Not a chance, Bobby. A defendant charged with a capital crime is ineligible for bail under state law-even if the D.A. has decided not to ask for the death penalty.
But we couldn’t look to Lance Ito for decisive action on such an obvious ruling. Resnick’s Private Diary had knocked the judge off his moorings. He called in the jurors one by one to ask what, if anything, they knew about the book. Nearly every one of them admitted, either voluntarily or after some strenuous questioning, to having some knowledge of it. Ito sent the jury pool home for two days-a particularly boneheaded move under the circumstances, since it sent the message that the book was a very big deal. Any of them who hadn’t read it, of course, were headed straight for Barnes and Noble.
The next day, Ito held the bail hearing, closed to the public and press. I got up and argued that the option put forward by defense counsel was “unacceptable to the People,” since what the defendant was asking for was impossible under state law. Even if it that hadn’t been so, O. J. Simpson had already demonstrated before about 95 million fellow citizens that he had a propensity to flee. I reminded the court about the pursuit up the 405. I reminded Ito about the cash, the passport, the disguise. This defendant had made one obvious attempt at flight. It showed his consciousness of guilt. What would stop him from making another one?
“If the defendant wants a continuance,” I said, “he should remain in custody as would any other defendant charged with a double homicide and special circumstances.”
As I turned to leave the podium, I caught Simpson out of the corner of my eye. He was shifting in his seat, his face contorted with-what was it? Rage? Frustration? Disbelief? His lawyers had probably told him that he had a good shot at making bail. And here I’d gone bringing up all that Bronco business. Being at the mercy of a woman had to be O. J. Simpson’s personal idea of hell. That gave me at least a moment of satisfaction. But as so often happened in TFC, even my smallest triumphs were short-lived. Johnnie did an end run around me, announcing that his client wanted to “address the court.”
If the defendant has counsel there to speak for him, he shouldn’t be allowed to speak directly to the court unless he’s prepared to take the witness stand.
I started to object, but it was too late. Lance had granted the request.
“How do you feel?” he inquired amiably of Simpson, who now stood, hands clasped in front of him, the very picture of wounded virtue. How did he feel?
“Well,” he complained, “I feel I’ve been attacked here today.”
Attacked? Does he not get it that he’s the defendant in a double homicide?
“I’m an innocent man,” he continued. “I want to get to the jury… I want to get it over with as soon as I can. I have two young kids out there. That’s my only concern… I’ve got two young kids out there that don’t have a mother…”
It disgusted me to the point of nausea to hear this man use his children this way.
And then Simpson turned toward me. I didn’t meet his eyes-not because I was intimidated by him; I just didn’t want to give him the satisfaction of knowing he had my attention.
“Mrs. Clark, Miss Clark, said I was trying to run,” he fumbled. “Everyone knows that I called my father-in-law… I admit I was not in the right frame of mind at the time, I was trying to get to my wife…”
“Excuse me,” Shapiro broke in, apparently agitated. It seemed to me that he was trying to create the impression that his client was straying out from under his control.
“I was headed back home,” Simpson continued.
Shapiro reared up theatrically and threatened to resign if his client kept talking. Finally, Simpson said, “Thank you,” and sat down.
Man, I thought, I’d love to get him on the witness stand. That monster ego of his would trip him up so bad. He wouldn’t be able to keep his cool with a woman firing hostile questions at him. He was too unstable. If the Dream Team had an ounce of sense, they’d keep him off the stand and try to sneak in these unchallenged statements wherever they could. Just like this one. The saving grace of this outburst, I told myself, was that this hearing was closed and the transcript sealed. I sure didn’t want Simpson’s self-serving spiel reaching the ears of the jurors.
There was a curious atmosphere in the courtroom that day. It was actually pretty relaxed. The cameras were gone. Everyone loosened up a little. Both Shapiro and I let down our guards and vented our frustrations about the jury pool. Bob complained to the judge that jurors wanted to get on this case so badly, they were telling the court whatever they thought we wanted to hear. His implication: they were lying to get on this case so that they could convict O. J. Simpson.
I agreed that they were telling tall tales, but for quite the opposite reason.
“Many, if not most,” I argued to Ito, “are lying to the detriment of the People because they are sitting there as the fans of this defendant saying, ‘We want to get on this jury… so we can acquit this man, no matter what.’… I wish that we could only put all the jurors on polygraph, because if the People could get just twelve fair-minded, impartial jurors to listen to the evidence, then we know what the outcome will be.”
The “polygraph” remark was a joke. Inside the courtroom that day, it was taken as a joke. Johnnie even laughed out loud. I didn’t think any more about it. I was more self-conscious about having accused our jurors of lying. But, again, I comforted myself with the fact that this session was closed, the transcript sealed. I had no reason to believe that that L-word would ever reach their ears.
By the time the session came to an end, Ito had checked the penal code, which confirmed what we all knew. The law would not allow bail for O. J. Simpson. End of debate. But not the end of mischief.
Bill requested that the transcript of this closed hearing be kept under seal.
Shapiro rejoined, “We want it open.” The defense clearly wanted Simpson’s unsworn testimony to become public for the edification of the jury pool.
“Judge, you can’t do this!” I protested frantically. “This is very incendiary… both sides accusing the jurors of lying. The defendant making an uncross-examined, unsworn statement about his innocence. None of this is fair. None of this is right.”
Ito released the transcript.
As I look back upon this episode, I still can’t figure out what possessed Lance. I know he was coming under a lot of pressure from the media, but that’s not enough to have caused him to act so unwisely. Lawyers need to know that there is someplace they can talk where their statements will be held in confidence. They shouldn’t be lulled into a false sense of security, then have the rug pulled out from under them. He could have kept the transcript sealed and never worried about being reversed on appeal. I think his heart was in the right place, but he was so weak. He let himself get pushed around by the defense.
I was totally screwed. I’d accused the jurors of lying. Can you imagine having to go back in and talk to these people after they read the L-word in their morning paper? I learned my lesson: never say anything in chambers or closed hearing that you wouldn’t say in public.
By the next day, those transcripts were everywhere. Shapiro exploited the opportunity to hold me up to ridicule. Oddly, it wasn’t the L-word he seized upon. I guess that’s because he, too, had accused the jurors of lying. No, it was the P-word. The “polygraph” comment, he told reporters, “was the most idiotic statement ever made in a court of law.”