The Run of His Life

by Jeffrey Toobin

  The key new testimony concerned payment at the drive-through window. Kaelin had handed Simpson a twenty-dollar bill with which to pay, and after paying, Simpson had handed all of the change back to Kaelin. So, even though Simpson went to Kaelin’s room with the stated purpose of getting a five-dollar bill from him, he never took it even when he had the chance at McDonald’s—interesting circumstantial evidence that Simpson had tried to use Kaelin to set up an alibi for a premeditated murder.

  Simpson had dictated a memo from jail advising Shapiro how to cross-examine Kaelin, urging the lawyer to establish that on the night of the murders his attitude was “just kicking back, was tired, and that was his frame of mind.” Shapiro followed his client’s advice, and Kaelin did portray Simpson’s demeanor as more matter-of-fact than tense. In the prelim, Kaelin had suggested Simpson was in a dark mood that evening, and the shift in his testimony enraged Clark. She displayed great impatience with Kaelin during his redirect testimony and even had Ito declare him a “hostile witness,” which entitled her to ask him leading questions. Ultimately, Clark did get the bare minimum she needed out of him, but her hostility, combined with Kaelin’s vapidity, made this witness ultimately a lost opportunity for the prosecution.

  Not so Allan Park, who represented one of the rare occasions when fortune smiled on the prosecutors. Poised, intelligent, with a record of cellular telephone calls to corroborate his story about the night in question, the man who drove Simpson to the airport in a limousine proved a devastatingly incriminating witness.

  Nervous about picking up a celebrity for the first time, Park had arrived for his 10:45 P.M. pickup about twenty minutes early. He drove up Rockingham at about 10:25 P.M, and—this was crucial—Simpson’s Bronco was not there. He made a right turn onto Ashford and waited. He rang Simpson’s bell at about 10:40 P.M. No answer. He went around the corner to the Rockingham gate. No signs of life—and still no Bronco parked there. Park began to panic. He didn’t want Simpson to miss his 11:45 P.M. flight to Chicago. Using the limo’s cell phone, Park called his boss. He even called his mother. He kept ringing the bell to the house. Peering through the gate, he saw that the house was dark, except for a single light upstairs. At 10:52 P.M., Park’s boss called him in the limo. A minute or two later, two sights caught the driver’s eye. First, a man (Kaelin) emerged briefly from the shadows near the back of the house. Second, in front of the house, a 6-foot, 200-pound black person walked into the front door of the house from outside. Park buzzed again. For the first time, the lights went on downstairs, and O.J. Simpson answered the intercom, then opened the gate by remote control.

  “I overslept,” Simpson said. “I just got out of the shower, and I’ll be down in a minute.”

  Clark knew how to milk a moment in the courtroom, so she asked Simpson to rise from his seat at the defense table. “Can you tell us,” she asked Park, “if that appears to be the size of the person that you saw enter the front entrance of the house at Rockingham?”

  Cochran objected. Ito overruled him. Simpson winced as if in physical pain.

  “Yes, around the size,” said Park.

  Simpson spent about five minutes rooting around in the now fully lit house and rushed downstairs with a few bags, Park said. Kaelin and Park helped him load them into the car, although Simpson insisted that only he touch a small black duffel bag. (Prosecutors argued that this bag held the clothes Simpson wore during the murders.) When Park drove his limo down the driveway and made a left onto Rockingham, he noticed something that was different from when he had arrived. The Rockingham curb had been empty at 10:25, but at this point, shortly after 11:00, “something was obstructing my view” on the right—apparently, the Bronco. In other words, O.J. Simpson’s Bronco was not parked by his house at the time of the murders, but it was there after Simpson materialized back at his house. It was startling evidence of Simpson’s guilt. Cochran made scarcely a whit of progress on cross-examination.

  James Williams was the skycap who had checked Simpson’s bags through to Chicago at Los Angeles International Airport. In brief testimony after Park’s, Clark had Williams explain that there was a big trash can on the sidewalk in the area where Simpson got out of Park’s limousine. The implication, which Clark never stated directly before the jury, was that Simpson might have discarded, in that trash can, the small black duffel bag he had insisted on handling back at his house.

  Carl Douglas rose to cross-examine, full of bluster. Clark’s insinuations about the trash can were so vague that a more confident lawyer might simply have ignored them. But Douglas would not be deterred.

  “Mr. Williams,” Douglas barked out, “you don’t recall ever seeing Mr. Simpson anywhere near that trash on June the twelfth, do you, sir?”

  Williams didn’t hesitate. “Yes, he was standing near the trash can.”

  Douglas looked like he had been clubbed with a two-by-four. Clark stifled a smile.

  Williams stepped down on the afternoon of March 29, and on that rare happy note for her in Department 103, Marcia Clark effectively disappeared from the case. She did not examine another witness for nearly three full months, until June 21. Preoccupied with her divorce case, she rarely even made it to court on time. Over the following weeks, it was often 9:30 A.M. or later when Clark burst through the courtroom double doors and, juggling purse, files, and food, settled noisily into her seat. The jurors, who as near prisoners had to rise daily at 5:30 A.M. and thus had no choice about being on time, regarded Clark’s entrances with long, cold stares.

  18. THE BEST TRIAL LAWYER

  Barry Scheck looked different and sounded different. His entire wardrobe of ill-fitting double-breasted suits probably cost less than just one of Cochran’s or Shapiro’s buttery ensembles. In more ways than one, Scheck spoke in a language that few in the courtroom understood. There was his accent for starters—a New York honk that never blended into the beige California soundscape—but there was also his vocabulary: the language of forensic DNA technology, with its “alleles,” “autorads” and “daughter ions.” When Scheck first turned up in the case at a handful of hearings during the summer of 1994, he and his partner, Peter Neufeld, seemed rarely even to talk to their colleagues at the defense table.

  But the courtroom camera never caught the most important difference between Scheck and the other defense lawyers.

  Scheck worked. Cochran left the detail work to Carl Douglas. Shapiro enjoyed a nap after a day in court. When Scheck left Ito’s courtroom, he would bend his pudgy frame over a table in Cochran’s office suite and examine the scientific evidence against O.J. Simpson the way no criminal prosecution case had been scrutinized before. When Shapiro had hired him the week after the murders, it wasn’t even clear what Scheck’s role would be. The vague idea was that Scheck and Neufeld would brief Shapiro for the hearing on the admissibility of DNA evidence. At that point, the idea that Barry Scheck would deliver one of the closing jury arguments in the case would have been laughable. But by dint of the sheer quality and quantity of his effort, Scheck emerged, after Cochran, as the most important trial lawyer in the case—and, in terms of courtroom skills, the single best trial lawyer as well.

  What Scheck did in those endless sessions at the table in Cochran’s office was construct a brilliant defense. The genius of it was that it merged perfectly with the cruder race-based strategy Shapiro and Cochran had orchestrated from the beginning. As with the race defense, Scheck’s efforts had little to do with establishing that someone other than Simpson had murdered Ron and Nicole. Far from it. Scheck’s work had everything to do with undermining the integrity and competence of the LAPD. The results of the LAPD’s work, Scheck told the jury, could not be trusted. Cochran attacked the hearts of the policemen; Scheck, their minds. Scheck’s goal epitomized the nihilistic function of a defense lawyer—to establish that the mountain of forensic evidence against his client means nothing.

  The most remarkable thing was that Scheck actually accomplished this goal. By the end of the case, he had a plaus
ible scientific basis for arguing away every piece of physical evidence against Simpson. To be sure, many of these explanations were fanciful, and some were silly. They were, in part, contradictory to one another, positing a police department that was both totally inept and brilliantly sinister. Scheck’s arguments presupposed a conspiracy so immense within the LAPD that, analyzed objectively, it seemed a practical impossibility. But Scheck’s passion and skill made his theories real for the jury. And for that reason, he as much as any other person in that courtroom was responsible for the verdict that came out of it.

  With a shift of about a half dozen years, Barry Scheck might have been Marcia Clark (and she, him). Both came from upwardly mobile middle-class Jewish families that stressed education and liberal politics. Both were smart, verbal kids who did well in school. Both seemed destined to be lawyers. But Scheck, born in 1949, came of age at a time when the highest goal for a liberal lawyer was to fight the system—as a criminal defense lawyer at least and a Legal Aid lawyer at best. A few years later, kids like him would become prosecutors.

  Besides, Barry couldn’t dance. His father, George Scheck, had been born into a poor family of eight children on Manhattan’s Lower East Side. George dropped out of elementary school and started hanging around a bank, where the janitor taught him to tap-dance. George became so skilled that he was one of the few white men of his generation to play the Apollo in Harlem. During World War II, George started a local radio revue called Swing Shift Follies, which aimed to discover musical talent among the Rosie-the-Riveters on the assembly lines. After the war, George became a musical-talent manager, and he nurtured the early careers of such stars as Bobby Darin, Connie Francis, and Hazel Scott. Thriving, the Schecks and their two children moved from Queens to a big house on Long Island.

  In 1959, when Barry was ten, the big house burned down. His sister, then seven, died in the fire. The family moved to an apartment in Manhattan. The ordeal may have quite literally broken his father’s heart: George couldn’t work full-time because of ill health, and he ultimately suffered twelve heart attacks before he died in 1987. Barry’s mother was forced into work at an office-supply business. They focused their hopes on their one precocious surviving child.

  Scheck had a Doonesbury-esque experience at Yale in the 1960s, which was not entirely surprising, because his room was across the hall from Garry Trudeau’s. When Scheck arrived as a freshman, he wore ties and cast his lot with Yale’s Young Democrats; by the time he graduated, he could only enter the Yale Club in New York through a side door, because his political convictions demanded that he wear work shirts. Along the way, Scheck presented his draft card to the famous Yale chaplain William Sloane Coffin for delivery to the Pentagon, in protest of the Vietnam War. Scheck campaigned for Norman Mailer when he ran for mayor of New York City. Still, he did go to law school, at Boalt Hall in Berkeley, and after graduating went to work for Legal Aid in the Bronx.

  Scheck spent about five years in that combative, unionized, highly political office (where Neufeld also worked), until he took a job as a clinical law professor at the Benjamin N. Cardozo School of Law in lower Manhattan. The position allowed Scheck both to teach and to defend criminal cases, and in 1987 a fellow lawyer called him with a plea for help. The lawyer’s client, Joseph Castro, had been charged with murder, and the case against him was based principally on the infant science known as DNA fingerprinting. Scheck and Neufeld agreed to help out.

  What struck the two lawyers was the hypnotizing power of DNA technology. As they steeped themselves in this new science, they realized that the best way to attack it was from the ground up—that is, through the evidence collection and preservation techniques of the police. The tests themselves were close to unassailable, but they were sensitive, too, geared more to laboratory conditions than to the chaos of crime scenes. Garbage in; garbage out—that was the theory. After protracted hearings in the Castro case, Scheck and Neufeld persuaded the judge to exclude the DNA evidence as unreliable. (It wasn’t wrong, though—Castro himself ultimately pleaded guilty in the case.)

  The power of the technology pricked the two men’s social consciences as well. Scheck and Neufeld realized that DNA testing on blood or semen could free the unjustly convicted, and they began representing prisoners they believed were innocent. They recruited Scheck’s students at Cardozo to help, and called their efforts the Innocence Project. Tracking down forgotten evidence—sometimes many years after the trials that sent their clients to jail—Scheck’s team subjected it to DNA testing. In just a few years, they helped more than fifteen convicted prison inmates go free.

  At one level, though, Scheck and Neufeld weren’t so different from their more cynical colleagues on the Simpson defense team. There was a conflict in Scheck and Neufeld’s two approaches to DNA: They trashed it when it implicated their clients and embraced it when it excluded them. The pair dealt with this state of affairs by resolutely refusing to acknowledge it, asserting instead that DNA “matches” were simply less reliable than exclusions. But even Scheck’s and Neufeld’s admirers in the scientific community—and there are many of them—found this position difficult to swallow. According to Richard Lewontin, a professor of population genetics at Harvard, “Unlike most lawyers, Barry and Peter really know what they’re talking about when it comes to the technology. When they’ve defended clients, they’ve done brilliant work in showing the problems with the DNA labs. On the other hand, I have to say, they have no compunction about supporting the technology when it’s useful for the defense. They are defense attorneys—and they’re not always consistent, because they’re defense attorneys.”

  The forensic-evidence portion of the Simpson case began with the testimony of Dennis Fung, the diminutive, soft-spoken thirty-four-year-old criminalist who had collected evidence from both Bundy and Rockingham on the morning after the murders. The prosecutor was Hank Goldberg, a skilled appellate advocate, but a trial lawyer with the stage presence of a voice-mail attendant. Prodded gently by Goldberg, Fung told the story of how he had collected the various tiny drops and hairs into plastic bags for transportation back to police headquarters.

  Scheck began cross-examination on the afternoon of April 4. A junior colleague of Fung’s, Andrea Mazzola, had actually assisted the criminalist in processing both crime scenes. It was only Mazzola’s third crime scene, and her inexperience proved a matter of some embarrassment to the prosecution. Scheck began exploring whether, in earlier testimony, Fung had exaggerated his own activities in order to play down the role of his novice accomplice. In a pattern that would recur throughout this long cross-examination, Fung at first denied that he had ever before given misleading testimony, but then, pummeled by Scheck, he admitted defeat.

  “So you didn’t tell the grand jury that Andrea Mazzola was actually the one that swatched that red stain off the handle of the Bronco, right?”

  “At the time—” Fung stumbled.

  “Did you tell them that?”

  “No.”

  “You said you did it.”

  “Yes,” said Fung.

  “And you said the same thing about stain four [at Rockingham]?”

  “Yes.”

  “Five?”

  “Yes.”

  “Six?”

  “I don’t recall,” Fung said, sighing, “but yes.”

  Scheck thus began by establishing that Fung had made repeated misstatements about the evidence during previous sworn testimony. In Fung’s direct testimony, Goldberg could have previewed these problems—fronted them, as lawyers say—but he left Fung to fend for himself against Scheck’s meticulously prepared onslaught.

  Having decimated Fung’s credibility, Scheck then went after his competence. Using both police and news media photographs of the crime scene to make his point, Scheck established that Fung had neglected to pick up a piece of paper near Goldman’s feet; that a blanket covering Nicole’s body could have transferred evidence fibers from inside the house; that the glove and the envelope holding Juditha Brown�
��s glasses had been collected after Ron Goldman’s body was dragged over them by the coroner.

  This went on for days—a medley of Fung’s mistakes, some trivial, some not. Large purple blotches that looked like bruises began to appear under Fung’s eyes. First Fung said he was sure that he never collected evidence with his bare hands; then he wasn’t sure. First he was positive that he hadn’t collected any evidence until the coroner’s representatives had left the scene; then, after seeing a video, Fung conceded that he had. No, he probably didn’t change his rubber gloves as often as he should have. No, he hadn’t seen any soil inside Simpson’s home at Rockingham. Yes, he should have taken larger samples of blood from O.J.’s Bronco. No, he hadn’t noticed any blood on Simpson’s socks when he first picked them up at the foot of O.J.’s bed at Rockingham. At least some of these flaws could be attributed to the LAPD’s underfunding of its Scientific Investigative Division (and undertraining of its personnel), but whatever the reasons, the failures reflected on the prosecution’s case against O.J. Simpson. It was a brilliant—and devastating—cross-examination.

  These efforts served a larger goal than merely embarrassing Dennis Fung; Scheck used them to offer a comprehensive view of the evidence. His dissection of the blood evidence on the back gate at Bundy was a classic demonstration of the Scheck method. Through sheer intellectual calisthenics, Scheck not only neutralized some of the most powerful evidence in the case against Simpson but turned it into arguable proof of a police conspiracy against him.

  On first blush, it was devastating evidence. Many of the first cops on the scene noticed the bloody smudge on the back gate; the blood was located just where an intruder might put his left hand to open the gate and leave the pathway that ran along the side of Nicole’s house. Fuhrman referred to the blood on the back gate in three separate entries in his contemporaneous notes from the crime scene. The DNA tests on the bloody smudge came back as virtually conclusive. There was only a 1 in 57 billion chance that the blood belonged to someone other than O.J. Simpson—who, of course, had a cut on his left hand on the morning after the murders. There are men on death row with far less persuasive evidence against them.