest at the Thanksgiving from hell: stuck at a table with people you can neither abide nor escape.

  Marcia Clark was suffering, too. Bad enough that she was beset by the tabloids and a vengeful ex-husband; worse yet, she was watching the Simpson case become more racial morality play than murder trial. Clark had a gift for surviving on very little sleep, but so, alas, did her two sons, and they did not always choose the same five hours as each other or as their mother. Red-eyed, she would complain in the morning, “I got double-teamed again last night.” All of that, plus her incessant smoking, gave her a cold marked by a persistent, hacking cough and watery, bulging eyes. She was sick for weeks.

  And then she had to deal with Kato Kaelin. His life was the antithesis of Clark’s—carefree, aimless, without plan or responsibility. In fact, Kaelin’s cuddly image obscured a darker personal history. He may have looked and acted like a teenage slacker, but he was a lot closer to forty than twenty, and his perpetual freeloading was viewed with scorn by his ex-wife, the mother of their daughter, whom Kaelin intermittently supported. For that and any number of other reasons, Marcia Clar
k loathed him. But she needed him. Whatever else he did, Kaelin circumscribed O.J.’s alibi; the two men had arrived home from their famous trip to McDonald’s at about 9:40 P.M. on June 12. Kaelin had also heard the thumps near the air conditioner, which had prompted Fuhrman’s expedition to the pathway behind the house. Clark needed Kaelin to place those facts in front of the jury.

  When Kaelin took the stand—twitching, tieless, in black jeans and, of course, his unruly mop of greasy blond hair—everyone, including the usually deadpan jury, had to smile at his bravura goofiness. On the night of the murders, the jury learned, Kaelin spent from 7:45 to 8:30 P.M. in O.J.’s Jacuzzi—a marination of almost superhuman duration. At one point, Clark asked him about the clock in Simpson’s Bentley, the vehicle they drove to McDonald’s.

  “Was this a digital clock?”

  “No,” Kaelin said, and he then began waving his arms in a sort of cretinous attempt to act out the hands of a watch. “It was a numbered clock. Well, I mean numerals.” He stumbled along. “A digit would be that, too, but you know what I’m saying.”

  Ito finally ended the agony. “Analog,” he said.

  Clark did get an interesting new fact out of the witness. It was always the prosecution’s theory that Simpson, while planning the murder, had tried to use Kaelin to set up his alibi. After Simpson returned from Sydney’s dance recital, he did something he had never done before—knocked on Kaelin’s door and said he only had hundred-dollar bills on him and needed a five to tip the skycap at the airport later that night. Kaelin didn’t have a five either, but he did give Simpson a twenty-dollar bill. Also during that visit, Simpson told Kaelin he was going to get something to eat. Had all gone according to Simpson’s plan, Kaelin would have reported this conversation to the police later. However, to Simpson’s surprise, Kaelin invited himself along. They had never gone to dinner together previously. Simpson agreed to take Kaelin, and the two men made a quick trip together to McDonald’s—a time when, according to Kaelin, Simpson was brooding about Nicole’s inappropriately sexy attire at the recital.