The UCLA student had another drawback from the defense’s perspective: he was Japanese. People from Asian backgrounds, courtroom wisdom goes, are law-and-order types. Naturally, we try to get them on juries, and the defense always tries to keep them off. Defense lawyers have to be savvy about this, because if they appear to be targeting jurors on the basis of race, we can file what’s called a Wheeler motion. If it’s successful, the entire jury panel may be dismissed and jury selection will begin all over again. It doesn’t stop there. If a judge grants such a motion, he’s required to inform the state bar, and the offending lawyer can be reprimanded or fined, or both. It’s a real bad mark on your record. But it didn’t keep Shapiro from going after Asians.
There was one elderly Filipino man whose questionnaire indicated a law-abiding attitude. Bill and I knew the defense would find some way to get him off. Since there was nothing in his background that gave grounds for cause, they’d have to use a peremptory. Shapiro should have just struck the guy and moved on. Instead, he went out of his way to humiliate the man.
“Give us your definition of reasonable doubt,” Shapiro commanded imperiously.
It was an obvious attempt to demonstrate the man’s supposed language deficiencies. But asking him to define reasonable doubt? Not even legal scholars can agree what it is. The poor juror blushed, stammered, and asked Shapiro to repeat the question, which he did in an even more challenging tone.
I was absolutely furious. How could Lance, whose own ancestry was Asian, allow minority jurors to be treated like this? In fact Shapiro treated all nonblack jurors with this same sneering contempt. If either Bill or I had tried a stunt like that, we would have been called up to the bench so fast it would have taken your breath away.
Johnnie’s approach was entirely different. He was warm and smooth with every juror. He came from the “call and response” school of voir dire. Johnnie was stupid like a fox. His questions were general, nonconfrontational ones that required only a yes or a no. He made no attempt to draw out a juror’s real thinking. If you’re sure you have a jury pool stacked in your favor, the last thing you want to do is let them talk enough to let slip a basis for cause. Judging from the answers I’d seen on those questionnaires, the pool was packed with O. J. Simpson fans. Why expose them by probing too deeply?
Still, I liked Johnnie, if only because he gave me somebody on the defense side that I could talk to. By that I mean someone who could tack through the choppy swells of a criminal case without losing his sense of humor. Squaring off against Johnnie was fun-at least in the beginning.
He’d come into court and greet me with that big, easy smile. “You’re looking very lovely today, counselor,” he’d say. And I’d reply, “No lovelier than yourself, Mr. Cochran.”
Once, at a sidebar, I grumbled about “this fucking case-TFC”; Johnnie thought that was hilarious. He picked it up from me. His colleagues picked it up from him. By the end of the trial everyone was referring to this case as TFC.
The press caught on gradually to the realignment in our respective camps. At first, the talking heads tended to see this contest as Clark versus Shapiro: Bob and I were the combatants who scrapped with each other in court while our more levelheaded counterparts, Bill and Johnnie, sat back and steered the steady course. As we got further into voir dire, however, that perception changed. My office was still billing Clark and Hodgman as co-counsel, but that didn’t fool anyone. The press could see that I was too aggressive and loud to be anybody’s second chair, or even co-chair. I was the de facto lead on my side. And Johnnie was the lead on his. He’d pulled away, leaving Shapiro in his dust.
It was inevitable, I suppose, that the easy give-and-take I enjoyed with Johnnie should be misinterpreted as a flirtation. There was one very amusing incident that occurred a few weeks after the trial started in earnest. One of the tabloids published a sequence of still photos of Johnnie and me at a public hearing. The jury wasn’t present and I’d been at the podium arguing to introduce some evidence that might have established Ron Goldman’s time of death. This caught Johnnie off guard, and he rushed to argue against in. In the process he put his hands on my elbows and gently moved me away from the microphone.
The gesture took all of three seconds. The camera caught me looking surprised, which I was. It is unusual for lawyers-particularly men and women-to touch each other in court. My guess, if I know Johnnie, is that he did it solely to throw me off my game. Good lawyers sometimes use guerrilla tactics. Okay, fair enough. I can roll with it.
CAR TAPE. October 1994. I don’t see how we can ever get a decent jury on this case. Every misstep in the world that could be made is being made, because all the judge and the defense attorneys care about is looking good in the press.
I’m really appalled at what’s going on, at the deepest level. I really fear for our system of justice. I don’t know how the jury system can continue without some serious revamping. It’s hopeless-we cannot rest easy with the knowledge that a jury will use its common sense and follow the law and the evidence to come to the right verdict. If popular opinion and celebrity and fame and the politically correct view is going to be what really sways the jury, if the jury will disregard the law, disregard the evidence, and everyone expects it to happen, then why bother?
Have you ever had a dream where you try to run but your feet are weights? That was what voir dire was like. Jogging through molasses. Lance had hoped to get through twenty jurors on the first day. We managed only four. We tried to move faster, but Lance, Johnnie, me, everybody seemed to have fallen under some kind of malaise.
On October 18, we were jolted out of our dream state by a bulletin from the real world. That morning on my way into court, I bumped into Ito’s clerk. Deirdre Robertson, a tall, stylish black woman in her thirties, was a classy lady. She had a young daughter and we used to talk about our kids a lot. Deirdre thought that O. J. Simpson was guilty and told me so. She was somebody I’d end up going to a lot for encouragement and solace during the trial.
“You put on the evidence,” she’d tell me. “All you can do is put it in front of them.”
I could tell by her face this morning that something ominous was afoot. We’d be starting late, she told me. Something had come up. When I asked her what, she just shrugged. A few minutes later, Ito huffed in, looking very agitated.
A tell-all had just hit the newsstands. The author, a friend of Nicole’s named Faye Resnick, had written some very damaging things about O. J. Simpson. Ito had worked himself into a lather over the possibility that our jurors might have seen the book. He sent Deirdre out to buy copies for each of us. Then he suspended the voir dire until we could all read it and assess the damage.
I’d already talked to Faye-or at least I’d tried. Early on in the case I’d hooked up with some of Nicole’s buddies, notably Kris Jenner, the former wife of Robert Kardashian, who had since married Olympic decathlon champion Bruce Jenner. Kris was an absolute gem, and she didn’t seem to care much for her ex. She had the strange habit of referring to him as “Kardashian.” I got the feeling they stayed on speaking terms only because they had four children in common. Kris and her friend Candace Garvey put me in touch with several of the Brentwood crowd. Among these was Cynthia “Cici” Shahian, who, coincidentally, was a cousin of Kardashian’s. She’d been elusive at first: I’d leave messages that were never returned. But after a couple of months, she showed up in my office, flanked by Kris and Candace. Cici was extremely valuable. She’d been standing next to Nicole when Nicole got Simpson’s letter threatening to turn her in to the IRS. Cici had been able not only to identify the letter, but to describe Nicole’s furious reaction to it.