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Authors: Robert L Shapiro

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Prosecution attorneys and defense attorneys are officers of the court, both bound by the same rules of evidence and the same
rules of professional conduct. However, our advocacy roles are different. The prosecutor ’s responsibility, according to the
American Bar Association ’s Code of Professional Conduct, is “to seek justice, not merely to convict.” The defense attorney
’s responsibility is “to represent his client zealously within the bounds of the law.” The resulting adversarial presentation
“counters the natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known.”

In
Berger v. United States
(1935), the Supreme Court stated that the prosecutor “is the representative not of an ordinary
party to a controversy, but of a sovereignty… whose interest… in a criminal prosecution is not that it shall win a case, but
that justice shall be done.” Justice means different things to different people. There is legal justice and moral justice.
When most people talk about justice, they ’re talking about moral justice. Did someone commit a crime or not? If so, that
person should be tried, convicted, and punished. If not, he or she should be acquitted. As a defense attorney, however, I
must view justice as our (that is, our country ’s) system of legal justice, which is based not on the assumption of guilt
but on the presumption of innocence. Guilt must be
proven
by the prosecution. And it must be proven beyond a reasonable doubt and to a near certainty within the rules of constitutional
law.

Reasonable doubt is a standard of common sense that is at the heart of our system of justice. Neither the prosecution nor
the defense instructs the jury on that standard; the judge must do it. And judges have been wrestling with the intricacies
and complexities of jury instruction, in both the state and federal courts, in nearly every single trial since the beginning
of our criminal justice system. Ultimately, the questions before a jury are, Have they proved this case to your satisfaction?
Are you sure? If someone near and dear to you—yourself, your relatives, your children—were on trial, and this type of evidence
was presented against that person, would you be confident that you had made the right decision? Or would you be uneasy? Would
you think, Did I do the right thing? Could I be wrong? If you ’re 90 percent certain, that still leaves percent doubt. And
if you have doubts—rational doubts, based not on speculation but on
fact
—then you have no right to convict. Judge William Blackstone anticipated society ’s struggle with this when he said, more
than two hundred years ago, “It is better that ten guilty persons escape than one innocent suffer.”

Society has become so afraid of crime that Americans seem increasingly willing to forego the Bill of Rights, convinced that
it protects the sinners rather than the sinned-against. “Well, the Founding Fathers couldn ’t have foreseen gang wars,” goes
the
rationale. Or crack, or insider trading, or contraband automatic weapons, or drugs, or sexual abuse, or pornography, or serial
killers. To that, I would counter that neither could the Founders have envisioned the possibility that guilt or innocence
might rest on a small laboratory slide containing an even smaller amount of deoxyribonucleic acid—DNA. Reasonable doubt takes
on a new meaning in a case informed by science and determined by fallible human beings who interpret, manipulate, and define
this data.

It ’s convenient, when confronted with the virulence of modern crime, to forget history, both ancient and recent, which is
full of object lessons illustrating what happens when the rules that govern a people ’s conscience are, for whatever “expedient”
reason, set aside. As the country ’s perception of crime goes up—and its intellectual understanding of the justice system
correspondingly goes down—everybody decides that the solution to “the problem” is tougher sentencing, more jails, and bigger
prisons. The results of that decision are questionable. Nationally, one-third of male African American adults ages eighteen
to twenty-five are either in jail, on probation, or on parole. In California, the legitimate desire for safe streets has led
to the “three-strikes-and-you ’re-out” law. However, most prosecutors and many judges have begun to feel that the system has
been slowed down because of this law, as real menaces to society are put in a holding pattern awaiting trial while the court
wrestles with the problem of the man with two prior convictions who ’s arrested for stealing a slice of pizza and now faces
life imprisonment.

In the face of society ’s anger, it ’s almost inevitable that defense attorneys, rather than criminals, begin to carry the
onus of crime. No longer seen as protectors of anyone ’s rights, or of constitutional rights, lawyers are hired guns, paid
to “get the guy off,” and the public doesn ’t care for us very much. That is, until that moment in many people ’s lives when
they or someone near and dear to them is arrested for something as simple as
drunk driving or as complicated as insider trading. And then the first question asked is “Where are my rights?”

Until and unless that moment happens, crime isn ’t committed by “us”; therefore, those accused of crimes aren ’t “us,” and
“they” are not entitled to the same constitutional protections that “we” are entitled to. Or, as one defense attorney once
put it, “Everybody in town hates my guts—until two o ’clock in the morning, when their kid gets arrested.”

To be sure, defense attorneys have brought some of the criticism upon themselves, by their courtship of and relationship with
the press. There ’s a natural symbiosis between big trials and the media, with both caught up in the playing-field drama of
game plans, strategy, key players, winning and losing. The tremendous egos that motivate us to win in the courtroom are not
immune to the adulation that comes outside as attorneys spin their successes, in the process becoming everything from talk-show
staples to Sunday-morning-TV pundits. Little wonder that in this environment the “celebrity attorney” becomes a pop-culture
icon. It ’s one thing to garner respect, congratulations, and praise from one ’s peers and friends; it ’s another thing entirely
to glance up during a Lakers game and see one ’s face juxtaposed with Jack Nicholson ’s on the massive video screen in the
Great Western Forum.

The “Dream Team” glitz shouldn ’t blind society to the fact that defense attorneys, in addition to zealously representing
clients, also offer an ongoing and vital civics lesson in the rights of individuals. We cannot ignore the role of popular
culture in shaping—or misshaping—public perceptions and expectations. Cop shows, both fictional and nonfictional, routinely
portray illegal search and seizure, the physical abuse of suspects, and manipulation of evidence, all in the interests of
“getting the bad guy” by the end of the hour, minus, of course, the time expended for commercials. But trials, and the people
in them, are all too real. These days, anybody can accuse anybody of anything; indeed, in civil suits, anybody can
sue
for anything. What if a neighbor doesn ’t like you, or a business competitor wants
to weaken you, and so files a false report of wrongdoing? What if your ex-wife calls the IRS and tells them you ’re cheating
on your income taxes? Or your ex-husband calls the vice squad and tells them you ’re running a prostitution ring? Do you want
the police coming into your home or office, going through your records, going through your closets, without a warrant? What
happens if your spouse is killed and you have no immediate alibi? Suspicion always focuses on the surviving spouse, yet most
of us could never account for all of our minute-to-minute whereabouts on any given day or date, especially during the times
that we are alone. These days, an accusation is enough to destroy a life; an indictment and trial holds that life up to the
examination and judgment of a society. A defense attorney ’s job is to see to it that the man or woman who stands under that
scrutiny doesn ’t stand alone.

The terms “Dream Team” and “Trial of the Century” didn ’t come from me, and I was never comfortable with either of them. My
primary focus from the beginning of the Simpson case was to vigorously defend my client and to assemble a team of experts
to strengthen that defense. Within a day or two it was clear that this would become a highly visible case, although I couldn
’t know at that point the degree to which the public would continue to demand information and coverage. I believed that the
visibility would be good for two things: first, for lawyers (especially criminal lawyers, who have historically always been
demeaned) to demonstrate how professional they can be, so that the public would come to understand what the real role of a
criminal lawyer is; and second, to serve as some kind of positive symbol at a time when race relations were seriously frayed,
especially in my own city. We had been through the Rodney King and Reginald Denny trials, and the riots and the soul-weariness
that came with them. We had been through, in my lifetime, the promise of the civil rights movement, which now seems to have
come undone. Perhaps, I thought, my being a white Jewish lawyer defending a black man accused of killing two white people,
one of whom was Jewish, would strengthen
what had become weakened. Perhaps a vigorous defense team that included a respected African-American attorney, and an equally
vigorous prosecution team led by a Jewish woman and another black man, could somehow convey the message that the American
system of justice is ultimately more important than any racial or religious element within it. Unfortunately, I was wrong
on all counts. I was clearly, clearly wrong. Was I naive? Perhaps. But even now I would argue that optimism and idealism—which
keep me in this business—are difficult to sustain without sustaining some naivete as well.

I am not omniscient, and I have no better way of judging guilt or innocence than anyone else. However, I do know one thing
for certain: Legally, the result of the trial is correct. This was a solid case of reasonable doubt, and I knew that before
the trial itself ever began. Based on the evidence presented to this jury, “not guilty” was the only verdict that could have
been returned.

That doesn ’t mean a significant number of Americans aren ’t sitting out there this minute thinking, “O.J. probably did it.”
But under our system, “probably did it” is not sufficient to convict someone. You cannot ask the question on one side of the
coin—How does the defense attorney sleep, knowing that sometimes the guilty go free?—without confronting the question on the
flip side: How could any of us sleep if innocent people were put away? Or executed?

I take pride in what I do. I am a professional, I have a constitutionally mandated job, and I work hard at it. Therefore,
I ’m able to function as a lawyer and survive as a human being. And so I sleep very well.

Chapter One

O
n Monday, Jun. 13, I was heading back to my Century City office after spending the morning in the Los Angeles Municipal Court.
Two different clients, two different preliminary hearings. One was a minor theft case, and I had filed a motion for continuance
so we could get additional discovery. The second was more complicated: a white-collar case where a client had allegedly taken
money for discounted airline tickets. Just as I pulled into the building ’s parking garage, the car phone rang. It was Dale
Gribow, an old friend and Loyola Law School classmate.

“Bob, have you heard the news about O.J. Simpson?” he asked.

“No,” I answered, mildly curious. “What about him?” Although we weren ’t close friends, O.J. and I knew each other in passing,
and with many mutual friends in Los Angeles, we had often run into each other over the years at various charity events and
parties, including one Fourth of July party at his house in Laguna with my wife, Linell, and my two sons, Brent and Grant.

“It ’s incredible,” Dale said. “Nicole ’s been murdered, and O.J. ’s been taken down to the Parker Center by the police for
questioning.”

“I can ’t believe it!” I said. “Dale, what else do you know about this?”

He didn ’t have many details; the news reports were still pretty sketchy. All he knew so far was that there had been a stabbing,
there was supposedly a second victim, although he didn ’t know who it was, and Simpson had reportedly made some kind of statement
to the police.

“Actually, one of the reasons I called was to see if you were representing him,” Dale said.

This wasn ’t an out-of-the-blue question: Dale knew I had represented many high-profile clients in the past, and there had
been some athletes and celebrities on that list. Not this time.

“No,” I said. “This is the first I ’ve heard about this. And nobody ’s contacted me.”

For the rest of the afternoon, local TV anchors repeated the same information I ’d heard from Dale. Howard Weitzman, a Los
Angeles attorney, had reportedly been retained by Simpson. Weitzman, an excellent lawyer and a friend of mine, had represented
John DeLorean in the famous narcotics case where DeLorean was accused of offering to sell large amounts of cocaine to federal
agents, a charge that he was subsequently acquitted of, and Weitzman was currently representing pop singer Michael Jackson.
As the news reports accelerated throughout the day and mild gossip and speculation began to buzz throughout the office, all
I could think of was that someone I knew had been murdered just ten minutes away from where I was sitting. In fact, I could
look out my office window and see Brentwood in the distance.

BOOK: The Search for Justice
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