I walked down the empty halls to Bill’s office. To tell you the truth, I liked this place a whole lot better when it was deserted. The feeling of being alone in the office gave me a sense of freedom that I found invigorating and at the same time peaceful. But right now I was feeling low and needed bucking up.
Bill’s door was open. I could see him hunched over his desk, poring over a document tidily flagged with Post-its.
“How many have you gotten through?” I asked him dourly.
“Only two. I can’t believe it.”
“We’ve gotta find a better system,” I told him.
We heard a rustle in the hall, and just then Jonathan Fairtlough stuck his head in the door. Jonathan, a freckled young Irishman with an unruly shock of brown hair, had been one of our first picks for the team. He was full of energy, optimism, and expansive ideas for graphic presentations. Jonathan was also an electronics genius, whom we called in whenever the computers or even the copiers went on the blink. He never seemed to get tired. At least not at that point.
“Hey, boss,” he said. It was directed at both of us. “Anything I can do for you?”
“As a matter of fact,” I told him, “we’re trying to come up with a way to streamline the summaries. Any ideas?”
Jonathan thought for a moment.
“Why don’t you just dictate the important stuff into a minicassette? Then get the secretaries to type them up for you.”
Bill and I looked at each other. Out of the mouths of babes!
After that, we picked up our speed a couple of knots, but we still remained in danger of drowning beneath swells of detail. We needed some way to make the task more concrete, more visual. I recalled a system I’d had picked up from another D.A. named Pat Dixon. He’d tried a lot of long-cause cases, and he’d devised a system for jury selection. Before voir dire, he would make up a pack of yellow cardboard cards, about three inches by three, one for each juror in the pool. He’d jot down pertinent information about each one on the front. Then he’d deal the cards. Twelve of them arranged in two rows of six, a simulated jury box. This helped him to visualize what those twelve people, each with his own history and set of prejudices, might look sitting next to the others. He’d take one candidate-maybe a crotchety contrarian-and try to figure out the rating each side would give him. Then he’d try to figure out which side was likely to get him struck for cause and which would have to use a peremptory challenge. The contrarian would stay, or he’d go. Pat would do this until he had combined the cards in all their plausible permutations. Whenever I went past his office, I’d see him sitting, staring hour after hour at the cards before him, playing this game of lawyer’s solitaire.
So I made up a pack for Bill and me. Three hundred yellow cardboard cards. In the late afternoon, or whenever we had a few moments, Bill and I would meet in one of our offices and pull out the pack and start dealing. We’d add a juror to the rotation to see how he or she fit into the mix. We’d rotate the least desirable candidate out. We kept looking for the perfect ensemble. Or at least an acceptable one.
It was dismal going. Any way you shuffled the deck, this was far and away the worst pool of jurors either of us had ever seen. Few of these people had ever taken college courses, let alone gotten a degree. Many were out of work. No one had anything good to say about the LAPD. An uncomfortably large percentage of them either knew someone who had been arrested or had been arrested themselves. The Bronco chase seemed to arouse in them nothing but regret for the sufferings of the defendant. “Poor guy, gone to visit his wife’s grave and all he gets is grief from the law.” At the very worst, Simpson’s actions were seen as “bizarre.” Almost no one believed that he had been trying to escape.
Before the questionnaires came in, Bill and I had been going back and forth on whether we should introduce the Bronco chase as evidence. Do we offer up the eight thousand bucks, the passport, the fake mustache and beard? To us, of course, these items seemed very incriminating. But in light of the responses we were getting on the questionnaire, introducing them carried substantial risks. First of all, the money had been found on Cowlings, not Simpson. The goatee, mustache, and passport were found in Cowlings’s Bronco. Proving that Simpson even knew about these items would be difficult. I was convinced he did, but demonstrating it was another matter.
Worse, if we introduced the Bronco evidence, it would give the defense an opening to slip in the records of the calls Simpson had made from his cell phone while motoring up the 405. We’d get the tape of Tom Lange talking him in off the freeway, telling him what a wonderful guy he was, how his children needed him; in the background, we’d hear Simpson’s groans of anguish. We’d get a parade of witnesses who would recall the tearful protestations of innocence and grief. All the defendant’s denials would come in through the back door of these phone-call witnesses. O. J. Simpson would be allowed, in effect, to offer emotional testimony on his own behalf without ever having to take the witness stand. (In a criminal trial, only the defense can call the defendant to the stand.) Whatever hope we had of getting to cross-examine Simpson would wash right out the courtroom door in a river of crocodile tears.
To make the risk worthwhile, we’d needed to offer proof of flight so unequivocal that it would expose the phone calls to family and friends as the shams they were. Now, I might hear one of these tapes and think, You sniveling bastard; what about the pair you murdered? But to our prospective jurors-at least the ones who revealed themselves in these questionnaires as an unchartered chapter of the Juice Fan Club-he would appear nothing but sympathetic.
During the months since the verdict, I’ve gotten hammered repeatedly for “failing” to introduce evidence from that chase. Certain old armchair warriors have gone so far as to call it a breach of prosecutorial responsibility. Let me set the record straight. No prosecutor is compelled to produce evidence that he feels might work to his detriment. There is no right or wrong in this matter. It’s a judgment call. I decided to keep it out; another prosecutor might have decided differently. But once he’d made that call, he’d better have been prepared to take the consequences should the thing jump back and bite him in the ass.
If I had it to do again, with the jury God saw fit to grant us, I’d make exactly the same call.
CAR TAPE. October 2, 1994… Constant anxiety… I feel like I can’t breathe thinking about all the work I have to do, and I don’t have the time for it. I’m so tired. Tired of seeing my face in the magazines and… tired of everything. Just plain tired.
By the time I’d read through eighty of the questionnaires, I was so depressed I could hardly speak. On our scale of 1 to 5, only ten ranked as high as a 4. The rest of the pool was grouped down around 2 or 1½.
But the worst of it was the lying.
An anthropologist reading through these questionnaires would probably conclude that he’d stumbled upon the remnants of some lost civilization. In the midst of the most media-saturated city in the world, we’d somehow managed to find three hundred human beings who claimed never to watch television, listen to the radio, or read newspapers. These pristine souls insisted that they didn’t know anything about a case that permeated every streetcorner conversation between East L.A. and Santa Monica. Under questioning, however, this astounding phenomenon would prove illusory. When we pressed the jurors for specifics about the Bronco chase, it would come out that they’d read and seen a great deal. But on the questionnaires, they told us anything they thought we wanted to hear, just to get on the jury.