The Search for Justice (11 page)

The district attorney position in Los Angeles is a political one; candidates run for election every four years. Historically,
incumbents pay the price for losing high-profile criminal cases. For instance, the renowned McMartin Pre-School molestation
case (which dragged on for an unprecedented six years) made Robert Philobosian vulnerable to Ira Reiner. After the acquittal
of the McMartin defendants and the defendants in the first Rodney King trial, Reiner gave way to Gil Garcetti. Now, in the
wake of the Menendez hung jury and the Reginald Denny trial, Garcetti needed O.J. ’s case as political damage control. The
question, then, was not whether an indictment would be returned, the question was how soon.

There are two ways for a felony charge to be brought against someone in the state of California. One way is for the police,
after an investigation, to submit charges to the district attorney, who then simply signs the complaint, has an arrest warrant
issued, and charges someone with that felony, at which point a preliminary hearing takes place. At a preliminary hearing the
prosecution presents witnesses under oath, and the rules of evidence are greatly relaxed; for instance, hearsay evidence is
admissible. Defense cross-examination is allowed but generally very restricted. The burden on the prosecution is light; they
only have to show that a crime has been committed and that there is a strong likelihood that the person charged is guilty.

The second way for a felony charge to be brought is for the prosecutor to bring a case before the grand jury. The proceedings
are secret, and there are no rules of evidence, no judge, no cross-examination. Only the prosecution is present; the defendant
and defense counsel are not. If sixteen members of that jury vote for an indictment, a person is then charged criminally,
and the matter goes directly to trial.

The term “grand jury investigation” is a misnomer. Although legally empowered with the ability to begin investigations on
their own, grand juries in California—and indeed, in most American jurisdictions—are a powerful tool in the prosecution ’s
arsenal. Traditionally a body that meets in secret to investigate corruption or allegations with political overtones, a grand
jury is made up of citizens (the number depends on the size of the county ’s population; there were twenty-three people hearing
the Simpson case) chosen after being nominated by judges. They serve for a term, rather than for a case—a period of one year
(in California; eighteen months in most other jurisdictions)—and have the power to subpoena, investigate, and indict; they
can charge an individual with a crime (called a “true bill”) or reject charges (called a “not-true bill”).

Grand juries are a potent prosecution tool because they compel witnesses to come forward who might otherwise be reluctant
to do so. They ’re a political tool as well, allowing the district attorney to step back from filing charges independently,
letting the grand jury do it instead—which is especially important in politically sensitive cases or instances where the potential
defendant is either popular or powerful. Within hours of O.J. ’s arrest, we knew that Garcetti was going to the grand jury.

After the district attorney ’s TV blitz, I quickly called Gerald Uelmen and Alan Dershowitz, and they agreed with me that
he had gone over the line. Making out-of-court statements that speculate on guilty pleas and mental defenses raise more than
a few serious questions; and when the head of the largest district attorney ’s office in the country announces categorically,
just days after a murder, that the case is solved—before any meaningful forensic examinations have taken place, before any
DNA
analysis—it tilts the strategic weight heavily to the prosecution ’s side.

“An independent review from the grand jury is out of the question now,” I told Dershowitz and Uelmen. “I think we should consider
filing a motion to disqualify the grand jury, shut it down, based on prosecutorial misconduct.”

Their reaction was hardly a vote of confidence. Gerry said we had
no
chance for the motion to prevail; Alan, ever the optimist, thought it was worth giving it a try but acknowledged that our
chances weren ’t great. Nevertheless, with Sara Caplan ’s assistance, we started looking for precedents. Yet we couldn ’t
find a single case—in the entire country—that had ever managed to stop a grand jury before deliberation.

“I want to pursue it anyway,” I insisted. “Garcetti ’s gone too far, he ’s writing ‘case closed ’ on this before we ’ve even
begun, and he ’s doing it in public.” In fact, I believed that when Garcetti opened up on us with his public-relations big
guns, he also opened up a hole big enough to drive the Constitution through.

For days, Uelmen, Dershowitz, Sara and I prepared separate drafts on how to approach this; the ultimate motion would incorporate
everyone ’s thoughts and research, but the thrust of the argument remained prosecutorial misconduct. And while we were working—fully
aware that the grand jury was hearing secret testimony at the same time—the 911 tapes were released.

In response to a demand from news organizations citing California ’s Public Records Act, L.A. city attorney James Hahn had
released tape-recordings of phone calls that Nicole Brown Simpson had made in 199, to the 911 police emergency number. They
were being played on radio and television broadcasts, and the transcript of the tapes was being read, not just in Los Angeles
but all across the country.

I had an immediate visceral reaction to the tapes, and not just because they related to O.J. The previous year, I had represented
Tina Sinatra in her action against James Farentino, her former companion. After their five-year relationship ended, Farentino
had begun harassing Tina, leaving frightening messages,
up to fifty or sixty a day at one point, on her phone and fax machines. Although he never physically abused her, the angry
messages included threats of physical violence or death to her and members of her family, as well as destruction of property.
Tina never took the threats lightly; Farentino was known to have a temper, and a recurring battle with alcohol, which she
knew exacerbated his behavior. Caught between her compassion for him, and her growing fears for her own safety, Tina waited
for months before telling anyone what was going on. “I knew it was out of control,” she said, “but I was embarrassed, and
scared for him.”

When she finally reported the matter to the police, they were sympathetic, but because the couple was not living together,
and because there were never any physical acts of violence, there was very little they could do. Tina obtained a restraining
order that forbade Farentino to contact her, but as most victims discover, weaknesses in enforcement can make a restraining
order an empty remedy. “We can ’t make an arrest until someone is hurt” is a frequent response. And besides, how do you restrain
a fax machine? That ’s when Tina came to me, completely stressed out, angry, and frightened. She needed to find a way to stop
Farentino before his behavior grew worse, which she absolutely believed would happen.

Bill Pavelic began an investigation that traced the pattern of phone and fax messages, establishing clearly that they were
coming from Farentino. We then went to Los Angeles city attorney James Hahn, who has been very active in pursuing victims
’ rights, and presented him with our information. The constantly escalating threats and Farentino ’s refusal to abide by the
restraining order were sufficient to bring the case into the realm of the state ’s stalking laws. At that time, stalking was
a misdemeanor in California; now it ’s a felony.

Farentino was arrested and charged with twenty-four misdemeanor counts of stalking. He ultimately pleaded no contest to one
count and was sentenced to thirty-six months probation and a regimen of psychiatric and alcohol counseling. The legal remedy
and the subsequent treatment were successful; both parties
have now gone on with their lives. However, when I heard the sound of Nicole ’s voice on the 911 tapes, I heard the same fear
that Tina had experienced. Indeed, anyone who heard the tapes—and much of the world did—would never be able to forget the
sound of the frightened woman and the enraged man.

The police department blamed the district attorney ’s office for releasing the tapes; Garcetti ’s office blamed the city attorney.
I didn ’t care at that point whose fault it was, I only knew that the tapes should never have been released at all. How could
a jury be impaneled after this? How could O.J. ever get a fair trial?

Chief of Police Willie Williams quickly agreed to impose a gag order on his department, and Garcetti pledged that no matter
what pressures the press brought to bear, absolutely nothing more would be released by his office or the L.A.P.D. He said
he disagreed with Hahn ’s release of the tapes and claimed that in spite of the publicity, he had no doubt about the possibility
of an impartial jury and a fair trial for O.J. “I ’m confident,” he said, “that we can find twelve jurors who know very little
about this.” And where will you find them? I wondered. Living in caves?

That same week,
Time
and
Newsweek
ran identical covers of the police photograph that had been taken when O.J. was arrested after the Bronco chase. But
Time
had tinkered with their version, making O.J. ’s skin tone darker than it actually is, much darker than the original photo
itself. This is getting out of hand, I thought angrily. This isn ’t a courtroom sketch artist ’s rendering they ’re fooling
with here, it ’s a
real photograph
. What were the editors thinking? Why make a black man look blacker than he is?

There was an immediate, and negative, public response to the photo “enhancement” and a subsequent apology from
Time ’s
editors, but I guessed that the people who read the apology were a tiny fraction of those who had seen the magazine cover.

Finally, at 8:30 on June 24—exactly one week after the Bronco ride—Gerry Uelmen and I were ready to file our motion to stop
the grand jury. On the way to court, Uelmen
looked at me and said, “Bob, we ’re right to file this, but you know we ’re going to lose.”

“I think we ’re going to win,” I said. “Because we ’re right.” If we won, it would be an unprecedented legal victory; if we
lost, at the very least it would be the beginning of what lawyers call “building the record,” forming the basis for an appeal
in case of a conviction.

We filed our motion with Superior Court Judge Lance A. Ito (who at that time was the assistant supervising judge of the criminal
division but had not yet been assigned to hear this case). Our brief requested that he question each of the twenty-three grand
jurors to determine if they ’d heard either Garcetti ’s statements or the 911 tapes and might possibly be influenced by them.
We also brought up the fact that a day or two earlier Marcia Clark had publicly concluded that O.J. was the “sole murderer.”

“The district attorney ’s office has improperly released, and massive publicity has been given by the media to, inadmissible
evidence in this case, the best example of which was the massive airing… of the 911 tapes,” we argued.

“Before any charges were brought or conclusive tests could be run, the public was made aware of bloodstains on driveways,
matching blood types, bloody gloves, and the alleged weapon,” read our motion. Uelmen stated that the “barrage of publicity”
had been “unprecedented.”

While we were presenting our motion before Judge Ito, Judge Cecil Mills, the supervising judge of the Superior Court (for
both civil and criminal court), was interviewing the grand jurors, reportedly in response to a request from Gil Garcetti,
perhaps motivated by the copy of our motion in his hand. What Mills was hearing from the jurors disturbed him, and at 10:30
that morning, he issued his ruling.

“Having made the inquiry, the court finds that as an unanticipated result of the unique circumstances of this matter pending
before the 1993–1994 grand jury, some jurors have become aware of potentially prejudicial matters not officially presented
to them by the district attorney,” he said. He was thus dismissing
the grand jury “to preclude any unintended consideration of prejudicial matter and protect the due process rights of Mr. Simpson
and the integrity of the grand jury process.”

We had won it! We had gotten a grand jury dismissed before they ’d ruled, and we had created legal precedent at the same time.
And a good thing, too: At the point at which they were stopped, the jurors had heard all the testimony and were on the verge
of taking a vote. One dismissed grand juror was quoted as saying, “Almost everything that the jury knows has been reported
in the paper. I would say if you read the papers, you know everything the grand jury knows.” Included in our motion was a
request for the transcript of the grand jury proceedings, which would normally have been kept secret. The transcript would
give us a good preview of the prosecution witness lineup.

I felt like we had been taking a beating for days, and now the momentum had finally, finally shifted in our favor. Now the
district attorney would either have to impanel a new grand jury or schedule a preliminary hearing. In fact, California law
entitles people in custody to preliminary hearings within ten days of being charged.

Rarely, however, can anyone meet that deadline. Courts are crowded, lawyers need time to prepare, and a “waiver of time” is
routinely granted to the defense to allow additional preparation time. We heard reports that just after the grand jury was
dismissed, Garcetti held a meeting of his assistant district attorneys in which he asked how many of them had ever tried a
preliminary hearing with me. Almost all the hands went up. When he facetiously countered with, “And how many of those hearings
started on time?” most of the hands went down. So the prosecution ’s office thought they were safe in assuming that with a
high-profile double homicide, and a defendant possibly facing the death penalty, we would be in dire need of a waiver of time
before beginning a preliminary hearing. And I knew that if we asked for it, we could get it. Which would, in turn, give
them
more time. I decided not to ask for it.