Without a Doubt (30 page)

Some celebrity questions suggested themselves.

“Have you ever asked a celebrity for an autograph?”

“Have you ever written to a celebrity?”

Certain questions taken together provided internal checks. If, for instance, a juror wrote that he watched news on three channels daily, and yet insisted that he had no knowledge of the Simpson case, we’d have some reason to believe that he was being less than truthful.

I have to say that in this instance Lance Ito really came through for us. He gave us almost every question we asked for. Of course, he gave the defense almost everything
they
asked for, as well. The result was a document at least an inch thick. It was the longest questionnaire that either Bill or I had ever seen. Seventy-five pages each! I heard that when prospective jurors first saw it, they groaned. And I thought,
What are you complaining about? You’re not gonna have to go through each and every one of these suckers comma by frigging comma
.

One afternoon during the last week in September, a law clerk wheeled a steel cart into my office and unloaded four cardboard boxes of completed questionnaires. Three hundred of them. Bill and I just looked at each other. It was a look that said,
The journey of a thousand miles begins with the first step
. He took half. I took half. Then we burrowed into our respective offices and started to work.

The job wasn’t as simple as reading through the questionnaire once and jotting down notes. I had to flag key responses and then summarize them on a separate ten-page form that Bill and I had devised for the purpose. We’d also come up with a system for grading each juror on a scale of 1 to 5, 5 being the best. It was incredibly clumsy, but we had no precedent for a job this large.

I lost track of the time. When I finally put my pen down and looked up, it was dark outside.
My God
, I thought. I’d started at three o’clock in the afternoon and it was already past seven. And I’d only gotten through three of these monsters!

I walked down the empty halls to Bill’s office. To tell you the truth, I liked this place a whole lot better when it was deserted. The feeling of being alone in the office gave me a sense of freedom that I found invigorating and at the same time peaceful. But right now I was feeling low and needed bucking up.

Bill’s door was open. I could see him hunched over his desk, poring over a document tidily flagged with Post-its.

“How many have you gotten through?” I asked him dourly.

“Only two. I can’t believe it.”

“We’ve gotta find a better system,” I told him.

We heard a rustle in the hall, and just then Jonathan Fairtlough stuck his head in the door. Jonathan, a freckled young Irishman with an unruly shock of brown hair, had been one of our first picks for the team. He was full of energy, optimism, and expansive ideas for graphic presentations. Jonathan was also an electronics genius, whom we called in whenever the computers or even the copiers went on the blink. He never seemed to get tired. At least not at that point.

“Hey, boss,” he said. It was directed at both of us. “Anything I can do for you?”

“As a matter of fact,” I told him, “we’re trying to come up with a way to streamline the summaries. Any ideas?”

Jonathan thought for a moment.

“Why don’t you just dictate the important stuff into a minicassette? Then get the secretaries to type them up for you.”

Bill and I looked at each other. Out of the mouths of babes!

After that, we picked up our speed a couple of knots, but we still remained in danger of drowning beneath swells of detail. We needed some way to make the task more concrete, more visual. I recalled a system I’d had picked up from another D.A. named Pat Dixon. He’d tried a lot of long-cause cases, and he’d devised a system for jury selection. Before voir dire, he would make up a pack of yellow cardboard cards, about three inches by three, one for each juror in the pool. He’d jot down pertinent information about each one on the front. Then he’d deal the cards. Twelve of them arranged in two rows of six, a simulated jury box. This helped him to visualize what those twelve people, each with his own history and set of prejudices, might look sitting next to the others. He’d take one candidate—maybe a crotchety contrarian—and try to figure out the rating each side would give him. Then he’d try to figure out which side was likely to get him struck for cause and which would have to use a peremptory challenge. The contrarian would stay, or he’d go. Pat would do this until he had combined the cards in all their plausible permutations. Whenever I went past his office, I’d see him sitting, staring hour after hour at the cards before him, playing this game of lawyer’s solitaire.

So I made up a pack for Bill and me. Three hundred yellow cardboard cards. In the late afternoon, or whenever we had a few moments, Bill and I would meet in one of our offices and pull out the pack and start dealing. We’d add a juror to the rotation to see how he or she fit into the mix. We’d rotate the least desirable candidate out. We kept looking for the perfect ensemble. Or at least an acceptable one.

It was dismal going. Any way you shuffled the deck, this was far and away the worst pool of jurors either of us had ever seen. Few of these people had ever taken college courses, let alone gotten a degree. Many were out of work. No one had anything good to say about the LAPD. An uncomfortably large percentage of them either knew someone who had been arrested or had been arrested themselves. The Bronco chase seemed to arouse in them nothing but regret for the sufferings of the defendant. “Poor guy, gone to visit his wife’s grave and all he gets is grief from the law.” At the very worst, Simpson’s actions were seen as “bizarre.” Almost no one believed that he had been trying to escape.

Before the questionnaires came in, Bill and I had been going back and forth on whether we should introduce the Bronco chase as evidence. Do we offer up the eight thousand bucks, the passport, the fake mustache and beard? To us, of course, these items seemed very incriminating. But in light of the responses we were getting on the questionnaire, introducing them carried substantial risks. First of all, the money had been found on Cowlings, not Simpson. The goatee, mustache, and passport were found in Cowlings’s Bronco. Proving that Simpson even knew about these items would be difficult. I was convinced he did, but demonstrating it was another matter.

Worse, if we introduced the Bronco evidence, it would give the defense an opening to slip in the records of the calls Simpson had made from his cell phone while motoring up the 405. We’d get the tape of Tom Lange talking him in off the freeway, telling him what a wonderful guy he was, how his children needed him; in the background, we’d hear Simpson’s groans of anguish. We’d get a parade of witnesses who would recall the tearful protestations of innocence and grief. All the defendant’s denials would come in through the back door of these phone-call witnesses. O. J. Simpson would be allowed, in effect, to offer emotional testimony on his own behalf without ever having to take the witness stand. (In a criminal trial, only the defense can call the defendant to the stand.) Whatever hope we had of getting to cross-examine Simpson would wash right out the courtroom door in a river of crocodile tears.

To make the risk worthwhile, we’d needed to offer proof of flight so unequivocal that it would expose the phone calls to family and friends as the shams they were. Now,
I
might hear one of these tapes and think,
You sniveling bastard; what about the pair you murdered?
But to our prospective jurors—at least the ones who revealed themselves in these questionnaires as an unchartered chapter of the Juice Fan Club—he would appear nothing but sympathetic.

During the months since the verdict, I’ve gotten hammered repeatedly for “failing” to introduce evidence from that chase. Certain old armchair warriors have gone so far as to call it a breach of prosecutorial responsibility. Let me set the record straight. No prosecutor is compelled to produce evidence that he feels might work to his detriment. There is no right or wrong in this matter. It’s a judgment call. I decided to keep it out; another prosecutor might have decided differently. But once he’d made that call, he’d better have been prepared to take the consequences should the thing jump back and bite him in the ass.

If I had it to do again, with the jury God saw fit to grant us, I’d make exactly the same call.

CAR TAPE.
October 2, 1994… Constant anxiety
. . .
I feel like I can’t breathe thinking about all the work I have to do, and I don’t have the time for it. I’m so tired. Tired of seeing my face in the magazines and
. . .
tired of everything. Just plain tired
.

By the time I’d read through eighty of the questionnaires, I was so depressed I could hardly speak. On our scale of 1 to 5, only ten ranked as high as a 4. The rest of the pool was grouped down around 2 or 1½.

But the worst of it was the lying.

An anthropologist reading through these questionnaires would probably conclude that he’d stumbled upon the remnants of some lost civilization. In the midst of the most media-saturated city in the world, we’d somehow managed to find three hundred human beings who claimed never to watch television, listen to the radio, or read newspapers. These pristine souls insisted that they didn’t know anything about a case that permeated every streetcorner conversation between East L.A. and Santa Monica. Under questioning, however, this astounding phenomenon would prove illusory. When we pressed the jurors for specifics about the Bronco chase, it would come out that they’d read and seen a great deal. But on the questionnaires, they told us anything they thought we wanted to hear, just to get on the jury.

My head ached. My eyes were burning. Why, on this of all cases, did we wind up with the fucking jury pool from hell?

For the three weeks it took to collate those questionnaires, I dragged myself home each night in a stupor of fatigue, bowed under the weight of the knowledge that I’d have to go in there and fight every day in a battle that might already be lost.

There seemed to be no safe corner. During my waking hours the phone was constantly ringing, or my beeper was going off. Every ten seconds someone was knocking on the door of my office saying, “Got a minute? Got a minute?” Patti Jo Fairbanks, our senior legal assistant, did her best to run interference for me. She screened my phone messages, handing over only the ones with top priority. She posted signs on my door that read, “Don’t Knock. Keep Out!”

At the end of three mind-numbing weeks, I completed my summaries of all three hundred questionnaires. I picked up Bill’s to compare our observations—and was stunned. Bill had uniformly rated all the jurors much higher than I had. In one instance he had given a 5 to a juror I’d rated a 0! Was I losing my mind?

That night I went down to his office. “Bill,” I asked, “have you noticed a discrepancy in our grading?”

“Yeah.” He looked glum. “Let’s talk.”

I pulled the problem juror—his 5, my 0.

“What about this one?”

He glanced over the summary. His face fell even further. “I don’t know what I was thinking,” he said. “Maybe I’m just trying to convince myself that we’ve got a chance.”

I knew exactly what Bill was feeling. He was in denial. I think we both were. The prospect of a bitterly fought trial we knew we could never win was just too much to bear.

You can’t acknowledge that a situation is hopeless. It destroys your will to fight. And so Bill and I reached a tacit arrangement in which we ended up supporting each other’s delusions about the candidates filling out those questionnaires.

Yeah, maybe this one isn’t so bad. Maybe we can get her to listen, even though she considers the defendant a “hunk” and named her firstborn Orenthal. Yeah, yeah. It might happen
.

Something might happen. There might be a miracle.

Meanwhile, Bill and I racked our brains trying to come up with ways to keep the jury pool from being contaminated by the avalanche of misinformation issuing from the press daily. Normally, it’s the judge’s job to protect the jury pool from such pollution, but Lance didn’t seem to have a clue. We begged Ito to put off jury selection until after we finished arguments on admissibility of DNA, something that stood to be a long and complicated public brawl. Why pick a jury and then send them home, where they could listen to the defense belittle the science of DNA testing? But Lance didn’t see the problem.

Ito set voir dire for October 12. At the very least, we pleaded with him, bring the jurors into the courtroom one at a time. If you don’t, we told him, you’re going to have jurors discussing gossip and half-truths right in front of the whole pool. Once again, motion denied. It would be a cattle call, everyone sitting together, every juror questioned right out there in the open.

On the Wednesday morning we were to start voir dire I had arrived early and shut myself in my office to practice my questions. When finally I looked at my watch, it was half an hour to show time.
Odd
, I thought,
I haven’t heard from Bill.
Patti Jo knocked on my door. She looked worried.

“Bill’s sick,” she told me. “He can’t make it in today.”

“You’re kidding, right? Tell me it’s a joke. We’re supposed to start voir dire in about twenty-seven minutes!”

It was no joke. Bill had been looking haggard and drawn lately. I knew he hadn’t been sleeping well. The stress was taking its toll on him. Come to think of it, it had kept him home on the first day of hardship questioning, too. Now this! If Ito didn’t grant me a continuance, I was screwed.

When I got to court, with my heart in my throat, I asked to postpone the proceedings. Shapiro objected but, to my utter amazement, Lance backed me up. He pointed out to Shapiro that if “Mr. Cochran [were] similarly afflicted… I would exercise the same discretion and allow you to trail it a day.”

Lance caught me totally off guard.

I was so grateful and relieved that I couldn’t even manage a gracious reply. Maybe Ito wasn’t such a bad guy. Just in a little over his head.

Bill returned the following morning. Nothing to get alarmed about, he told us. Just a touch of the flu. He looked pale, but reasonably fit. Ready to kick ass.