The O.J. Simpson Trial: Runaway Grand Jury

This week, the defense hires Alan Dershowitz, Marcia Clark questions witnesses and Jill Shively tries to get a salad. Digressions include narcissism, "Hard Copy" and the dad from "The Wonder Years." Susan Herman, the voice of reason in our Charlie Rose clip, is the Ruth Bader Ginsburg Professor of Law at Brooklyn Law School.

This episode includes descriptions of domestic violence.

Clips:
The Charlie Rose panel
The first day of 'prelims'

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Where else to find us:
Sarah's other show, You Are Good
Mike's other show, Maintenance Phase

Transcript

Sarah: Yeah. You just want to believe what he's saying. I trust anyone who's sort of very tiredly conveying ideas while they're eating some soup.

Mike: Welcome to You're Wrong About, the podcast that lives in your guests house, but never makes it weird. I think it's a little throwback. 

Sarah: We try not to make it weird. We wish you wouldn't talk during the Packers game.

Mike: I'm Michael Hobbes.

Sarah: I'm Sarah Marshall.

Mike: And if you want to support the show, we are on Patreon at patreon.com/yourewrongabout, and you can also find t-shirts and little PayPal links and other ways to support us in the description.

Sarah: Cute, little, denouement shirts. 

Mike: And today we are continuing our march through history, the OJ Simpson trial.

Sarah: Yeah. We're continuing our pub crawl through history. 

Mike: It's been so long since we've done a normal episode that I'm like, how do I do this again? What do the first three minutes sound like?

Sarah: I'm like, who says the tagline at the end of the thing? So this is great. I feel like you remember absolutely nothing of the OJ Simpson trial, and I would love to know what your summary of its salient points are at this stage in the game. 

Mike: Well, I believe where we last left Mr. Simpson, he was putting together his Dream Team. So we met F. Lee Bailey who used to be hot, the most important detail from that episode. 

Sarah: My favorite part of that was that someone on Twitter was like, I feel like Sarah's type is like the dad from the Wonder Years. That is exactly my type. 

Mike: Nailed it. The first good tweet. Wow. 

Sarah: The first and last. So all that is to say is that like guilt or innocence, hotness is more subjective than some might imagine. So yes, we're assembling the dream team and yeah, we are picking up with the perhaps next, most synonymous person with the OJ trial of the lawyers who we've amassed so far, who is of course Alan Dershowitz. Who is Alan Dershowitz?

Mike: He's like the wrongest man of the 21st century. Name a public controversy and he has been loudly wrong about it. This whole show is a letter to him. 

Sarah: Yeah. We're finally realizing what this has all been for. 

Mike: Yes. I just finished his abysmal book on cancel culture.

Sarah: Mike, the things you do for us. What is this? Tell me. Because I was going to talk and we'll talk in a minute, talk about a book that he was just coming out with in 1994, which is the Abuse Excuse, a) has a really nonsensical argument and b) in a way that is perhaps even more insulting to the reader is just visibly lazy. Most of it is just random columns and it's like, Alan, I know you write a lot of columns, but that doesn't mean you have to try and trick people into reading them and thinking they're a book.

Mike: It seems like he's had this downward trajectory where he used to be relatively well-regarded or at least not sort of a national joke, but the last five, ten years, he's just descended into Trumpist racist weirdness, dunking on random college students. I don't know if he's on Twitter, but he definitely has Twitter brain.

Sarah: Yeah. And The Abuse Excuse, the book he came out with in ‘94. Can I just read you a little bit of this shiningly beautiful opening? 

Mike: Okay. 

Sarah: Yay. Introduction. “The abuse excuse, the legal tactic by which criminal defendants claim a history of abuse as an excuse for violent retaliation, is quickly becoming a license to kill and maim. More and more defense lawyers are employing this tactic and more and more jurors are buying it. It is a dangerous trend with serious and widespread implications for the safety and Liberty of every American.”

Mike: The man can write a title paragraph. 

Sarah: That's the thing. I feel like something that lawyers are trained to be able to do is to just produce a lot of pages and they know how to write coherent sentences and they know how to structure an argument. Honestly, a lot of people, if they encounter something that feels structurally smart, will be like, well, that must be right. So sure. 

Mike: If you’re an above average writer, you can get away with some unbelievably bad thinking. 

Sarah: Okay. Paragraph two, “Among the reason excuses that have been accepted by at least some jurors have been battered women's syndrome, abused child syndrome, rape trauma syndrome, and urban survival syndrome. This has encouraged lawyers to try other abuse excuses, such as quote, black rage.” These are like all law and order episodes, by the way. “On the surface, the abuse excuse affects only the few handfuls of defendants who raise it, and those who are most immediately impacted by an acquittal or reduced charge. But at a deeper level, the abuse excuse is a symptom of a general abdication of responsibility by individuals, families, groups, and even nations. Its widespread acceptance is dangerous to the very tenants of democracy, which presuppose personal accountability for choices and actions”.

Mike: Slippery slope nonsense.

Sarah: And then there's a footnote. And this is honestly my favorite, “I see this trend is very disturbing. It brought down the Greek democratic experiment. It's that dangerous.” One Roger L.  Connan, quoted in the American bar association. 

Mike: He's such a fucking snowflake. A couple people are getting reduced sentences and somehow, he weaves this little web into this could be the downfall of democracy and the end of Rome.

Sarah: What's funniest to me about this, it's like Allen, you're a defense attorney. Why are you doing a real power move to be essentially shitting all over what appears to be a trend in your field that I can't imagine you want to avail yourself of at some point if you haven't already. Okay. So the basic argument he's making is things are worse. Things are getting worse, and people will always buy that argument. It'll always feel true. I am convinced never in the history of time or at least civilization have adults stood around being like, things are improving since I was a child.

Mike: Also those arguments always lead to electing somebody who promises that they can make it like it was.

Sarah: And we've seen this all around us and we've seen this on the show again and again, this concept where,  if you want to not question your own behaviors, convince yourself of an argument where you're the victim and where you can do anything. And you can do this in response to something pretty mild happening. This idea that some people are getting acquitted. Well, they're not always getting acquitted, but sometimes they're getting reduced sentences. Well, they're not always getting reduced sentences, but some of the juries are buying these arguments that abuse is mitigating and it's like, oh my God, the jurors debated the verdict, as is their jobs. This is awful. 

Mike: I love that he included ‘rape trauma syndrome’ in there. 

Sarah: The idea that it's like far out to suggest that rape might be traumatic? 

Mike: Exactly. And that that might affect your behavior in other ways. That actually seems kind of reasonable and in line with what we know about human behavior and an entire body of research.

Sarah: Yeah. I feel as if there's something very telling about the fact that as we start to talk about PTSD and trauma as something that could have lasting effects on human beings, that kind of enters the public mind, I think, in the seventies and eighties. And there's such incredible resistance to this. And in this Dershowitz response, I see too, we know that his ex-wife alleged very serious abuse and said that he had abused her in really awful ways.

Mike: It seems relevant.

Sarah: It seems relevant. And the arguments that people get really triggered by honestly, you can see where their baggage is a lot of the time. 

Okay. So with that in mind, let's watch something that has aged very interestingly, which is Alan Dershowitz on Charlie Rose on June 20th, 1994. So a couple of days after the Bronco chase. And Charlie Rose, to catch anyone up who's missed him in the cascade of news of the past few years, is historically a charmingly boring and soporific PBS talk show host who also got fired because of, I believe, workplace sexual harassment. Okay. And we're going to watch it for like two minutes. Okay. 3, 2, 1, go. 

“The language of today, and that's why I bring this up, The Abuse Excuse, the language of the day today is you defend by saying you were abused and I don't think he means it literally, but obviously when you have an interaction of this kind, it's going to be two ways and we're going to see some evidence coming out that she didn't treat him well. And the fact that he would use the phrase, “I was a battered husband” in somewhat an attempt to what justify or lay a foundation for the defense in a double murder case, shows us how far we've come in permitting this kind of language, to become part of the national psyche. And it's an epidemic and it's very dangerous and it goes to the core of our sense of responsibility. “

“I think too, another part of that letter speaks to how much this has become accepted and tolerated in our society where we had a happy, we had a good relationship. This, this was just we had our ups and downs as any healthy, normal relationship did. This isn't healthy to have the police come to your house.”

“He says the media caused it and the police caused it and everybody else caused it except him.” 

“But we have another analogy. We had a terrific judge, David I'm sure it will agree with me. One of the greatest judges in New York history, Saul Locklear, who I have argued in front of many times. Nobody in a trillion years could have suspected that that night after you've argued a case in front of him and he was a perfect gentleman and a great judge, he was putting on a cowboy hat, stalking a woman, writing threatening letters, and ended up in jail. Now thank God it didn't escalate to physical violence, but there is an analogy in the sense that nobody who knew him believed that in, in that case, there were no dark rumors I think, circulating in a newsroom. “

“And so what does that say?”

“It confirms your point that there are no nice guys when it comes to this crime, everybody is potentially able to do this terrible thing. And because we've had such a history of excusing it and justifying it and understanding it, we haven't attached the stigma to it that ought to be attached.”

“But don’t you think things have changed a little bit. I Again, to go back to the journalistic angle that if something like this were to happen today to a celebrity like OJ Simpson, it wouldn't be on page 20. And that Hertz would have dropped them. The consciousness is much higher now than it was back in whatever year that was 1989.”

“And something like this meaning…”

‘When the police came on New Year's day.”

“No, I don't because we have a city Councilman who was arrested for battery recently, we have the chief judge of New York state.” 

“ We have another judge, but we have another judge a week from now, if something like that happens, I believe that it would change things, wouldn’t it?”

Sarah: Okay. So Alan Dershowitz is citing an example of a recent case involving a revered judge in New York named Saul Locklear, who was stalking, harassing ,blackmailing, and eventually threatened to kidnap the daughter of a woman who he had had an affair with. His read on this is, this is a serious crime. There are no good guys. Any guy can do this. We haven't sufficiently stigmatized domestic abuse, which is essentially the opposite of what his book is arguing. 

Mike: It's weird to be defending somebody who confirmed Dudley committed domestic abuse while saying we should have stigmatized it.

Sarah: Yeah. Well, here's the thing, Mike. He isn't on the defense team yet. Oh, he will join it in about 24 hours. 

Mike: This is pre-OJ Allen. 

Sarah: This is just him appearing in his capacity as a freelance legal commentator. 

Mike: Oh see, that's your problem right there. You can't go around saying stuff like abuse as bad because you might have to get a job.

Sarah:   The next day.

Mike: Yeah. And then like this other dude and the woman are saying that things have changed now. And I guess they're saying OJ wouldn't have gotten off with such a light sentence now if that happened. 

Sarah: The men are arguing that things have changed now, and they're saying, this would get more publicity now, we will be talking about it. It would be taken more seriously. And Susan Herman who looks like Katarina Witt, dresses, Carmen San Diego, which is the highest compliment I can give anyone just has this look of I know that I know this expression extremely well from making it with my own face, which is where you're in a room full of men. They're saying incredibly stupid things. And you have to be like, well, I'm not a hundred percent sure I agree with your police work there Lou.

Mike: Isn't Alan's argument saying that to understand somebody like OJ Simpson who abused his wife, we need to understand the societal context, but that's what he refuses to do with abuse victims. 

Sarah:   That moment really gave me pause because I was like, this is someone who has allegations that I tend to believe, history of the same crime that he's discussing on television, and if you yourself have abused your wife in the past, if that's true, then that casts an interesting light on the idea of talking about, no one can spot someone who does this. Nobody knows. I almost feel like that's kind of a weirdly optimistic way of being like, nobody knows about me. And OJ Simpson's dream team would indeed go on to  give some time to the idea that Nicole had really been abusing OJ. She had been using whatever power they could imagine her to have over him. And that he was the one who was pushed to a breaking point. And so to tangent for a little bit to cul de sac, if you will. I have been listening to a lot of audio books about the Trump White House and Alan Dershowitz, of course, was important to both of these stories. 

And I don't know, I wonder what you think of this. If you can draw a path from what happened in the OJ Simpson trial, which is basically, from the beginning, a lot of his lawyers being like, okay, you look guilty. We're pretty sure you're guilty so, it would be fine if you pleaded to diminish capacity or were like, yes, I did it, but here's why. And we can mitigate the heck out of it. And the evidence looks really bad, but we can appeal to people emotionally. We can get you out in a few years, isn't that appealing? And he was like, no, no, it isn't because I didn't do it because I can't, in my opinion, he could not believe that he had done it any more than Trump can believe that he's done any of the things that he's done, that we all saw him do. 

We've talked also in previous episodes of this OJ series about this concept of narcissism. And how this idea that someone who is a narcissist is in control of their malignancy and is sort of a smart, interesting vampire, as opposed to my feeling, again, based on my personal experiences over the years, that narcissism, I think is something that like you can't control anywhere and aware of and you're playing yourself all the time. And I think a lot of people are able to lie with no tension. Not because they're so great at lying or they're like skilled con artists or whatever, or whatever kind of glorifying descriptor you want to give, but just because their egos are so fragile that they cannot accept the truth into their psyche.

Mike: And they can't engage in any strategic thinking because that would require an accurate assessment of the actual circumstances that they're in and their strengths and weaknesses. 

Sarah: And just the parallels between OJ and Trump in that way of his lawyers, on both sides, lawyers trying to prep their defendant and the defendant being like, no, no, no. The process of preparing for this would mean me having thoughts that will surely destroy me and of course, the people who are afraid of their own thoughts are the ones who hurt other people the most sometimes. 

Mike: So how does Alan end up representing OJ? 

Sarah: So this is a great story and there's also something I don't know, kind of inevitable honestly about the fact that as we have for, since the start of the show, I'm using Jeffrey Toobin's The Run of his Life as a source. Jeffrey Toobin who less than a year ago I think, took his wiener out in a zoom meeting.

Mike: I was not going to add that fun fact. 

Sarah: I feel like it's necessary context at this point. We're reading a lawyer with a shady history talking about another lawyer with a shadier history. It's just like, all right.

Mike: The story is like all dirt bags all the way down.

Sarah:   I remember the nineties. Yeah. But this is also such a fabulous burn. I have to give it to him. This is Jefferey Toobin's burn on Alan Dershowitz. “Alan Dershowitz has an enviable life, a prestigious professorship, lucrative deals for books and speeches, a full plate of wealthy clients eager to pay him for legal work, and yet he seemingly will appear on any program and talk about anything. His lust for publicity has a manic quality as if the bookish Shiva boy from Brooklyn still cannot believe that others care what he thinks.” I love that. 

Mike: People in professions who are chasing media more than they're chasing achievement in their own career. 

Sarah: Defending clients…?

Mike: Yeah, this is the beginning of a lot of rise and fall stories. 

Sarah: Alan Dershowitz, keeping with his reputation as a man about town, appears on Charlie Rose on June 20th, 1994, and is making all kinds of predictions too. He's saying, this might end up in a hung jury. He's kind of pushing elsewhere in the show, his abuse excuse thesis, which is that the Menendez brothers got a hung jury, Lorena Bobbitt didn't serve time in prison. No one is going to prison ever again. So, okay. So here's an excerpt from Toobin's book. “Dershowitz’s comments irritated Shapiro when they got back to him. He told a friend, how can we shut that guy up? After a pause he said, half joking. I guess we'll have to hire him.” And the day after Dershowitz appeared on Charlie Rose, Robert Shapiro called Alan Dershowitz and invited him to join the defense team. 

Mike: So they just did it to neutralize him for talking trash about OJ publicly. 

Sarah: Yeah. I'm sure also that they were like, he's a good lawyer. I don't know if he was a good lawyer. He definitely won sometimes, seemingly. He definitely talked about it a lot whenever he did win, it seems likely that they would see him as an asset. They’re going on this defense lawyer shopping spree at this time. And they're like, we got to get F. Lee Bailey, who else is like on TV a lot and seems important. Who else is a celebrity lawyer whose name people know? 

So Alan Dershowitz is certainly that because he's on TV every five minutes, but yeah, I think it also makes sense that you're staring down the barrel of a pretty long trial. They don't know how long it's going to be, but you can imagine it'll drag through certainly going to contest everything they can and that struck his stuff out. Better to have Alan Dershowitz on your side than working against you and like, saying a bunch of stuff in the media every night. 

Mike: And telling a sexual harasser negative things about your client every day. 

Sarah: Yeah. And I think the shows that they are embracing early on that this is going to be a trial by media and that's certainly going to affect the rest of our story here today. Okay, this is another good line. Toobin writes, “No law, or even any ethical rule prevented Dershowitz from accepting the assignment. Shamelessness is a moral rather than a legal concept.”

Mike: So was he just a moral vacuum at this time? Is this kind of how he's known in the industry? 

Sarah: Well, and I think also like he early on like had a tendency to defend people who already we're news. He defended Leona Helmsley, he defended Claus von Bulow on appeal. And you can say that's chasing the spotlight, which I think it certainly was, but it's also establishing something of a specialty, right? So we have brought on some lawyers. We don't have everyone yet. 

Notably Johnny Cochran is still out of the game, but we have enough people that we can start making moves. And so their first move, which is quite bold, is to try to get the grand jury rescued by basically saying the grand jury has already been so contaminated by the advanced press coverage of our client that it's already too late. They already know too much. Let's just go straight to the preliminary hearing.

Mike: Oh, can they do that? 

Sarah: What people say at the time is this is unprecedented. We've never seen anything like this before, but also the prosecution has to admit that the case itself is unprecedented. And so it does make a certain kind of sense because of what happens, and I feel like you might be familiar with this from the TV show because it's a fairly memorable turn of events. So Marcia is going forward with the grand jury, she's had her face off with Kato Kaelin, who's playing three-dimensional chess with her, and now she's moving forward with her witnesses. 

Mike: This is basically Marcia investigating the case herself because she's taken it out of the hands of the LAPD. And she's now in paneling the grand jury, which basically means she is doing her own fact-finding as the prosecutor's office in LA. 

Sarah: Yeah. And of course the LAPD is continuing with their investigation. But Marcia, one of the reasons that she was pushing to convene a grand jury at this stage, she's like the LAPD is moving so unbelievably slowly that if we convene a grand jury, then we have to indict him. We have to arraign him, let's just do that because if they don't want to investigate this, then we will. 

So she interviews Allen Park, who was the limo driver who's the one who can testify as to the little bits of time that OJ had to be doing whatever it was he was doing before he showed up to take his limo ride. The bar manager at Mezzaluna who testifies about Nicole's mom leaving her glasses there, Nicole calling in about them. They talked to one of Nicole's neighbors, who found her and Ron Goldman's bodies. 

And she talks to Jill Shively, who at the start of things looks like an extremely promising witness because her testimony is that she was at an intersection and saw OJ Simpson at a crucial moment in the timeline of the night of the murders. Jill at 10:45 on the night of June 12th is trying to get to a grocery store to get to the salad bar because she hasn't eaten anything all day. And so it's closing at 11. I feel like we've all been in this situation. So she's driving along San Vicini and comes to an intersection, she accelerates to try and get through a light before it changes. And driving against the light she says a white car, like a Bronco perhaps, races through the intersection as she is approaching it and basically, they almost collide. And then she says that the car drives up on the median and then there's another driver who's blocking the white car. And so the driver of it starts honking and yelling, and according to Jill, saying, “Move your damn car, move it.” And she looks at the driver and then she's like, “Oh my God, that's Marcus Allen.” And then she's like, “No, wait. That's OJ Simpson.” After that, he drives away. And she says that she also actually notices the license plate of the white car as well. 

Mike: I need to know if she got her salad.

Sarah: The book doesn't tell us if she got her salad. Yeah, I hope she got her salad. I know I'm very invested in that aspect of the story. 

Mike: So Kato was not in the car. This was not the trip to McDonald's. 

Sarah: So this would be as he's speeding back home after committing the murders, that would be the prosecution theory of when this happened. And it's a little fuzzy because apparently Kato hears the loud thumps at 10:40 and she's saying that this happened at about 10:45. And what happens then is that she finds out the next day that Nicole Brown Simpson has been murdered by someone. And I can see, hearing about that and thinking about that thing that happened last night, as you were getting salad and being like, what if I'm connected to this murder that happened relatively close to where I was driving? Because I think we also have a hard time suggesting that someone, and I'm not saying that's the case here, but generally saying that someone might not be telling the truth, because we assume that lying has to be something done out of malice, as opposed to out of say, genuine belief that you were telling the truth, or the very human desire to be somehow connected to a large event that happens near you.

Mike: You want to feel special. 

Sarah: Yeah. I feel like there's this thing too, that kind of gets at why this was such a media phenomenon where people want to be close to try kitty. We want to be tangential to tragedy in some way. We want to be grazed by it, but not hurt by it. 

Mike: And also spectacle. Anything involving celebrities, people are going to edge their way toward. 

Sarah: And both of these things are happening here. And Jill calls the police, things move very quickly. Some detectives interview her, she's brought a grand jury subpoena on Saturday, June 18th, and she testifies the following week. And of course in the process of that reporters find out that she is going to testify, and she sells an interview to hard copy, which Marcia Clark then sees after she has given her testimony, after she has said, no, she hasn't talked to the media. No, she hasn't told anyone else aside from her mother, she says, I didn't tell anyone, but my mother. 

And so now Marcia is in a position where her witness who looked initially so promising is now on record, technically lying to the grand jury and also, again, if you're going to play it conservative, which the prosecution is trying to do, is compromised. This is an unprecedented area to be working in, in a sense, but, boy, does it seem improper? 

Mike: This is why you don't have famous high profile trials. 

Sarah: This is why no one famous should commit a murder. Just don't do it because the system can't handle you. It can't even handle anything. 

Mike: But all of the incentives just get completely worse when you throw money and attention and celebrity into things. It's not clear to me that you can ever have an impartial trial of a celebrity. 

Sarah: It's hard enough. I don't even think you can have an impartial trial, really. I think you can get close, but I think it's kind of like, this was a metaphor I used to use a lot when it had a much less fraught meeting, like 10 years ago, I used to be like, well, you aim for a hundred percent vaccination rates and you're happy if you've got 93 and I'm like, oh, Sarah. I got to say, I don't really fault Jo Shively in this. This doesn't seem opportunistic.  I don't think it's opportunistic to be courted by a bunch of news outlets who are promising you a ton of money for no work, especially if you've been out of work for a while, as she had at the time and living in an expensive city. 

Mike: People like money.

Sarah: People need money I would even hazard. And also, most people have testified in front of a grand jury in their lives, right? Jill was 33 when this happened. I am 33. I have had no interaction with the legal system. I've gotten tickets. I got called in for jury duty once and they didn't need me that day. The end. I have no idea how any of this works. It's a testament to how boring and confusing the legal system is that Americans spend seven hours a day watching legal dramas and we still really have no functional idea, most of us, what goes on in a courtroom and like what you have to do. Can you talk to the news under these circumstances? No, you can't. Here's why, we don't know that stuff. We just know that if you kind of pressure someone on the witness stand, they will confess to a murder, every time. 

So Marcia finds out about the Hard Copy thing. That's bad enough. And then she sees that she has a fax from a TV actor named Brian Patrick Clark who's like, Hey, I just thought you should know maybe that your witness scammed me because she's like, Hey, I have the screenplay, a production companies about to buy it for $250,000 and I want you to start it. But before I get the money, I need you to loan me $6,000 until I get my money in and then I'll pay you back and then you'll start in my movie. And it turns out that none of that was true and she was using a script for the Michael Keaton film, My Life, which was in pre-production at the time. So she essentially did a Nigerian screenplay writer scam. 

Mike: Jill does like money.

Sarah: Yeah. You know, again, speaking as a random lay person, it's like, well, what do you do as a lawyer when you're like, this story doesn't specifically cast out on the truth of the thing that she just testified about, but it also does suggest that she could have made this whole thing up.  This could be another grift. So in this case where we appear to have an abundance of witnesses, why use her? Why bother? Why compromise the case that way? 

Mike: There's so much other stuff. 

Sarah: So Jeffrey Toobin, who loves to Monday morning quarterback other lawyers' decisions, says that Marcia recused Jill in a fit of pique and that it was a miscalculation and a bad idea, and he wouldn't have done that. And Marcia and her book is like, Jeffrey didn't know about the screenplay scam thing. And so Marcia basically in order to just credit Jill's testimony has to bring her back in the next day and then cross examine her. 

Mike: Oh no, and then information comes in and she has to flip flop and then cross examine her own witness.

Sarah: Yes. She's like what a week. And her boss is like, it's Wednesday lemon. And she says, ladies and gentlemen of the jury, because it is our duty as prosecutors to present only that evidence of which we are 110% confident as to its truthfulness and reliability, I must now ask you to completely disregard the statements given and the testimony given by Joe Shively in this case. And I feel like another interesting thing about the legacy of this trial is that we have this completely uncharacteristic functioning of the defense, where, no expense spared, hire every lawyer, you have as many resources as possible, if not more than the state, this never happens. This is a unicorn. And yet Americans are given this idea of like, well, I guess this is what trials are like, and we just have seven defense lawyers. 

And at the same time, it's an interesting piece of PR for the prosecution because I think the way we have tended to reflect on it in the past is like, boy was that embarrassing. They lost and they should have won, and it looked really bad. But also like it's kind of good for the prosecution to look bad. It's good to be known for your performance in a case where you fell behind because you were too scrupulous and where you behaved too carefully, and the defense was able to outmaneuver you by kind of throwing out whatever random arguments they could think of.

 I don't know. I find it interesting to think about how much the whole legal system successfully camouflaged continuing endemic problems in prosecutor's offices because they had had this kind of national literacy making a depiction of what they did as like, you know, where you show up and do your best and are very moral about it and you just get screwed every day. 

Mike: Well, this is what you get from a system that's built around winning and not built around seeking truth. In an ordinary system that was actually trying to find out what happened, you'd be like, oh, we have this information. Next day, we found out some new information. Let's discard that, it's actually not that big of a deal. But when you turn it into fucking sports, and especially a nationally televised sporting nine month long event, you're going to have everybody looking at it through the lens of who's winning and who's losing. So this is an example of the system working, but I can't see prosecutors doing this very often, right?

Sarah: The sheer number of convictions that involve some kind of jailhouse informant testimony that essentially boils down to like, yeah. He told me that he did murder. Yeah. That's the ticket. There are prosecutors in America who are comfortable putting someone on the stand who they have not thought very much about at all. I have a theory that whenever someone has to insist on what they're doing or who they are, then maybe it's not entirely true. Certainly it got said a lot in this trial. And I think that this is kind of a standard lawyerism, this idea that we are on a search for truth. This trial is a search for truth. And it's like, if it was, you wouldn't say it that much, would you.

Mike: It's like Shane Dawson saying he's an empath to steal an observation from you. 

Sarah: It is like that. Thank you. So we have this problem with Jill Shively, but like no big deal. We have witnesses coming out of our ears at this point. Marcia continues and interviews Nicole's ex, Keith, who was able to testify about OJ stalking Nicole, surveilling her house, spying on them having an intimate moment. And this is also by the way the week that she hears the police interview with OJ that we talked so much about. So this is, I think Wednesday afternoon that she gets it and goes to her office and listens and has to sort of assimilate that information into what her week is going to be like.

Mike: This was 27 minutes long, where they had him at the police station without a lawyer and didn't pin him down on alibi, didn't really try to catch him in any lies. It was just like a friendly chat. 

Sarah: Mike you're exaggerating. It was 32 minutes long, fake news. So she listens to that, she's like, cool. Then on Thursday, every time Marcia Clark turns on the TV, something relevant to her job is happening. It seems very stressful. And so on Thursday, June 23rd, she learns via television yet again that someone has leaked Nicole's 911 call, the more recent one from her house in Gretna green, where OJ was attempting to break in the door. 

Mike: Oh, the one where Kato heard everything.

Sarah: Yes. The one where Kato is there and doing his people pleasing thing and is the one who repairs the door later on. And so this is the call, we've talked about it in the past. I've asked you to listen to it and we've discussed it, she’s describing what's going on. And she's asked to describe the person and she says, it's OJ Simpson, I think, you know his record, right? To me, there's a sound of fear and also just exhaustion and her voice of how many times do I have to make the same call? And so that's leaked to the public. And so the question becomes, and you know, again, in this kind of unprecedented situation, like how do we keep the grand jurors secure from this? How do we protect them from hearing a leaked 911 call from the person who the defendant is accused of murdering?

Mike: And which makes him look unbelievably guilty.

Sarah: Amazingly, this was not a universal response, but yeah, to you and me, it looks very bad for him. And a lot of other people were able to kind of rationalize it, but I don't think Marcia Clark predicted that. So she finds out that the city attorney's office, which prosecuted OJ in 1993 has copies of the 911 tape. Someone in the media has got them based on the state public records act. 

And so before Marcia Clark, according to her, even knows that such tapes are out there, they are being played on television. So again, she has no control over this. Gill Garcetti has no control over this. This is just happening entirely outside of her office and once again, she's like, okay, well, let's now adjust to another thing that just happened on TV right now.

Mike: It's hard to prosecute a case where there's a bottomless appetite for every single piece of minutia. 

Sarah: And the whole system of what trials are, was obviously invented before we had a media landscape anything like this. You used to actually be able to control what information people encountered. And like, that was clearly already kind of impossible by 1994. And, how much impossible-r does it have to be today? And so, meanwhile, back at the defense team, they have already been hoping to get the grand jury recused based on the fact that, even before the 911 call is released, it's like, this is an unprecedented amount of press, we like to swing for the fences. It's reasonable already to try and stop the grand jury before it's had time to indict. 

And one of the reasons for that is that if the grand jury is unable to arrive at an indictment, then you go to a preliminary hearing, which defense attorneys, according to Jeffrey Toobin, who I believe on this point of fact, tend to like more than prosecutors. And the primary difference is that in a grand jury hearing, Marcia Clark as prosecutor gets to do the questioning. It's sort of canted toward the prosecution's case because the question is, do we have sufficient evidence to indict this person? Is it worth going ahead and having a trial at all? But prelims are, according to Marcia, essentially a mini trial where the defense is able to also question witnesses. They can have a crack at cross examination. They can get a sense of what they're going to be looking at when you have the big trial. And also a grand jury is secret. And in this case, a preliminary hearing can be on TV. 

Mike: I was not aware previously of how bonkers this entire process was. Cause it's not just  a normal ass law and order someone gets killed, cops investigate, they find a suspect, they go to trial. All of this stuff is kind of happening at once. The investigation and the trial, and like there's already turf war stuff between the prosecutor and the cops. This is not a normal process. 

Sarah: They're not walking four in a row, down a hallway, all laughing at each other collegially, like in the Law and Order opening credits.

Mike: Which I've never seen.

Sarah: A fish can love a bird this year, but where would they live? 

Mike: Is that from Law and Order? 

Sarah: No, it's from ever after. But one of the interesting things about the legal system is that it kind of defies narrativizing. It feels like baseball to me where things are either happening all at once and you don't even know where to look, there's so much going on or it's just nothing. 

Mike: I'm not going to defend baseball on this. 

Sarah: And so at this point, there's the sense of enmity I'm sure, because the defense team is already bigger, bumptious, and capable of making more trouble than the prosecutor's office is really used to at this point. And also like who wants to be dealing with Alan Dershowitz? Honestly. And basically after the 911 call is released, the prosecutors have to come over to the defense's side ironically, and be like, yeah, we agree. We're done with this grand jury. The well has been poisoned. We can't continue. 

Mike: Wait really? That's it?

Sarah: Yeah. They're like, we can't continue with this grand jury, we have to recuse everybody. Oh, and here's, here's actually the big nail in the coffin. They find out that a couple of grand jurors have been overheard discussing the 911 call, which means that it managed to leak through whatever attempt they made to keep them in the dark. They know. And if one of them knows then, how do you know they all don't know?

Mike: Somebody peed in the backyard pool and everybody out,  we have to start over again. 

Sarah: Everybody out, we have to make a new pool. And actually we're going over to the neighbor's pool and it's going to be on TV and the defense can cross examine people.

Mike: This is nuts. No wonder it was such a shit show. 

Sarah: And nobody knows what the hell they're doing.  I feel like it's when you  show up every day to do a job that you don’t know how to do, which is already difficult. You're already getting thrown a lot of curve balls, and then one day you show up and they're like, great. So, the office is flooded and you're going to do your normal job, but in a snorkel. I feel like the defense is more limber because these are men who are pretty accustomed to trial by media, but as a self-identified methodology queen, if you were Marcia, what would this be like for you?

Mike: It seems like this should go back to the cops now, to just do a real investigation and make some sort of dossier with all of the evidence. Just take a couple months and find out everything and interview everyone. People like Jill who are somewhat unreliable, take them out of it, but just get to the reliable information and kind of start over. But it seems like they can't start over, they have to keep going with this half-baked fruit pie. 

Sarah: I like that it's a fruit pie.

Mike: It’s the only kind I could think of. 

Sarah: I feel like they're trying to stop the media from being so invasive and deciding the story by being like, no, we're doing it. We're telling the story, we're doing it right now. But the media is still seeping in through every crack and affecting things. So I don't know. I feel like my lesson here is that our system was invented when life was fundamentally very different, and it needs to reflect that at this point. That's one of my thoughts. 

Mike: And as we discussed in our Nancy Grace episodes, celebrity trials are not normal trials. I just feel like you need to have a completely different justice system for these kinds of cases, because this fake thing of the jurors, aren't going to find out about the 911 call, unless they're locked in like a room in space, they're gonna find  out about this, right?

Sarah: What is the juror that doesn't find out? You come home, you speak to no one, you wear earplugs when the other jurors are talking. And when you come home to your spouse, and they say hi to you. You go, la, la, la, la, la.

Mike: Normal trials are not on the cover of grocery store tabloids constantly, so you don't have to have these arcane rules. A quote unquote  jury of your peers is just a fundamental contradiction in a case like.

Sarah: This is one of the most reliable things about people like we gossip, we share information, we work information by sharing it. Every time you access a memory, you run the risk of altering it. And every time you tell a story, you will probably alter it. 

Mike: Totally. 

Sarah: If there's one thing we've learned from doing the show, it's this. It's that we think we can keep track of facts and we can't. And by trying in good faith to share information, we will share untruths. Yeah, we're all lying all the time. And we don't even know it. 

Mike: If I was on a jury of some person who was famous and even if it was someone I didn't know, like it was some big K-pop star or something, I would probably Google them. I don't know if I could go home at night and resist the impulse to actually find out what their deal was.

Sarah: And then I also feel like getting ahead of ourselves, but this trial was nine months long. It defies the human attention span to expect people to be watching a trial that many. I tried my best and worked really hard to be a good juror. My mind would wander away like a puppy. 

Mike: Yeah. The idea of sitting in a courtroom and actually being there for eight hours of this every day, it's like some sort of hex that gets put on your family.

Sarah: It is. And so we are at the start of  an untenable journey and it's already looking untenable. And so we began the preliminary hearing on June 30th, 1994, 10 days after Alan Dershowitz's Charlie Rose appearance. I promised you that I would advance this forward in time, and I did. 

Mike: Wow. 

Sarah: We're moving at warp speed now.

Mike: 10 days, look at us. 

Sarah: But I thought that we could end by just looking at the opening of the prelims, because aside from the arraignment, which has been on TV and the Bronco case, which was as much on TV as anything can possibly be, this is the start of the public's viewing really of the trial. This is our first chance to watch the legal system in action with OJ Simpson and his team inside of it, aside from just a guilty plea. 

Mike: 3, 2, 1 go. 

“All right, there are a number of matters on calendar today. I think one matter that can be resolved in fairly short order and that relates to the hair sample that the court did grant in order for a hair sample, the defense submitted an order to the court requesting to limit that hair sample to one here. Ms. Clark, how many, how much hair do the people need?” 

“Well, your honor, hair samples, as I'm sure the defense must be aware of, you know what being effectively compared with an edited sample the cover from a crime scene has to be taken from each area of the suspect’s head, and that means that a minimum of 5 to 10 hairs from each area would usually amounts to about a hundred hairs, and I've never seen a court attempt to restrict that, because that is obviously the matter that a criminal was we'd have to determine  based on what he can recover.” 

Mike: I'm already bored. Oh my God. This is what we talk about with rich people justice, right? That you just fight every single technical thing. 

Sarah: Exactly. Cause you can. Well, and so what has happened here? Can you tell us what we just watched?

Mike: So they come in, they sit down and then apparently there's some issue with how many hairs from OJ they need to get in the sample. And so Marcia's like, we want to get a hundred hairs, as many hairs as possible. And then Shapiro is like, no, that's bad because of reasons. And you should have no hair.  

Sarah: No, they're offering a single hair. They're like, we're going to give you one hair.

Mike: And then, God this probably goes on for minutes. 

Sarah: Yeah, I think it's so hilarious that the judge they're arguing this before, judge Kennedy Powell, says, now there are a number of matters on calendar today, I think there is one matter that can be resolved in fairly short order. And it's like, why would you think that? 

Mike: So what do they decide? You know? 

Sarah: Well, essentially the judge splits the difference and is like, okay, you can have a maximum of 10 hairs, and Marcia's like, are you kidding me? We do this all the time. This is protocol. They need the hair. And speaking of trials as a broader phenomenon,  we have plenty of information that tells us conclusively that we have played fast and loose with science at trials in America in the past, probably all of our decades as a country, certainly the last recent ones that we thought that science had all wrapped up. And fiber analysis can be very iffy, hair analysis can be iffy. 

And so the idea of setting a precedent of some kind where the defense is able to be like, no, the prosecution can't have all the hairs they want, we're going to sandbag them. We're going to give them one fucking hair and we'll see how they like that. I'm not averse to that, but at this moment it's not being deployed, it's a tactic that we only get to see deployed by a defendant who has the means to do it and therefore it's not meaningfully affecting any of the people who are maybe getting railroaded by false forensic evidence out there in the world.

Mike: Anything you put this much of a magnifying glass over, you're going to find faults. And it's just, who gets a magnifying glass over their case, basically. 

Sarah: So the solution is for everyone to be constantly surveilling each other all the time, oh wait already doing it and it's not working, what now? 

Mike: Panopticon bring it. Yeah.

Sarah: It's called Tik Tok. Mike, that's a weird way to pronounce the word. This is our beginning of the trial. We are off to see the wizard, we're skipping off toward the Emerald city. And we are, from moment one, finding ways to complicate matters and contest the proceedings. And after a lot of work and after questioning an expert and kind of putting their back into it, Marcia is able to ensure that they get at least 40 hairs, but not more than a hundred.

Mike: Coming through, 40 hairs. It's the little victories. I guess maybe my final thought is that like, this is such a fascinating trial because it's one where the defense is able to do what I think the prosecution normally is the side best able to do, which is cause to where the other side out. Cause like they're getting their hairs, but at what cost? It's been an entire day, that's a day that you lost getting your hairs.

Mike: And the place that sells salads closes at 11, you got to hurry.