As the evidence piled up, so did O. J. Simpson’s incentive to flee.
“What if Simpson pulls a Polanski?” I asked Gil.
Film director Roman Polanski—allowed to remain at large while under investigation on charges of statutory rape—had fled to France. Why couldn’t it happen here? The clock was ticking, and we didn’t want to be the saps who failed to move because the cops didn’t give us permission.
There were other concerns as well.
“I’m worried about losing that guy Kaelin,” I told the others. “He’s very shaky. We need his testimony—now.”
“David,” Gil said at last, “tell Terry White [our office’s grand jury adviser] to arrange to convene the jurors for Friday afternoon. We’ll hear Kaelin’s testimony.”
Finally, we were moving. It wasn’t until everyone stood up and began to leave the conference room that Frank Sundstedt finally asked the question that was uppermost in my mind.
“So, does Marcia have the case?”
I held my breath. Suddenly it felt very important to me. While part of me—probably the rational part—recognized that this would not be a smooth prosecution, I wanted to hear that Gil had the confidence to let me handle a big one.
“Marcia has the case,” he said finally, catching my eye. “But not alone. She’s going to do it with someone else.”
There was a nervous shuffling in the room. Someone cleared his throat. Truth is, if you really trust a prosecutor, you make her the lead chair. No doubt what he intended was to pair me with another strong personality who would keep me in check. My pride wouldn’t let me show my disappointment.
But as David walked me back to my office, I fumed sotto voce.
“Why does he think I need someone else?”
David urged me to calm down. Think of it from Gil’s point of view, he said. The guy’s under a lot of pressure and he’s probably just hedging his bets. Your feelings are the least of his problems right now.
He was right, of course. For Gil, this wasn’t personal. If I had to pair up with someone, maybe Gil would let me have David?
“How about you?” I asked him. He shot back a look as if to say, “In your dreams, babe.” David was up to his ears in Menendez. He had all the alligators he could handle in that swamp.
Even before I left the office that night, I was hearing rumors that the LAPD brass were in negotiations with Robert Shapiro to allow O. J. Simpson to surrender voluntarily. Our threat to go grand jury must have lit a fire under them. But the news was a mixed bag. On one hand, the idea of a negotiated arrest made me nuts. Once again, O. J. Simpson’s celebrity status had gained him a legal advantage. A negotiated voluntary surrender signals to the public and potential jury pool that the suspect is someone who deserves special privileges. I’d much rather see a righteously arrested suspect step out of a squad car in handcuffs. Still, my annoyance was all relative. Compared to the act of cutting him loose in the first place, a negotiated surrender was a minor outrage. If it worked, we’d all be happy. But what if the negotiations failed? Would the police back down and delay the arrest again? Would they give Simpson a deadline? We wanted to keep our options open—and that meant proceeding full speed ahead with the grand jury.
First order of business: reel in Kato Kaelin. O. J. Simpson was clearly Kato’s benefactor. I could just about bet that had Kato known Simpson was a suspect, he would not have spoken so freely about the thump, for instance, and risk dumping his meal ticket. On the other hand, however, I’d had a chance to study his witness statement pretty thoroughly by now. I felt he had to know a lot more about the Simpsons’ private lives than he’d told the cops.
Early Friday morning I dispatched a couple of detectives to West L.A. to serve Kato with a subpoena. David and I were in conference with Gil when I got a call from one of the cops on the detail.
“Kaelin’s here with us,” he said. “But he says he won’t talk unless his lawyer’s with him.”
“Bring him in anyway,” I told him.
This was extremely unusual. Witnesses don’t arrive in the company of lawyers unless they’re worried about being charged with a crime. From what I could see, Brian Kaelin had no criminal liability. The events he’d witnessed on the night of June 12 had clearly occurred after the murders. I was afraid that his request for an attorney meant that Simpson had gotten to him.
The cops brought Kato into my office at a little past nine. I looked up from my paperwork and saw for the first time that wild mane of dirty-blond hair, casual hip clothes, goofy surfer-boy slouch. My first thought:
Zone-out case
.
“Hey, guy,” I greeted him. Casual seemed the way to go.
He shook my hand and fidgeted like a puppy.
“Have a seat while I call my boss.”
“Hi, sure, no problem.”
He plopped down in one of the chairs across the desk from me. David said he’d be delayed a few minutes, to start without him.
I began by asking Kato how much sleep he’d gotten that night. Did he feel prepared to go before a grand jury? He answered in half sentences, nodding a lot, managing to say very little.
Great
, I thought,
this guy can barely handle small talk
—
what’s going to happen when we put him on the stand?
I cut to the chase: “Do you remember what you were doing when you heard the thump on your wall?”
“I think I was talking to my friend Rachel. Yeah, I was talking to Rachel.”
Okay; that was what he had told the cops.
“Did you tell her about what you’d heard?”
“I really don’t… um… you know… want to say anything until my attorney gets here. I mean, you seem real nice and all, and… um… I really want to help you out. But… um… I really can’t talk about the case without him. I’m real sorry, really, Marcia. I am.”
His words tumbled over each other as he squirmed in his seat and cast me a beseeching look.
I wasn’t buying this act. Kato wasn’t as dumb as he appeared. He’d cut off the questioning expertly.
“Kato, I don’t get it,” I told him. “Why do you think you need a lawyer? As far as I can tell, you have no liability whatsoever. If there’s more to it, please say so now and I won’t say another word until your lawyer arrives.”
“No, no. It’s not that. It’s just that my lawyer told me I shouldn’t say anything unless he’s here.”
When David finally showed up, he, too, lobbed Kato a few low and slow ones. No dice. Then, Kato’s lawyer, a young guy named William Genego, finally arrived and demanded that we stop talking to his client until he could read the witness report. David offered them his office as a conference room. It was only about 9:30; Kato didn’t need to get on the witness stand until early afternoon. But Genego said that wasn’t good enough. He’d need the whole
weekend
to go over the statement.
That was ridiculous. The statement was only two pages long. David laid it on the line.
“Your client was subpoenaed to appear before the grand jury at one-thirty this afternoon. Make sure he’s there.”
The tussle with Kato was small-time compared to the trouble brewing beyond the walls of the Criminal Courts Building. I was oblivious to the rumblings until about noon, when I was paged by the office’s indomitable senior legal assistant, Patti Jo Fairbanks. Patti Jo had the authoritative air of a four-star general and the voice of a drill sergeant.
“Marcia!” she bellowed. “I need to see you in my office, right now!”
Sounded serious. I walked the few short steps between her office and mine, poked my head in, and asked, “What’s the deal?”
“Come in and close the door.”
Good news never comes when they tell you to close the door.
“It’s Simpson,” she said. “He was supposed to turn himself in at Parker Center this morning and he didn’t show.”
What?
Shapiro, Patti Jo told me, was to have brought Simpson in to Parker Center by eleven o’clock. An hour later, still no sign of him.
“The cops are plenty pissed,” she told me. “They’re going to send a unit out there to get him.”
“I thought they didn’t know where he was.”
“He’s staying over at Kardashian’s place in the Valley,” Patti Jo replied. She was referring to Robert Kardashian. Up till then, I’d never heard of the guy, but he was apparently a longtime buddy of O. J. Simpson.
Curiouser and curioser. How did so much manage to happen without our knowledge? I’d never seen this before—and it was certainly a bad sign.
The phone rang. Robert Shapiro.
“Let me talk to him,” I mouthed to Patti Jo.
“Just a minute,” she told him. “Marcia’s sitting right here.”
She handed me the phone.
I dispensed with pleasantries.
“What’s going on, Bob?” I said. “This is no time to screw around.”
“Marcia, I promise you. He’s coming in. We just need to do a few things,” said Shapiro.
“What do you mean?” I shot back. “He’s had all week to get his things together. What are you guys doing?”
“He’s being checked out by some doctors,” said Shapiro. His speech was infuriatingly slow, his tone condescending. “I’m sure you’ve heard that he’s very depressed. We Just need to be sure that he doesn’t go into custody in a suicidal frame of mind.”
“Oh, I’m sure he’s depressed.” I snorted. “He’s got very good reason to be depressed. I just want to hear back from you in half an hour telling me he’s left.”
Over the next few minutes, there was a flurry of calls between us. Shapiro kept insisting that “It’s going to be a little longer than we thought.” Simpson would need another hour, he insisted. Then, inexplicably, he passed the receiver to someone else.
“Who’s
this?
” I asked the stranger.
“Saul Faerstein.”
I knew that name. Faerstein was a forensic psychiatrist who testified in criminal courts around L.A. County. The line on him was good. What the hell was he doing at Kardashian’s? Were they laying the groundwork for some kind of diminished-capacity defense? I asked Faerstein for directions to the house and he gave me some convoluted reply. When I tried to clarify them, he became even more evasive. Finally, I lost my patience.
“Doctor, you’d better stop playing games here,” I said. “Do you understand that you’re obstructing justice? That’s a criminal charge, and I don’t think you need a record like that, do you?”
He must have tossed the phone like a hot potato; in an instant Shapiro was back on the line. I was in the process of extracting directions from him when Patti Jo signaled me to break away. She had the LAPD’s Valley Division chief on the line. They’d finally gotten their own fix on the safe house and were on their way.
Show time. I took a deep breath and pushed through the doors to the grand jury room. I flashed my best warm-up smile to the jurors seated in the little three-tiered amphitheater. I tried not to betray my anxiety as I first welcomed them and then had to explain our departure from ordinary procedure. I would be deferring my opening statement until Monday.
“For today,” I said, “we are convened for the testimony of only one witness.” And I called Brian Kaelin to the stand.
“Mr. Kaelin,” said the foreperson when Kaelin stumbled to the witness chair, “please state and spell your full name, speaking directly into the microphone.”
He looked a bit dazed. “B-R-I-A-N G-E-R-A-R-D K-A-E-L-I-N.” Well, at least he could spell his name.
I turned to him. “Mr. Kaelin, were you acquainted with a woman by the name of Nicole Simpson?”
He fidgeted a bit, and then looked down at a piece of legal paper. Finally he spoke, in the tremulous tones of a child reciting a poem he doesn’t quite understand. “On the advice of my attorney,” he said, “I must respectfully decline to answer and assert my constitutional right to remain silent.”
God
damn
.
“You seem to be reading from a piece of yellow paper,” I said. “Did your attorney write that out for you this morning?”
“On the advice of my attorney, I must respectfully decline to answer and assert my constitutional right to remain silent.”
I couldn’t believe that this twerp was taking the Fifth! He read from that paper three more times before the foreperson warned him that his refusal to answer questions was “without legal cause” and that if he persisted in his refusal, he would be held in contempt. Now we had to find a judge to do just that, pronto. When Kato stepped down, David and I went down to the court of Judge Stephen Czuleger, a former federal prosecutor who was the designated hitter for issues that arose before the grand jury, to ask him for a ruling on the plea. I’d always pegged Czuleger as smart and forceful and I hoped he’d put an end to this nonsense.
He didn’t. At least not 100 percent. While agreeing that Kato’s situation did not seem to warrant his invoking the Fifth Amendment, the judge didn’t find it unreasonable to allow him and his attorney the weekend to confer.
I humbled myself before the grand jury, apologizing as handsomely as I could for having dragged them in for nothing. I silently prayed they wouldn’t hold it against me. Even worse, would they reject any of Kato’s future testimony because he had taken the Fifth?
Great. What a way to start.
Shortly after I got back to my office, Phil called. I could tell from the agitation in his voice that something awful had happened.
“Simpson’s escaped,” he said.
Dear God
, I thought,
do we ever look like morons
.
The events of the next few hours defy linear recall. I’d never seen David so furious. And Gil? Poor Gil was in the unenviable position of having been left out of the loop in the surrender negotiations by the cops, and then having to take heat for it. He handled it with his usual cool, even taking pains to defend the police department for a commendable job in preparing the evidence.
Me? It’s difficult in retrospect to sort out all the conflicting feelings I had that afternoon. I know I had one secret, unworthy thought. I’d been getting a bad feeling about this case. Maybe I’d gotten myself into something I couldn’t handle. Part of me was thinking,
The most graceful way out of all this would be if Simpson went on the lam
—
and disappeared off the face of the earth
. . . .