Without a Doubt - [82]

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?