Without a Doubt (13 page)

Zlomsowitch said he understood.

So I wound up listening with innocent fascination—along with everyone else in the courtroom—as Keith told how he had met Nicole in Aspen about two years before her death. At that time, he was director of operations for the Mezzaluna restaurants’ Colorado and California operations. Nicole was legally separated from Simpson then and living at Gretna Green. In the spring of ‘92 he and Nicole became lovers, but only for about a month. During that time, Zlomsowitch said, O. J. Simpson would follow Nicole when she went out in the evening. Once Nicole and a party of friends showed up at the Mezzaluna in Beverly Hills, where Ziomsowitch was on duty. As he was sitting with her at her table, he noticed O. J. Simpson pull his car up to the parking attendant. Simpson came in and went directly to Nicole’s table. He leaned over, stared at Ziomsowitch, and said, “I’m O. J. Simpson and she’s still my wife.”

“How would you describe his tone of voice?” I asked.

“Serious, if not scary,” he said. “Just deep, threatening to the point of—yes, we were very intimidated.”

Ziomsowitch told of another incident, in April 1992, which occurred at a restaurant called Tryst. After waiting for a table, Keith, Nicole, and a few of Nicole’s friends had just sat down when Simpson appeared. This time, he walked past them and took a table about ten feet away. He pulled the chair around to face them and just stared. And stared. That freaked Ziomsowitch out.

Not long afterward, Keith went on another date with Nicole, this time to a comedy club where a friend of hers was performing. From there, they went dancing at a Hollywood club called Roxbury. They had been there less than an hour when Nicole said, “O.J. is here.”

I had to tell the jury to disregard the statement attributed to Nicole. At that point, though, they seemed to be hanging on Zlomsowitch’s every word, breathless to hear what happened next.

“We went back to Nicole’s house,” he continued. “We lit a few candles, put on a little music, poured a glass of wine, and we… began to become intimate.” After they’d had sex, Nicole told him she thought it best if he went home and she went to bed.

The following day, Ziomsowitch came back to the house and sat with Nicole by the pool as her children swam. She complained of a stiff neck; they went into a bedroom off the swimming pool where he began to give her a neck message. After about five minutes, Zlomsowitch recalled, O. J. Simpson appeared two feet in front of them and said, “I can’t believe it… . Look what you are doing. The kids are right out here by the pool.”

According to Zlomsowitch, Simpson went on to say, “I watched you last night. I can’t believe you would do that in the house. I watched you… . I saw everything you did.”

Then he demanded to speak with Nicole alone. Zlomsowitch, who was still sitting on Nicole’s back at that point, eased off slowly. He told us that he didn’t want to make any sudden moves that might incite Simpson to anger.

At Nicole’s urging, Keith left her alone to talk to her estranged husband. Several minutes later, O. J. Simpson emerged from the bedroom. Keith said he was frightened, but then, to his surprise, Simpson stuck out his hand. “No hard feelings, right?” he said, shaking Zlomsowitch’s hand. “I’m a very proud man.”

As Zlomsowitch spoke, I stood there with my mouth open in amazement. O. J. Simpson was spying on his wife in the bushes while she was having sex, then, the next day, shakes the hand of her lover? That was the weirdest thing I’d ever heard. (Since then, I’ve had a chance to learn a lot more about the nature of domestic violence. Batterers only rarely blame other men. It’s usually the wife or girlfriend, “the bitch,” who takes the heat. But at the time I first heard this story, Simpson’s behavior struck me as utterly incomprehensible.)

All in all, Zlomsowitch seemed an honorable guy. He’d been a pallbearer at Nicole’s funeral, and all he seemed to want out of this was to see justice done. The fact that he had been willing to recount events favorable to Simpson, like the handshake and apology, was reassuring proof of his honesty. And he had given us valuable new evidence—including the information about the stalking episodes—of Simpson’s behavior as a jealous husband.

David was as relieved as I was that Zlomsowitch had panned out. You take a risk putting
any
witness on blind, and here we were throwing one after another on the stand without a vetting.

“I can’t believe it,” David groused to me as we ate lunch on the afternoon break. “We have five minutes to put this case together for the grand jury, and law professors across the country are going to take months dissecting and critiquing every word.”

Man, if he only
knew
how true that would be.

Actually the grand jury was going pretty well. The only real screwup was Shively. I told myself we’d been lucky to find
any
witnesses whose testimony had not been tainted by pretrial publicity. The important thing was to proceed step by step and not be distracted by the babble of media around us. The grand jurors had been admonished to do the same thing. “Turn off your radio, don’t turn on your TV, don’t pick up a newspaper, don’t scan headlines at a newsstand.”

Grand jurors usually take their charge very seriously, but they are also human and as curious as anyone else. On Thursday, June 23, we were wrapping up the testimony and I had already started drafting my closing statement. I’d give it on Friday, and we’d be done. I think the jurors would have had more than enough evidence to give us the indictment. Then this hysterical pace would subside, at least until the trial started, which would be months from now. Maybe I could even go back to eating dinner at home again.

These were my thoughts as I walked down the hallway toward Suzanne’s office. I checked in with her at least once a day, usually around six o’clock. We’d kick back and shoot the breeze, or in more hectic times, like these, she’d fill me in on any brushfires that needed extinguishing. That night, I could smell smoke even before I reached her door. Suzanne and a visitor, a local television reporter, were sitting in front of the TV, riveted to the screen. There wasn’t much to see, as I recall. Just the staccato sound of a tape being played. The voice of an anguished young woman filled the room.

“He broke my door. He broke the whole back door in… .”

A second voice, apparently that of a 911 operator, interrupted her: “And then he left and he came back?”

“Then he came and he practically knocked my upstairs door down, but he pounded it and then he screamed and hollered and I tried to get him out of the bedroom ‘cause the kids were sleeping there… .”

“What the hell is this?” I asked Suzanne.

“Nicole,” she replied without taking her eyes from the screen. “A 911 tape.”

“
What 911 tape?
”

I knew that there had been police reports on the New Year’s Eve of 1989 and the door-kicking incident of 1993. Both had been triggered by Nicole’s calls to 911. But I was under the impression that the audiotapes of those calls had been destroyed in a routine recycling procedure.

My impression was wrong. It turns out that the city attorney’s office, which prosecuted that ‘93 case, had kept its own copies of the tapes. The press had tracked them down and petitioned under the state Public Records Act to get them. And somehow, they had gotten those tapes released—before I had even heard that they existed.

Suzanne’s reporter buddy handed me copies of the police reports on the tapes. I hadn’t seen these, either.

“Oh, great,” I fumed. “Now I’m getting discovery from the press!”

Within the space of an hour it seemed that tape was everywhere. You couldn’t step within earshot of a radio without hearing Nicole’s pitiful, quavering pleas for help. It was on all the television news shows, and they didn’t play it just once, but kept repeating it, in a sick parody of MTV’s heavy rotation.

“My ex-husband or my husband just broke into my house and he’s ranting and raving… . He’s O. J. Simpson, I think you know his record… . He’s fucking going nuts… . He’s screaming at my roommate about me… about some guy I know and hookers… And it’s all my fault, and now what am I going to do…? I just don’t want my kids exposed to this… .” When Nicole begged Simpson to calm down, for the sake of the children, his anger only increased. “I don’t give a shit anymore! Motherfucker! I’m not leaving!”

The backlash was immediate. Our lines were flooded by outraged callers. And most of them took the side
not
of the panicked 119-pound woman, but of the out-of-control former football player who was terrorizing her. They said, “How can you do this to that poor man?” Everyone assumed that the release of the 911 tape was part of a cynical scheme hatched by the D.A.‘s office, the LAPD, and the City Attorney’s office to spin public opinion against Simpson.

What a joke. Believe me, there wasn’t enough solidarity among these camps to coordinate a beer run, let alone an offensive like that. For days afterward, we would all point fingers at one another, Gil lit into the city attorney, James Hahn, for releasing the tape. Hahn insisted that he had acted in the belief that the LAPD had gotten approval from the D.A.‘s office for his office to release the tape. The LAPD would say it was against releasing the tape, but felt it hadn’t gotten support for that position from the D.A. In our office, it was David who took the fall. The cops had called, asking him if they should authorize release of the tape under the Public Records Act. And he had told them, “Do what you normally do.” It was the right instruction—but the result was disastrous.

The worst part of it was watching Shapiro exploit this screwup. He filed a motion to halt the grand jury hearing on grounds of excessive publicity. At a hearing hastily convened on Friday in the courtroom of a former prosecutor named Lance Ito, Shapiro was preening like a peacock in full plumage. He accused the D.A.‘s office of misconduct in making “improper expressions of personal opinion.” He cited my “sole murderer” slip as well as Gil’s speculation that Simpson might cop an insanity plea.

I couldn’t let this pass.

“Robert Shapiro has lost no opportunity to exploit coverage in this case to get sympathy for his client,” I told the court. “He has been no stranger to the spotlight.”

But the barbs exchanged by Shapiro and me were at that very moment being rendered irrelevant. That morning, our grand jury adviser, Terry White, had come back to Gil with reports that a couple of jurors were discussing the 911 tape. That cinched it. If we did get an indictment, it could be thrown out on the strength of this revelation alone. Gil himself had no choice but to file a motion to dismiss the grand jury. Superior Court Judge Cecil Mills heard the motion and began interviewing the jurors to see if they had read or heard anything that might affect their judgment. He concluded that they had, and granted Gil’s request to recuse the jury.

It was over.

In some ways I was not unhappy to see this grand jury go bust. The case had drawn such intense public interest that I was uncomfortable seeking an indictment in a closed proceeding. I felt we’d always be susceptible to the charge that funny things were happening behind locked doors. Better to bail out early and try for a better result at a preliminary hearing in open court. Besides, the grand jury had been a useful dress rehearsal for what was to come—sort of an overture to the opera. By totally immersing us in the case, it sharpened our perceptions of its weaknesses and strengths. I’d even prepared a grand jury summation that was a very early first draft for a closing statement.

Still, the suddenness with which the grand jury was disbanded came as a shock. None of us could remember such a thing ever happening before. It also put us in a very tough spot logistically. Normally, we have weeks, or even months, to pull these things together. But the deadline mandated by law was upon us. We had less than a week to prepare for a preliminary hearing.

A prelim is like a little trial where the witnesses you put up can be cross-examined by the defense. This means you have to go back, reinterview each one of them—after comparing their statements to the grand jury to those made to police. We couldn’t afford any unpleasant surprises. No more Jill Shivelys. It would mean sorting through the complex physical evidence and figuring out a comprehensible way to present it. We’d be clocking fifteen-hour days, at least.

This was a really low moment. The only way I could keep my spirits up was to hold on to my fantasy that Gil would relent and let me keep David on the team. That night, Gil called us both into his office. He looked straight at me, and something in that look told me it was hopeless.

“Marcia,” he began firmly, “you’re going to have to pick a partner. I’ll try and accommodate any reasonable request, but I want you to find someone who’s as strong as you.”

What he meant was I couldn’t bring on some baby D.A. who would just carry my books. Even though I knew what the answer would be, I turned toward David and inclined my head in his direction.

“No,” Gil said flatly. “I need David on Menendez.”

I could feel hairline cracks fanning out in crazy patterns all through my confidence. With David by my side I felt strong and sure. Having him to strategize with would be a dream come true. But there was no appealing Gil’s decision. I’d have to find another partner. Someone who had real strength. Someone who could brace me against the coming storm.

Although I admitted this to no one, I was scared to death.

W
ar Games

He has to say yes
—
there’s no one else
.

That was my mantra as I walked down the hall from my office to the corner office occupied by Bill Hodgman. I was about to change his life. Right now he was in a relatively low-stress post as the director of Central Operations; if he accepted my offer, and Gil approved, he’d be subject to unprecedented heat. I think he knew I was coming. I almost expected to find a sign on his door that said “Leave me alone.” I wouldn’t have blamed him. But I also wouldn’t have known where to go next.

There were only seven deputies besides me in the Special Trials Unit, and all of them were either already trying a case or about to start one. I’d thought a bit about Brian Kelberg, a thin, intense man with a goatee and dark glasses. Brian was almost pure intellect. He had spent a little time in medical school before switching to law. It would be terrific, I thought, to have him as a sounding board for the complex evidentiary issues of the Simpson case. But I knew having him as co-counsel wouldn’t work. Though Brian was brilliant, he was a loner. He’d always felt that the team approach to prosecution wasn’t an effective way to try a case.