You're Wrong About - The O.J. Simpson Trial: Runaway Grand Jury

Episode Date: August 23, 2021

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 panelThe first day of 'prelims'Support us:Hear bonus episodes on PatreonDonate on PaypalBuy stickers, magnets, T-shirts and moreWhere else to find us: Sarah's other show, You Are Good Mike's other show, Maintenance PhaseSupport the show

Yeah, you just want to believe what he's saying, and like I trust anyone who's like is sort of very tiredly conveying ideas while they're eating some soup. Welcome to You're Wrong About, the podcast that lives in your guesthouse but never makes it weird. Aw. It's like a little throwback. We try not to make it weird. We wish you wouldn't talk during the Packers game.

I am Michael Hobbs. I am Sarah Marshall. And if you want to support the show, we are on Patreon at patreon.com slash You're Wrong About. And you can also find t-shirts and little PayPal links and other ways to support us in the description. Cute little denownment shirts. Denownment shirts.

And today we are continuing our March Through History, the OJ Simpson trial. Yeah, we're continuing our like pub crawl through history. It's been so long since we've done a normal episode that I'm like, how do I do this again? Like what are the first three minutes of the show? I'm like, who says the tagline if the other person is talking about 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. Well, I believe where we last left Mr. Simpson, he was putting together his dream team. So we met Effley Bailey, who used to be hot. It's the most important detail from that episode. 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. Nailed it. The first good tweet.

Wow. The first and last. So all that is to say is that light, guilt or innocence, hotness is more subjective than some might imagine. Yes. 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.

Yeah. Who is Alan Dershowitz? Oh, man. Mike. He's like the wrongest man of the 21st century, like name a public controversy. And he has been like loudly wrong about it. This whole show is a letter to him. Yeah.

We're finally realizing what this has all been for. Yes. I mean, I just finished his abysmal book on cancel culture that just came out. The things you do for us. What is this? Yeah. Tell me what it, because like I was going to talk and well in a minute, talk about a book that he was just coming out with in 1994, which is the abuse excuse.

Right. Which is like, A, has a really nonsensical argument and B, in a way that is perhaps even more insulting to the reader is just visibly lazy. Like 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. And it also, it seems like he's had this downward trajectory where he used to be like relatively well regarded or at least not sort of a national joke.

But the last five, 10 years, he's just descended into Trumpist, racist, weird, like dunking on random college students thing. I mean, I don't know if he's on Twitter, but he definitely has Twitter brain. Yeah. And the, the abuse excuse, the book he came out with in 94. Can I just review a little bit of this, this shinily beautiful opening? Okay. 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.

Man, the man can write a title paragraph. That's the thing. I feel like something that lawyers trained to be able to do is to just like 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, like if they encounter something that feels structurally smart, will be like, well, that must be right. So sure.

If you're an above average writer, you can get away with some unbelievably bad thinking. Okay. Paragraph two. Among the recent excuses that have been accepted by at least some jurors have been battered woman 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. Oh, God. It's widespread acceptance is dangerous to the very tenants of democracy, which presuppose personal accountability for choices and actions. Slippery slope nonsense.

And then there's a footnote, and this is honestly my favorite part, quote, I see this trend is very disturbing. It brought down the Greek Democratic experiment. It's not dangerous. When Roger L. Conant quoted in the American Bar Association Journal, he's such a fucking snowflake. A couple of people are getting reduced sentences, and somehow he like weaves this little web into this could be the downfall of democracy and the end of Rome.

And it's also what's funniest to me about this. It's like, Alan, you're a defense attorney. Like, why are you like 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 won't avail yourself of at some point if you haven't already? Yeah. Okay. So the basic argument he's making is things are worse.

Things are getting worse. And like people will always buy that argument. It'll always feel true like people like never I am convinced in the history of time or at least civilization have adults stood around being like things are improving since I was a child. Also, those those arguments always lead to electing somebody who promises that they can make it like it was. Yeah.

And that's, you know, and we've seen this all around us. And we've seen this on the show again and again, this concept where, you know, if you want to not question your own behaviors, like convince yourself of an argument where you're the victim and where you can do anything. And you can do this in response to like something pretty mild happening, like this idea that some people are getting acquitted while 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 abuses mitigating. And it's like, oh my God, the jurors debated the verdict. This is their job. This is awful. I love that he included rape trauma syndrome in there. Like the idea that it's like far out to suggest that rape might be traumatic. Exactly. And that like that might affect your behavior in other ways.

Like that actually seems kind of reasonable and like in line with what we know about human behavior and like an entire body of research. Yeah. I feel as if there's something very telling about the fact that as we, you know, 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 70s and 80s. And there's such incredible resistance to this. And in this like Dershowitz response I see too, like we know that his ex-wife alleged

very serious abuse and said that he had abused her in really awful ways. Seems relevant. It seems relevant. And in the arguments that people get really triggered by, honestly, you can see where their baggage is a lot of the time. Yeah. God. 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, you know, cascade of news of the past few years is historically a like charmingly boring and so horrific PBS talk show host who also got fired because of I believe workplace sexual harassment. Yeah. Okay.

And we're going to watch for like two minutes. Okay. Three, two, one, go. Yes. The language of the day today, and that's why I've written this book called 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 a lay of 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 he said that we had a happy, we had a good relationship, this was

just a, we had our ups and downs as any healthy normal relationship did. Well this isn't healthy to have the police come to your house. And the media caused it, and the police caused it, and everybody else caused it, except we can take care of it ourselves. Look we have another analogy. We had a terrific judge, David I'm sure will agree with me, one of the greatest judges in New York history, Saul Wackler, 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, he was a perfect gentleman and a great judge, he was putting on a cowboy hat, stalking a woman, writing threatening letters, and ends up in jail. Now thank God it didn't escalate into physical violence, but there is an analogy in the sense that nobody who knew him believed it, in that case there were no dark rumors I think circulating in the newsrooms. No. 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. Don't you think things have changed a little bit, I mean again to go back to the journalistic angle that if something like this were to happen today to a celebrity like O.J. Simpson, it wouldn't be on page 20, and that Hertz would have dropped him, I mean the consciousness is much higher now than it was back in whatever year that was, 1989. If something like this, meaning one of the initial less serious people in the police

came when the New Year's Day came around. No I don't, because we have a city councilman who was arrested for battering recently, we have the Chief Judge of New York State, we have another judge who was in jail, a week from now if something like that happened, I believe that it would change things, wouldn't it? Okay, so Alan Dershowitz is citing an example of a recent case involving a revered judge in New York named Saul Wachtler 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 like, this is a serious crime, there are no good guys, any guy can do this, we haven't sufficiently stigmatized domestic abuse, because essentially the opposite of what his book is arguing. Yeah, it's weird to be defending somebody who confirmantly committed domestic abuse while saying we should have stigmatized it. Yeah, well here's the thing Mike, he isn't on the defense team yet, he will join it in about 24 hours. Oh, so this is pre-OJ Alan.

But this is because Tim appearing in his capacity as a freelance legal commentator. Oh, see that's your problem right there, you can't go around saying stuff like abuse is bad because you might have to get a job. The next day. Yeah, and then 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. Women are arguing that things have changed now, and they're saying like this would get

more publicity now, like we would be talking about it, it would be taken more seriously. I don't know. And Susan Herman, who looks like Katarina Witt, dressed as Carmen Sandiego, which is the highest compliment I can give anyone, just has this look of like, 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 100% sure I agree with your police work there, Lou. It's also, isn't Alan's argument like he's 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. I mean, like that moment really gave me pause because I was like, this is someone who has an alleged 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, you know, 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, you know, give some time to the idea that Nicole had really been abusing OJ, like she had been using whatever power they could imagine her to have over him and that he was the one who was like 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 audiobooks about the Trump White House and Alan Dershowitz, of course, was important to both of these stories. And I don't know, I just, I wonder what you think of this. So you can draw a path from, you know, what happened in the OJ Simpson trial, which is basically from the beginning, like a lot of his lawyers being like, okay, you look guilty, like we're pretty sure you're guilty. So like, it would be fine if you pled to diminish capacity, or we're 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 like we can appeal to people emotionally, we can get you out in a few years, like 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 anymore than Trump can believe that he's done any of the things that he's done that we all saw him do. Like we've talked also in previous episodes of this, this OJ series about this concept of narcissism, right, and how this idea that like someone who is a narcissist is like in

control of their malignancy, and is like, you know, like sort of a smart, interesting vampire, as opposed to my, my feeling again, based on my personal experiences over the years that like narcissism, I think is something that like you can't control and you aren't 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.

Right. 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. Right. Yeah. And just the parallels between OJ and Trump in that way of like his, you know, lawyers, like on both sides, lawyers trying to prep their, their defendant and the defendant being like, no, no, no, like the process of preparing for this would mean me having thoughts that

will surely destroy me. And it's like, of course, the people who, who are afraid of their own thoughts are the ones who hurt other people the most sometimes. Right. So how does Alan end up representing OJ? So this is a great story. And I, there's also something, I don't know, kind of, I got inevitable, honestly, about the fact that as we have for, since the start of the show, I'm using Jeffrey Tubin's The

Run of His Life as a source, Jeffrey Tubin, who we learned less than a year ago, I think, that he took his wiener out in a New Yorker Zoom meeting. And I was not going to add that, but here it is. Fun fact. I just feel like it's necessary context at this point. It's like, we're talking about a, like we're reading a lawyer with a shady history, talking about another lawyer with a shadier history. It's just like, all right.

Yeah. The story is like all dirtbags all the way down. I remember the 90s. Yeah. But this is also like such a fabulous burn. I have to give it to him. This is Jeffrey Tubin'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. Ooh. His lust for publicity has a manic quality, as if the bookish Yeshiva boy from Brooklyn still cannot believe that others care what he thinks. I love that. I mean, people like this, people in professions who are chasing media more than they're chasing achievement in their own career.

Client's dot, dot, dot question mark. Yeah. This is like the beginning of a lot of rise and fall stories. So Alan Dershowitz in 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, Larry and a bobbit didn't serve time in prison.

No one is going to prison ever again. So, okay, so here's an excerpt from Tubin's book. Dershowitz's comments irritate a Shapiro when they got back to him. He told a friend, how can we shut that guy up? After a pause, he said half jokingly, I guess we'll have to hire him. Oh my God. And the day after Dershowitz appeared on Charlie Rose, Robert Shapiro called Alan Dershowitz and invited him to join the defense team.

So they just did it to neutralize him from talking trash about O.J. publicly? Yeah. I mean, 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 some times. Okay. 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 also, I think, going on this defense lawyer shopping spree at this time. Right. They're like, we got to get a Flea Bailey. Who else is 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. Oh my God.

But yeah, I think it also makes sense that you're staring down the barrel of a pretty long trial. Right. They don't know how long it's going to be, but you can imagine it'll drag. They're certainly going to contest everything they can and that strikes you stuff out. Better to have Alan Dershowitz on your side than working against you and saying a bunch of stuff in the media every night. Yeah.

Than telling a sexual harasser negative things about your client every day. Yeah. And I think this 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. Tuben writes, no law or even any ethical rule prevented Dershowitz from accepting the assignment.

Shamelessness is a moral rather than a legal concept. Nice. Is he just a moral vacuum at this time? Is this kind of how he's known in the industry? Well, and I think also he early on had a tendency to defend people who already were news. He defended Leona Helmsley. He defended Klaus von Bülow on appeal. And he can say that's chasing the spotlight, which I think it certainly was, but it's also

establishing something of a specialty. 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 recused by basically saying the grand jury has already been so contaminated by the advanced press coverage of our client that like it's already too late.

They already know too much. Let's just go straight to the preliminary hearing. Oh, can they do that? I mean, this is what people say at the time is like, this is unprecedented. You've never seen anything like this before. But also the prosecution has to admit that like the case itself is unprecedented. And so it does make a certain kind of sense because 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 Cato Kalin, who's playing three dimensional chess with her. And now she's moving forward with her witnesses. So this is basically Marcia investigating the case herself because she's taken it out of the hands of the LAPD and she's now impaneled a grand jury, which basically means like she is doing her own fact finding as the prosecutor's office in LA. It's actually, 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 is 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 write him like, let's just do that because if they don't want to investigate this, then we will. Right. So she interviews Alan 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 Metzaluna 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 in 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 Vicente and comes to an intersection. She accelerates to try and get through a light before it changes. 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 O.J. Simpson. After that, he drives away. She says that she also actually notices the license plate of the white car as well. I need to know if she got her salad though. 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. So the Kato was not in the car. This was not the trip to McDonald's. 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 Brand Simpson has been murdered by someone. And I can see, you know, 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? 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. You want to feel special. I feel like there's this thing too that kind of gets at why this was such a media phenomenon where like people want to be close to tragedy, like we want to be tangential to tragedy in some way. We want to be grazed by it, but not hurt by it. And also spectacle.

Yes. Anything involving celebrities, people are going to edge their way toward. Right. And both of these things are happening here. And like 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's going to testify and she

sells an interview to hard copy. Oh, okay. 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 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. Yeah. This is why you don't have famous high profile trials. This is why no one famous should commit a murder. The system can't handle you. It can't even handle anything. Also that, but like all of the incentives just get completely warped 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. It's hard enough. I mean, 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 know, you aim for a hundred percent vaccination rate.

Oh, God. And you're happy if you've got 93. And I'm like, oh, Sarah, I got to say, I don't really fault Joe Shively in this. This doesn't seem opportunistic. Like I don't think it's opportunistic to like be courted by a bunch of news outlets who are promising you a ton of money for like 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. People like money.

People need money. I would even hazard. Well, and also like most people haven't testified in front of a grand jury in their lives. Yeah. Right. Like Jill was 33 when this happened. I'm 33. I have had no interaction with the legal system.

You know, I've gotten tickets. I got called in for jury duty once and they didn't need me that day. The end. Like I have no idea how any of this works. Yeah. It's a testament to how boring and confusing the legal system is that Americans spend like seven hours a day watching legal dramas and we still really have no functional idea, most of us, like 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. Like we don't know that stuff. Right. We just know that if you kind of pressure someone on the witness stand, they will confess to a murder every piece. 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 of production companies about to buy it for $250,000. And I want you to start it. But before I get the money, I just 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 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. Yeah, Jill does like money. Yeah. You know, again, like speaking as a random layperson, 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 gets testified about.

But it also does suggest that she could have made this whole thing up, like that this could be another griff. Yeah. So like in this case, where we appear to have an abundance of witnesses, like why use her? Why bother? Why compromise the case that way? There's so much other stuff. Yeah.

So Jeffrey Tubin, who loves to Monday morning quarterback other lawyers decisions, he says that Marsha recused Jill in a fit of peak and that it was a miscalculation and a bad idea and he wouldn't have done that. And Marsha and her book is like, well, Jeffrey didn't know about the screenplay scam thing. So like. Right. Yeah. And so Marsha basically in order to just credit Jill's testimony has to bring her back in

the next day and then cross examine her. Oh, no. And then information comes in and she has to flip flop and then cross examine her own witness. 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. Yeah. And I mean, I feel like another interesting thing about the legacy of this trial is that we have this completely uncharacteristic functioning of the defense where like, you know, no expense spared hire every lawyer. You have as many resources, 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 like 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. Like, I don't know, I find it, it's interesting to think about like, how much did the whole legal system successfully camouflage continuing endemic problems in prosecutors' offices because they had had this kind of national literacy making depiction of what they did is like, you know, where you show up and do your best and are very moral about it and you just get screwed every day. Well, I mean, this is what you get from a system that's built around winning and not

built around seeking truth. Right. So, it's an ordinary system that was actually trying to find out what happened. You'd be like, oh, we have this information, oh, next day we find out some new information and 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.

Right. So, this is an example of the system working, but I also like, I can't see prosecutors doing this very often. Right. I mean, the sheer number of convictions that involve some kind of jailhouse and formant testimony that essentially boils down to like, yeah, he told me that he did a 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 like insist on what they're doing or who they are, then like, maybe it's not entirely true, you know, like this thing where, like I think, certainly it got said a lot in this trial, and I think that this is kind of a standard lawyerism, this idea like, 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? Yeah, yeah, yeah.

You know? It's like Shane Dawson saying he's an empath to steal an observation from you. It is like that. Thank you. So, we have this problem with Joe Shively, but like no big deal. We have witnesses coming out of our ears at this point. Joe Shively continues and interviews Nicole's ex, Keith, who is able to testify about O.J. 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 O.J. that we talk so much about. So this is, I think, Wednesday afternoon, 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. This was the interview that 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.

Mike, you're exaggerating. It was 32 minutes long. Fake news. So, she listens to that. She's like, cool. Then on Thursday, she keeps, like every time Marsha 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 O.J. was attempting to break in the door. Oh, the one where Cato heard everything. Yes. Cato is there and is kind of doing his people-pleasing thing and is the one who repairs the door later on. And so this is the call, like 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. She says, it's O.J. Simpson. I think you know his record. To me, there's a sound of fear and also just exhaustion in 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, 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? And which makes him look unbelievably guilty. I mean, 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 O.J. in 1993, has copies of the 911 tapes. 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, Gil Garcetti has no control over this, like this is just happening entirely outside of her office. And once again, she's like, OK, well, let's now adjust to another thing that just happened

on TV right now. Right. It's hard to prosecute a case that there's bottomless appetite for every single piece of minutiae. Right. And like, how do you even, I mean, like the whole system of what trials are was obviously invented before we had a media landscape. Yeah.

Anything like this. We could actually be able to control what information people encountered. And like, that was clearly already kind of impossible by 1994 and like, I mean, how much impossible or does it have to be today? Right. And so, meanwhile, back at the defense team, they have already been hoping to get the Grand Jury recuse based on the fact that like, 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 Tubin, 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 like, do we have sufficient evidence to indict this person?

Like, 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. I was not aware previously of how bonkers this entire process was because it's not just

like a normal ass law and order. Someone gets killed, cops investigate, they find a suspect, they go to trial. It's like all of this stuff is kind of happening at once, like the investigation and the trial. And there's already turf war stuff between the prosecutor and the cops. This is not a normal process. They're not like walking four in a row down a hallway all laughing at each other collegially, like in the law and order opening credits. Which I've never seen.

A fish can love a bird, monsieur, but where would they live? Is that from law and order? No, it's from ever after. Wow. But like, one of the interesting things about the legal system is that it kind of defies narrativizing in this way of like, I mean, it's actually, it feels like baseball to me, they're like, 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 like, nothing. I'm not going to defend baseball on this. And so at this point, you know, there's this sense of enmity, I'm sure, because the defense team is already like bigger, bump chaser 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? I mean, 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, like, let's also,

we're done with this grand jury, like the well has been poisoned. We can't continue. Wait, really? That's it? 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. Yeah. And if one of them knows them, like, how do you know they all don't know? So the whole thing, like somebody peed in the backyard pool and they're just everybody out, we're going to start over again.

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 we, and the defense can cross examine people. This is, this is nuts. No wonder it was such a shit show. Right. And like, nobody knows what the hell they're doing. It's like, I feel like it's like, you show up every day to do the job that you like know how to do, which is like already difficult.

You're already getting thrown a lot of curveballs. 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. Right. The defense are more limber because like these are men who are pretty accustomed to trial by media, but like as a self-identified methodology queen, if you, if you were Marsha, like, what would this be like for you? It just seems like this should go back to the cops now to just like 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, you know, people like Jill who are like somewhat unreliable, take them out of it, but just like 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 like half baked fruit pie. I like that it's a fruit pie. That's the only kind I could think of.

Like I feel like they're trying to stop the media from being so invasive and like deciding the story by being like, no, we're doing it. We're telling the story. We're doing it right now. Yeah. But like the media is still seeping in through every crack and and and affecting things. So I don't know. I feel like my lesson here is that like 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. Also, as we discussed in our Nancy Grace episodes, celebrity trials are not normal trials. I just feel like you need to have like a completely different justice system for these kinds of cases, because this like fake thing of like the jurors aren't going to find out about the 911 call, like unless they're locked in like a room in space, they're going to find out about this stuff. Right.

Like what is the carry that doesn't find out? It's like you come home, you speak to no one. Yeah. 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, la. Yeah, normal trials are not on the cover of grocery store tabloids constantly. So you don't have to have these arcane rules. Yeah.

Like a quote unquote jury of your peers is just a fundamental contradiction in a case like this. This is one of the most reliable things about people. Like we gossip, we share information, we warp information by sharing it. Like 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. Totally. If there's one thing we've learned from doing this 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. If I was on a jury of some person who was famous and even if it was someone like I didn't know, like it was some big K-pop star or something, I would probably Google them. Yeah. Like I don't know if I could go home at night and like resist the impulse to actually find out what their deal was.

And then I also feel like, I mean, this is, you know, getting ahead of ourselves. But like this trial was nine months long. It defies the human attentions fan to expect people to be watching a trial that many at. Like, yeah, I tried my best and worked really hard to be a good juror. Like my mind would wander away like a puppy. 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 like hex that gets put on your family.

It is. And so, yeah, it's just like we are at the start of an untenable journey and it's already looking untenable. And so we begin the preliminary hearing on June 30th, 1994, 10 days after Alan Dershowitz's Charlie Rose appearance. I promise to you that I would advance this forward in time. And I did. Wow, we're moving at warp speed now.

10 days. Look at us. But I thought that we could end by looking at just the opening of the prelims because this is the aside from the arraignment, which has been on TV and the Bronco chase, which was as much on TV as anything can possibly be. This is the start of the public's viewing really of the trial. Oh, yeah. This is our first chance to watch the legal system in action with O.K.

Simpson and his team inside of it, aside from just a guilty plea. Three, two, one, 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 hair. Ms. Clark, how much hair do the people need? Well, your honor, hair samples, as I'm sure the defense must be aware,

in order to be effectively compared with an evidence sample recovered from a crime scene, has to be taken from each area of the suspect's head. And that means that a minimum of five to ten hairs from each area which usually amounts to about a hundred hairs. And I've never seen a court attempt to restrict that because that is obviously a matter that a criminalist would have to determine based on what he can recover. I'm already bored. Oh, my God. This is what we talk about with rich people justice, right?

That like you just fight every single technical thing. Exactly, because you can. Yeah. I mean, well, and so what just happened here? Can you tell us what we just watched? So it's like 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 Marsh is like, we want to get a hundred hairs as many hairs as possible. And then Shapir is like, no, that's bad because of reasons and you should have no hairs.

No, they're offering a single hair. They're like, we're going to give you one hair. And then God, this probably goes on for like minutes. Yeah, I think it's so hilarious that the judge they're arguing this before. A 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. Cute. And it's like, why would you think that? Yeah, no. So what do they decide, you know?

Well, essentially, the judge splits the difference and is like, OK, you can have a maximum of 10 hairs. And Marsh is like, are you kidding me? Like this is we do this all the time. Like this is protocol. Like they need the hairs. Yeah. And, you know, speaking of trials as a broader phenomenon, like 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, you know, fiber analysis can be very iffy. Hair analysis can be iffy. Yeah. And so the idea of kind 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.

Like, I'm not averse to that. But like in this moment, it's not being deployed towards any. Like 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 like not meaningfully affecting any of the people who are maybe getting row-roaded by false forensic evidence out there in the world. Yeah. I mean, anything you put this much of a magnifying glass over, you're going to find faults. It's just who gets a magnifying glass over their case, basically.

Yeah. So the solution is for everyone to be constantly surveilling each other all the time. Oh, wait, we're already doing it and it's not working. What now? Yeah, panopticon. Bring it. Let's have that. It's called TikTok, Mike. That's a weird way to pronounce the word TikTok. But yeah, this is how this is our like beginning of the trial. We are off to see the wizard.

We're skipping off toward the Emerald City. And we are like, for a 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 100. Coming through 40 hairs.

It's a little victories. I guess it's like 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 just to wear the other side out. Yeah. Because like they're getting their hairs, but at what cost? It's been an entire day. Like that's a day that you lost getting your hair.

And the place that sells salads closes at 11.