The Run of His Life: The People v. O. J. Simpson (2 page)

“I’ve asked you all here today because you all know how to try a case,” Shapiro said, “and I’m not afraid to ask for your help.”

But Shapiro actually asked few questions, and though he was pleased to have collected all these fine lawyers together, he didn’t listen much to what they had to say. Shapiro’s confidence was astonishing: He had the answer for O.J. Simpson. His client, he vowed, would go to trial and be acquitted. The strategy was set. Shapiro was caught up short only once. Michael Baden, the eminent medical examiner whom Shapiro had retained as an expert in the case, mentioned at the meeting that the autopsy results on the victims showed the possibility that more than one person had killed Nicole and Ron. Robert Shapiro paused to consider the implications. “So,” he asked the group, “that means O.J. and who else did it?”

This remark, too, drew stunned silence, and the meeting soon broke up. Shapiro took several of the participants out to dinner at Nicky Blair’s, a venerable (and now defunct) Hollywood hangout. A few hardy souls concluded the evening with drinks at the Beverly Hills estate of Shapiro’s friend and former client Robert Evans, the movie producer whom Shapiro had steered clear of formal charges in the infamous Cotton Club murders of 1983.

Among the guests at Shapiro’s meeting most pleased to have been invited was Marshall Grossman. Though he had enjoyed considerable success in the world of civil litigation, Grossman had never tried a criminal case, and the glamour and excitement of the Simpson case appealed to him. However, as Grossman later pondered what he had heard at the meeting, he hesitated. Grossman had tried cases for high stakes before, but he realized that this case, as Shapiro planned to defend it, would become something much bigger than the trial of a single defendant. If Shapiro had his way, it would come to involve (and possibly consume) the whole city of Los Angeles. Ultimately, Grossman decided this kind of public spectacle would not be for him.

The notion that Grossman might play a part in the Simpson case had generated excitement at his law firm, and he felt he owed his colleagues an explanation for his decision. At 11:12
A.M.
on July 6, 1994, he sent an E-mail message around his firm that said, “I am sending a letter to the lead trial lawyer in the case this morning informing him of my decision” not to join the defense effort. The Simpson case, Grossman went on, “carries with it a high risk of racial divisiveness for our community, a situation which I don’t wish to contribute to and would rather reserve the opportunity for a healing role if need be.”

Johnnie L. (just “L”) Cochran, Jr., loved appearing on
Nightline
—as well as the
Today
show, the
CBS Evening News
, and the
NBC Nightly News
. In the days immediately after the murders in Brentwood, he did them all, and the programs’ producers were happy to have him, too. Cochran was a poised, accomplished, telegenic African-American lawyer, the answer to a network booker’s dreams. Within a week of the murders, the
Today
show even made him a paid consultant.

As it happened, on the evening of June 17, 1994—the day Al Cowlings led the nation on the low-speed chase down the Los Angeles freeways—Cochran was booked to analyze the events of the day on
Nightline
. Though television viewers never knew it, Cochran’s position in the case was considerably more complicated than that of the other legal experts who were surfacing in the media to analyze the case. Cochran had personal knowledge of
what was going on behind the scenes. He was a friend of O.J. Simpson’s—not, in normal circumstances, an intimate confidant, but certainly a long-term acquaintance. Since the day of the murders, Simpson had been on the phone with Cochran talking about his plight and asking the attorney to join in his defense efforts. On the air, Cochran was cautious and only mildly pro-defense. His comment that evening on
Nightline
was typical of what he was saying on all the programs: “I think that the important thing for all Americans to understand is that this is a tragic, tragic case, but at this point he’s still presumed to be innocent.”

Off camera, though, Cochran, like Shapiro, could afford to be more blunt. For example, during a break in the broadcast of
Nightline
on June 17 in ABC’s studios in Los Angeles, Cochran sized up the situation very differently from the way he did for the program’s viewers. “O.J. is in massive denial,” Cochran told a friend. “He obviously did it. He should do a diminished-capacity plea and he might have a chance to get out in a reasonable amount of time.” When, the following week, Cochran traveled to Burbank for his early-morning duty to the
Today
show, he expressed the same sentiments—likewise to friends, off camera.

But in the days to come, as Cochran continued to listen to Simpson’s entreaties, the lawyer learned that the defendant had no interest in pleading guilty. He wanted to go to trial and win—and he wanted Cochran to represent him. Cochran was torn. He enjoyed the broadcasting work; it was easy, flattering, low-stress, and, at several hundred dollars per appearance on
Today
, the money wasn’t bad, either. But how could he turn down what was shaping up to be the trial of the century? Unlike Shapiro, Cochran’s métier was trying cases, working before juries in a courtroom. Questioning Cochran on the June 20 edition of the
Today
show, Bryant Gumbel made note of the differences in the two men’s reputations. “Mr. Shapiro has a great reputation as a plea bargainer,” Gumbel said. “Do you think him the best man to represent O.J. in a criminal trial?” Cochran’s response was a study in condescension toward Shapiro—and nothing less than an advertisement for himself.

“Well, again,” Cochran told Gumbel, “I think there are lawyers and there are lawyers. He is a fine lawyer, but if the matter is to be tried, I think one needs one who is very well experienced and skilled in trying cases—a litigator, if you will. And I would not be
surprised if you didn’t see a lawyer—another lawyer, trial lawyer—come in and do that.” Cochran, of course, did not let on that he was in fact at that very moment weighing whether to step in and take that trial lawyer role.

After the preliminary hearing ended on July 8 and Simpson was ordered to stand trial in sixty days, Cochran knew he had to make up his mind. He had a large circle of friends, and often liked to talk himself into (or out of) ideas by bouncing them off others. Cochran worked the phones.

One afternoon in mid-July, the phone rang in the office of a lawyer who also knew the stresses of high-profile cases. “
You
should do it,” Cochran teased the lawyer, but he was really turning his own possible role over in his mind. The upside wasn’t difficult to recognize. Any trial lawyer would relish the chance to perform in front of the biggest audience in American legal history. The downside, as Cochran explained it, was more complex. Simpson was a peer. “He’s a friend,” Cochran said, “and that’s a mess when you start trying to represent a friend.” Cochran wondered whether their relationship might hinder his ability to conduct the case the way he wanted. The last problem was in many ways the simplest, but also the most profound. Cochran’s relationship with this friend was such that he could speak in a shorthand they would both understand. He hesitated for a while before he came out and said what was on his mind. If Johnnie Cochran’s career had established anything at that point, it was that he liked to win. But he had talked to his prospective client and sized up the evidence against him. Ultimately, Cochran’s problem with the Simpson case was a simple one.

“The case,” said Cochran, “is a loser.”

Of course they knew.

Of course Robert Shapiro and Johnnie Cochran knew from the start what any reasonably attentive student of the murders of Nicole Brown Simpson and Ronald Lyle Goldman could see: that O.J. Simpson was guilty of killing them. Their dilemma, then, was the oldest, as well as the most common, quandary of the criminal defense attorney: what to do about a guilty client.

The answer, they decided, was race. Because of the overwhelming evidence of Simpson’s guilt, his lawyers could not undertake a defense aimed at proving his innocence—one that sought to establish, say, that some other person had committed the murders. Instead, in an astonishing act of legal bravado, they sought to create for the client—a man they believed to be a killer—the mantle of victimhood. Almost from the day of Simpson’s arrest, his lawyers sought to invent a separate narrative, an alternative reality, for the events of June 12, 1994. This fictional version was both elegant and dramatic. It posited that Simpson was the victim of a wide-ranging conspiracy of racist law enforcement officials who had fabricated and planted evidence in order to frame him for a crime he did not commit. It was also, of course, an obscene parody of an authentic civil rights struggle, for this one pitted a guilty “victim” against innocent “perpetrators.”

These conclusions are the result of more than two years of reporting on the Simpson case. The week after the murders, I was assigned to cover the story for
The New Yorker
magazine. In addition to attending Simpson’s trial in Los Angeles Superior Court, I interviewed more than two hundred people, many of them repeatedly. I have had access to the full documentary record of the case—including internal memoranda of both the prosecution and the defense teams; advice provided by jury consultants to both the prosecution and the defense; the police “murder book,” with its summaries of all LAPD interviews with witnesses; the written summaries of all witness interviews by members of the defense team; heretofore secret grand-jury testimony; and depositions from the pending civil case against Simpson. I have also reviewed the enormous coverage of the case in the news media, an especially important task in the context of this case. The participants in the Simpson case worked obsessively to influence press coverage. These efforts to shape the news—some successful, some not—had important and lasting consequences from the night of the murders to the morning of the verdict.

Indeed, the heart of the defense strategy featured an effort at public storytelling, the creation of a counternarrative based on the idea of a police conspiracy to frame Simpson. For this effort, the defense needed a receptive audience, which it most definitely had in the
African-Americans who dominated the jury pool in downtown Los Angeles. The defense strategy played to experiences that were anything but fictional—above all, the decades of racism in and by the Los Angeles Police Department. The defense sought to identify the Simpson case as the latest in a series of racial abuses by the LAPD, which featured such celebrated outrages as the Rodney King case and thousands of other insults and affronts great and small. This legacy of black distrust of the LAPD was the fertile soil in which the Simpson defense strategy grew. As the events of the case unfolded, the LAPD more than lived up to its reputation as one of the worst big-city police departments in the United States, one that tolerated sloth, incompetence, and racism. As it happened, though, bad as the LAPD was, it did not frame O.J. Simpson; no one planted or fabricated any evidence. In fact, the defense cleverly obscured the one actual police conspiracy that was revealed over the course of the case—that of the starstruck cops who in 1989 tried to minimize and excuse O.J. Simpson’s history of domestic violence.

It is ultimately unknowable whether a brilliant effort by prosecutors in the Simpson case could have produced a conviction in spite of the defense effort to make the case a racial referendum. There was, alas, no such splendid performance. Indeed, despite the best intentions, the case was largely botched by the Los Angeles District Attorney’s Office. The prosecutors were undone by the twin afflictions most common among government lawyers: arrogance (mostly Marcia Clark’s) and ineptitude (largely Christopher Darden’s). Drunk on virtue, the prosecutors squandered what little chance they had for victory.

At its core, the Simpson case was a horrific yet routine domestic-violence homicide. It metastasized into a national drama, one that exposed deep fissures in American society, for one reason: because the defendant’s lawyers thought that using race would help their client win an acquittal. It did. That was all that mattered to them. More than a decade ago, Alan Dershowitz, one of Simpson’s lawyers, gave a candid précis of the approach that would characterize the defense team’s efforts. In his book
The Best Defense
, Dershowitz wrote, “Once I decide to take a case, I have only one agenda: I want to win. I will try, by every fair and legal means, to get my client off—without regard to the consequences.”