Let’s look at the Simpson case and Simpson’s lawyers, and I will then tie it all in to the damage the above myth most likely caused the prosecution’s case. It’s not going to be a pretty or flattering picture I paint of the trial abilities of the main lawyers for the defense. (Specific examples of their incompetence are found in the Epilogue.) If any of you are thinking, “Well, they won, didn’t they?” my reply is that surely no intelligent person can assess someone’s performance simply by looking at the final result. The result can frequently be traceable to factors and dynamics that have nothing at all to do with the abilities of the victor. I intend to demonstrate throughout this book that the defense won this case because of the terrible jury that heard it and the incredible incompetence of the prosecutors, not because of anything special at all done by the main lawyers for the defense.
Right from the very beginning, the media immediately started referring to the lawyers for the defense (at that time, the lead defense attorney was Robert Shapiro) as “the best that money could buy.” Why? Because they immediately assumed that if your life or liberty is on the line and you have a lot of money, you automatically get the best. Because that is the way it should be (which presupposes, erroneously, that the defendant would have any idea at all what trial lawyer to employ, or if he sought the advice of lawyer friends of his, that they would have any idea who the best criminal trial lawyers were, or had ever seen any of them in action), these simpletons unthinkingly assume that’s the way it actually is,
totally ignoring the backgrounds and records of the lawyers involved
.
The reality is that most celebrity defendants are extremely unknowledgeable, naïve, and vulnerable, and if they get into trouble they usually call their lawyer friends who handle criminal cases, and if they don’t know any, they call their business lawyers, who then refer them to lawyer friends of theirs. It’s very incestuous, and that’s apparently what happened with Simpson.
The first lawyer he called was a close friend of his, a celebrity lawyer named Howard Weitzman, who I don’t believe has ever handled a murder case in his life. What had Weitzman done recently in the legal arena? The actress Kim Basinger had called him to represent her when she was sued for her backing out of a film,
Boxing Helena
, in which she had originally agreed to star. The strong consensus in the entertainment industry was that this was a highly winnable case for Ms. Basinger, since she backed out when she learned there were nude scenes, and the central character was too unsympathetic. Perhaps even more important, there had been only an oral agreement between her and the plaintiff producers, not a written contract, and in Hollywood, backing out of oral agreements is so common it’s rarely the subject of a suit. Samuel Goldwyn, the master of malaprop, once said, “A verbal contract isn’t worth the paper it’s written on.” And the further consensus was that if she did happen to lose, the damages would be very negligible. Weitzman not only lost, but the jury returned an award against his client that was so great, $8.1 million, that Ms. Basinger was forced into bankruptcy.
Weitzman’s only big successful criminal case was the drug-trafficking case of John DeLorean. In the DeLorean case, DeLorean is seen engaging in a cocaine transaction on film, yet he was found not guilty. That indeed would be pulling a rabbit out of the hat if Weitzman and his co-counsel Donald Re had convinced the jury that DeLorean did not, in fact, engage in the transaction. But that wasn’t the issue. The issue was whether DeLorean had been entrapped, and since there was considerable evidence he had been, this was a relatively easy case for the defense. You don’t even reach the issue of entrapment in a criminal case unless the jury concludes that the defendant
did
commit the crime.
How did Weitzman do during the brief period he represented Simpson? I was on
Larry King Live
with Johnnie Cochran the night before the slow-speed chase and Simpson’s arrest. It was long before Cochran became a member of the defense team, and Cochran said during the show that if he were Simpson’s lawyer he wouldn’t let him talk with the police. I interjected that his first lawyer (Weitzman) already had, and that it was a monumental blunder, an enormous gift to the prosecution. Even if Simpson was innocent, in the emotionally traumatic state he was in on the afternoon after the murders he could have said things deleterious to his interests. But if he was guilty, it would have been virtually impossible for him to be grilled by detectives for over half an hour, trying to walk between raindrops, without telling one provable lie after another, without making one inconsistent or conflicting statement after another, all of which could be used by the DA to show a consciousness of guilt.
A few days after I said this on national TV, and others started to criticize him, Weitzman said he had tried to stop Simpson from talking with the police. But it would seem that the only reason Simpson would have had for consenting to be questioned by the police is that if he refused he’d look guilty. However, if his lawyer was advising him not to talk and, if necessary, insisting that he not do so, he had a way out. “Look, guys, I had nothing to do with these murders, and I’d love to talk with you, but my lawyer won’t let me.” That would have been the end of it. Period. Whether or not Weitzman advised Simpson not to be interviewed, we do not know. What we do know is that Simpson made sufficiently incriminating statements in the interview alone to convict him of murder, but because of the remarkable incompetence of the DA’s office, the jury never heard the statement. I will have much more to say about this later.
And astonishingly, while Weitzman’s client, Simpson, was being interrogated by the
LAPD
about a double murder for which he was the prime suspect, Weitzman chose not to be at his client’s side. Even a first-year law student, even laypeople reading this book, would know the advisability of Simpson’s lawyer being present during the interrogation. But you have to realize that Weitzman was considered to be one of the premier criminal defense attorneys in town, and brilliant, high-powered lawyers do things like this, right?
Detective Philip Vannatter testified at the trial that Weitzman had elected to go out to lunch rather than sit in on the interview, his only request to the detectives being that they record the interview. Weitzman has since come up with an allegation I have never heard before in Los Angeles law enforcement, one that is absurd on its face. In defense of his conduct, he told the media that “when Mr. Simpson chose to be interviewed by the police, contrary to my advice, he and I were told that there would be no interview if he wanted an attorney present.” No one, but no one, could possibly believe an allegation like that. As Will Rogers once said, “It’s the most unheard of thing I ever heard of.” At no time anywhere near the interview did Weitzman complain publicly (as he would be expected to do) or privately to the
LAPD
or DA’s office that he wasn’t allowed to be present during the interrogation of his client. What we do know is that Weitzman walked outside Parker Center during the interview, and when waiting reporters approached him, he said: “O.J. is upstairs trying to get his wits about him, and is answering whatever questions he can to help law enforcement investigate this case.” Not even Simpson, Weitzman’s client at the time, supports Weitzman’s story. The detectives gave Simpson his Miranda rights at the start of the interrogation, which included (I’ve heard the audio of the interview) telling him, “You have the right to speak to an attorney
and to have an attorney present during the questioning
.” Simpson said he understood all his rights, and when they then asked him, “Do you give up your right to have an attorney present while we talk?” he responded, “Mmm-hmm. Yes.”
My guess is that Simpson had convinced Weitzman of his innocence, and Weitzman had assumed no great harm could come to Simpson as a result of the interview. Weitzman either quit or was fired as Simpson’s lawyer, and Robert Shapiro, another celebrity lawyer like Weitzman, became the lead lawyer.
Shapiro has always been a well-respected lawyer in the legal community, but he has never distinguished himself as a trial lawyer. He has been known mostly as a plea bargainer. In my
Playboy
interview, which as I’ve said came out before the trial started, I pointed out that the Simpson case was apparently Shapiro’s first murder
trial
. (He did represent Christian Brando, Marlon’s son, in a homicide case a few years earlier, but he pled Brando guilty and Brando was sentenced to ten years.) That revelation in the interview shocked a lot of people. There were 1,159 journalists credentialed to cover the upcoming trial, with very little to do except do research on the case and its participants, as well as interview witnesses who were expected to testify in the trial, yet to my knowledge not one of them had learned that Simpson’s chief defense attorney, in a case they had already christened “the trial of the century,” had never tried a murder case before.
It wasn’t too long after the preliminary hearing in July 1994 that Johnnie Cochran joined the defense team and soon emerged as Simpson’s lead trial lawyer. I had tried a few criminal jury cases with him years earlier when I was down at the DA’s office and recalled him to be above average, which, of course, isn’t saying anything. Cochran was one of those people who (prior to the Simpson case) it had always been hard not to like. He has a ready smile and warm, jovial manner with everyone, rolls with the punches, and doesn’t project arrogance or pomposity. Cochran’s motto seems to be “Live and let live.” He has always been very well liked and respected in the legal community and is particularly known and respected in the black community. Prior to the Simpson case, however, although he may have done so, I had never heard of Cochran ever winning a murder case before a jury. (He’s claimed to reporters that he has won a great many, but not one reporter has ever thought to ask him to name just one of these cases.) In fact, in his thirty-two-year career as a lawyer in Los Angeles, the only murder case I’d ever heard of his trying before a jury that even got minimal coverage in the newspapers was when he defended a Black Panther named Elmer “Geronimo” Pratt in 1972 for having murdered a white schoolteacher on a Santa Monica tennis court. Cochran lost that case and Pratt was sentenced to life imprisonment.
Cochran had mostly made a name for himself as a civil lawyer, not a criminal lawyer, successfully representing several black plaintiffs in police brutality cases against the
LAPD
and L.A. Sheriff’s Department. Cochran was also a friend of Simpson’s and had been for years, going back to when Simpson was married to his first wife, Marguerite (their children would sometimes play together). Along with former law school dean Gerald Uelman, who hadn’t tried a case for years and years, Shapiro and Cochran were the only lawyers representing Simpson in court during most of the court proceedings prior to the trial.
I had commented in the
Playboy
piece that for all of Simpson’s money, it was nothing short of remarkable that he still didn’t have one lawyer representing him in court who had demonstrated any real competence in murder cases. But if you were to listen to the media throughout this period, one would never have known this. Their reasoning was that if Shapiro and Cochran were on this big celebrity case, and presumably charging a lot of money, they must be the best. Who am I to quarrel with such powerful logic? When Mike Tyson was on trial, the media said the same thing—that he had the best defense team money could buy. You know, of course, where Mike spent the past several years. This is what one national magazine said later about Tyson: “He watched as his $5,000-a-day attorney fumbled his way through a closing argument.”
F. Lee Bailey, an experienced and savvy trial lawyer who
had
distinguished himself in several murder cases, hadn’t yet appeared in court, and no one knew what his role was going to be. Lee’s last big case had been the Patti Hearst bank robbery case over twenty years earlier in San Francisco. Because the prosecution had conceded that Hearst had, in fact, been kidnapped by the
SLA
and she had no prior history of criminality, many in the legal community thought this was a very winnable case. But among other things, Lee gave a very short and weak final summation, and his client was convicted, propelling Lee’s career into a seemingly irreversible decline since that time. He and Shapiro had been associated for years in the practice of law, each appearing on the other’s letterhead, and Bailey was the godfather to one of Shapiro’s sons. It was believed that Shapiro wanted to bring Bailey aboard, albeit in a limited way, to resuscitate Bailey’s career and at the same time avail himself of Lee’s considerable intelligence and experience.
Harvard Law professor Alan Dershowitz was also aboard. Alan has certainly distinguished himself in the legal profession, but it has been as a prominent appellate lawyer, not a trial lawyer. He is someone you go to
after
you’ve been convicted, though it took months for the media to finally figure this out. To almost all of them, in fact, Dershowitz was routinely reported at the time to be another name criminal defense attorney representing Simpson in his upcoming trial, one who had successfully defended, they would write, Claus von Bülow in his trial for attempted murder. But Dershowitz had not defended von Bülow, had not handled a single witness at von Bülow’s trial. His involvement, admittedly critical, had been in securing a reversal, on appeal, of von Bülow’s earlier conviction so there could
be
a second trial. To the media this was too much of a subtlety for their minds to digest without very substantial reflection.
The two
DNA
lawyers from New York, Barry Scheck and Peter Neufeld, had not yet appeared in court and were rarely, if ever, referred to by the media. But it was unnecessary. The media already had Shapiro and Cochran in court, and Lee Bailey in the wings. It had become holy writ—and to my knowledge, virtually all members of the media accepted the apparently unassailable verity—that Shapiro, Cochran, and Bailey were the very best lawyers in the country that money could buy. They were “the Dream Team,” as almost all of the media started to call them, and no one was going to change that. It had become official.