Remembering Jill Shively
REMEMBER JILL SHIVELY?
Among the items of evidence concerning the Bundy crimes, the testimony of Jill Shively was most valuable in understanding the situation. She is the only person who saw, and could identify, Simpson during the period between the time Kato last saw him at 9:45 and Park saw the "shadowy figure" cross the drive at Rockingham at 10:55. The account she gives is entirely consistent with other things known about the crime, and also contains other details that we would not have known about without her testimony.
She was brought by the prosecutors to the Grand Jury nine days after the murders to tell what she had seen. She was interviewed on the TV magazine, "HardCopy" that night, and two days later she was brought back before the Grand Jury whereupon prosecutor Marcia Clark denounced her testimony as "unreliable," and she was never heard from later. It is commonly believed that there was something so wrong with her story that the prosecutors did not believe it, and that she would be an embarrassment to the prosecution if she were called by them.
MY ACCESS TO JILL SHIVELY: In December, 1997 I posted articles to the alt.fan.oj-simpson newsgroup on the internet expressing the idea that Shively's story was believable, except for her mention of the time when it happened. I invented a reason to explain how the story could be so right, but the time be off by about ten minutes; that concoction of mine later proved to be wrong. In the Spring of 1998, some prankster pretending to represent Shively contacted a frequent poster here, Robert C. Miller, and threatened him with a lawsuit because he had quoted a passage about Shively from Bosco's book (ridiculous as such a threat might be.) Someone (apparently a friend of Miller's) sent a letter to Shively's home raising hell about her threat. Since Shively had no part in the threat, did not know about it, and did not know who Robert C. Miller was, she was perplexed. She did a search for her name in usenet articles containing "Jill Shively." In the course of that she found several, and among them mine was the most friendly. She sent me an e-mail in mid-June, 1998 declaring her innocence in the Miller matter, and claiming that she had been defamed in the backwash of the Simpson trial. I was interested.
I made e-mail inquiries of several people: Of Robert C. Miller, concerning his experience in this, and of several regulars in this newsgroup whose opinion I respect, and whose discretion I am confident about. Two of the most important were Ron Egan and Thomas Jabine. Others who do not post but have an interest in the topic were also involved. Miller replied that he had been threatened by a person claiming to represent Shively. He doubted that my new e-mail correspondent was who she claimed, and urged caution. My other contacts similarly expressed skepticism in this contact's genuineness, and also counseled caution.
One of the members of our little group is able to determine an e-mail sender's geographical location from the header, and so I forwarded the original message to him, saying that the correspondent claimed to be using a computer at work in downtown Los Angeles. He quickly replied that the claim checked out. I raised the question of legitimacy with Shively, and she replied with personal details that others in the group recognized in things they had read about her. (Not a great deal is available.) I raised the issue that she had a reputation as a habitual litigant, and she forcefully denied it, claiming that before the Simpson matter she had never been a plaintiff in a civil case in her life. "Check it out," she insisted. I sent her my home telephone number, and she called me; she gave me her home phone number, and over the next few weeks I called her, however the most important contact has been via e-mail.
I and the other members of this group came to believe that this person really was the Grand Jury witness in the Simpson trial. We then were interested in several issues: 1) Did she stand behind the Grand Jury testimony? What reservations did she have? 2) How could she account for the fact that her time of sighting Simpson fit so awkwardly with other facts in the evidence, 3) Since her report was the most important single element in the case against Simpson, how could she account for the fact that she was dismissed so quickly, and 4) How did she respond to the charges made against her in Bosco's book?
Over the next few weeks, she addressed all of these questions, and gave us a fascinating glimpse into what it was like in those wild and woolly days to be a Simpson witness. In the course of these letters, I became a considerable fan of hers.
SHIVELY'S GRAND JURY ACCOUNT: The incident that Shively describes occurred at the intersection of San Vicente and Bundy in Brentwood at ABOUT 10:45 p.m. on June 12, 1994. The intersection is on the most direct route from the Bundy crime scene to Simpson's residence, and is 1/4 mile (2-1/2 blocks) north of Nicole's condo. A map of the intersection is shown below:
San Vicente is a divided street with a concrete-curb bordered grassy median in which trees are occasionally planted. It is two or three car lengths wide. The eastbound and westbound lanes each have two traffic lanes and one parking lane, though the parking lane near intersections is appropriated for turning lanes. Bundy is a north-south street with two traffic lanes in each direction that intersects. There is a dogleg to the west in Bundy at the north side of San Vicente. The place is well illuminated by streetlights and nearby businesses, and the intersection is controlled by traffic signals. It is the most difficult, and potentially the most time-consuming intersection to get through on the entire trip from Bundy to Rockingham.
Shively testified on the morning of June 21, 1994 to Marcia Clark's questioning. She said that she had lived in the neighborhood for 8 years, and that her home is 3 miles from the intersection (by the map, it is 3-1/2). She left home to go to the market and was conscious that the time was 10:45 because she had to hurry to get to the market before it closed at 11:00. Traffic was light and she traveled at 40 or 45 mph to Bundy. She estimated the time from her home to the intersection to be "three to five minutes" (Using 3.5 miles and 45 mph, it would take about 4-1/2 minutes.)
As she approached Bundy, the signal for her was green, but a white Bronco traveling with its lights out came from the south on Bundy into the intersection, and Shively had to make an emergency application of her brakes and swerve to the right to avoid a collision; the Bronco also swerved. The Bronco came to a stop on Bundy in the middle of the median width. It was unable to proceed because a 2-door light gray Nissan in the westbound lanes of San Vicente had also stopped, and was blocking his way. The man in the Bronco "started yelling at the guy in the Nissan to move his car." Thereupon began an "After you Alfonse" confusion between the drivers of the Bronco and the Nissan. Just as the Bronco tried to get around the front of the Nissan, it pulled forward. Then the Bronco backed up and tried to get around the back of the Nissan, and the Nissan backed up. After three of these false starts, the Bronco driver made a maneuver implying that he was going to drive up on the grassy median and completely outflank the Nissan, no matter what it did, but at that moment the Nissan drove away. The Bronco then proceeded north across San Vicente and disappeared up Bundy to the north. Shively testified, "He was going fast because you could hear like the engine was kind of zooming, 'Whoom, Whoom.' He was really moving." Shively estimates that the time the Bronco was in the intersection to be about a minute.
Of the Nissan driver, Shively told the Grand Jury, "He looked angry at first [before Simpson started yelling at him], but then he looked scared, because someone -- he was like a maniac, someone gone crazy or something..." During the time when he was angry, the Nissan driver did not show an inclination to move his car, but after he became frightened, he began the frantic, but initially unsuccessful, maneuvers to get out of the Bronco's way.
The following exchange then occurred:
CLARK: So, were you able to see the driver [of the Bronco] very clearly?
SHIVELY: I recognized him right away.
CLARK: And, who was he?
SHIVELY: I saw O. J. Simpson.
She went on to explain that Simpson was a familiar figure around the neighborhood. Shively had seen and heard him "at the park, different shops, the post office. He was a common figure there in [Brentwood] Village." Early in the encounter at the intersection, Simpson had "turned around [in his seat] and glared at me [through his open driver's window] after he had almost hit me, and then I -- then he started yelling at the guy in the Nissan to move his car." In doing this, Simpson leaned part way out his window. From a position 15 or 20 feet from Simpson, Shively both made eye contact with Simpson when he glared at her, and clearly heard him yelling at the other driver. She said, "I knew right away it was 100 percent" Simpson.
After the incident Shively continued on her errand, and after a period she estimates as another two minutes arrived at the market. The clock in her car said 10:52 then. The grand jurors had questions of their own: The driver of the gray Nissan had been a young (18 to 25), clean shaven, Caucasian male, a college student perhaps. (There is, in fact, a large warehouse-type liquor store a few blocks farther on San Vicente for the Nissan driver that is frequented by older UCLA students.) Simpson had been wearing dark clothing, but Shively thought the sleeves were short because she saw bare arms. She did not see that Simpson was wearing gloves. The closest distance between Shively's car and the Bronco during the near-collision was less than three feet.
SHIVELY'S INTERPRETATION: At the time these events unfolded -- on June 12th and 13th, 1994 -- Jill had her own interpretation of what she had seen. In her letters to us, she says that immediately when she was in the incident with Simpson, she interpreted that Simpson was drunk. "Who would drive like that otherwise?" she asked. At that moment, it must have been hard enough to believe the events that are transpiring before your eyes, much less to guess that you are about to become part of a celebrated murder case. But, the next morning Shively heard about the Bundy murders, remembered the incident at Bundy and San Vicente, and revised her opinion of what she had seen. At that point, she told Marcia Clark, "after I knew about the murders. I stated that he could have just been at Nic's home to say good-bye [before his trip to Chicago] and walked into all of [that] blood. And that he was afraid, because the first person they would suspect would be him." Whereupon, Jill says, Marcia "yelled at me not to assume." (Shively mentions in the same passage that she told Lange and Vannatter that she made a mental note of Simpson's license number at the time of the incident -- 3CZW 788 -- and that checked out.)
An eyewitness's interpretation can be as valuable as the details that they relate. Often a real life experience -- especially an unusual one -- involves details that are not consciously realized, or can not rise to the level of linguistic expression, but they are nonetheless perceived. And they find their expression in the interpretation that the witness gives to what he has seen. In this way, Shively's interpretation that what she saw was Simpson fleeing from the discovery of Nicole's corpse after someone else had murdered her has value. She saw that crazy-acting man herself, and after she learned that Nicole had been murdered, that is what she thought she was seeing. (To this day, Shively has no definite opinion whether Simpson killed those people or not. But, she knows that she saw what she saw.)
HARDCOPY TV INTERVIEW Shively had been hounded by the media for an interview in the days before her Grand Jury appearance, and was so confused that she contacted the DA's office for guidance. She was assured by the producer of the HardCopy program and by the DA's Witness Coordinator that an interview for money would not be improper. She agreed to do the HardCopy interview for $5,000, and was interviewed on the afternoon of Monday, June 20th. The program aired on the night of her appearance, Tuesday, June 21st. All of the media that did not get her exclusive story (everybody else) assailed the deal, claiming that by taking money, Shively had revealed herself as a witness with pecuniary interests, and hence of doubtful truthfulness. Most of the public, however, is comfortable with the concept that if you have something of value to someone else it is usually not improper to sell it to them, and it is often wise to do so. Only the losing media and the attorneys were outraged about Shively's interview.
SECOND GRAND JURY APPEARANCE. The DA's office (Clark and Dep. DA David Conn) met with Shively on the following day, Wednesday, June 22. They discussed the HardCopy interview, but were more interested in her earlier discussion with them concerning her prior statements about her observations of Simpson. Shively had told them on the 21st, in an interview just before her first grand jury appearance, that she had told only her mother about what she had seen on the night of the 12th, and about her pending Grand Jury appearance, but in fact she had told friends, co-workers, and the HardCopy interviewer by that time. Shively claimed that she had been confused by their question, nervous at the prospect of testifying, and tired after a sleepless week. She said that she had often been asked "Who was the first person you discussed your Simpson encounter with," and that was her mother. When the DAs asked her who she had discussed this with, the believed she was answering the familiar question.
Shively reappeared before the Grand Jury on Thursday, June 23, as the first witness of the day. She was asked about her original police report: She had called police on Tuesday, the 14th, and had been interviewed (by Vannatter) on the 15th. Marcia Clark asked her about the HardCopy interview and the $5,000 she expected to get for that, but did not indicate that she thought it was questionable. Then Clark engaged Shively in a rather detailed review of who she had told about her experience at Bundy and San Vicente, and elicited the fact that she had mis-stated this in an interview with prosecutors on Tuesday. Jill was very forthright in answering these obviously embarrassing questions.
Shively was excused, and Marcia Clark addressed the Grand Jury, "Ladies and Gentlemen of this jury. Because it is our duty as prosecutors to present only that evidence in which we are 110 percent confident as to its truthfulness and reliability, I must now ask you to completely disregard the statements given and the testimony given by Jill Shively in this case. Although her failure to truthfully answer a question posed to her during an interview cannot subject her to perjury charges, given the fact that the suspect does not have an attorney present to cross-examine her at this proceeding and that at this point in time we have no way to independently corroborate her testimony, I cannot allow her to be part of this case at this time, now that she has proven to be untruthful as to any aspect of her statement. Please completely disregard the testimony of Jill Shively."
So, it is commonly believed that Shively was bounced from the prosecution case because she had sold her story to HardCopy, but in fact Marcia Clark told the Grand Jury that Shively was unreliable because she had made a statement to prosecutors that was untrue. And, the untrue statement did not have anything to do with Shively's observations on the night of the crime, and it was not a statement made to the Grand Jury. As far as can be determined today -- four years later -- there never has been shown to be any inconsistency or contradiction between Shively's account and other evidence.
If we take Marcia Clark at face value, then the dismissal of Shively was an act of pique because Shively had not been completely candid with Clark. And, a very expensive act of pique.
REAFFIRMATION: We asked Shively point blank if she would stand behind her Grand Jury testimony today. "Yes. I did see O.J. and the Bronco at that intersection that night. My clock in my car was off about 8 to 10 minutes, running fast a little..." Did she have any reservations? Only concerning her statements about the time of the event (see below.) These were ambiguous and misleading, but not false. They were presented as they were at the insistence of Marcia Clark, who imagined that would better serve the purpose of convicting Simpson. As to the rest, Shively says that she remembers it today (July, 1998) "like it was yesterday." And, their obvious interpretation is the correct interpretation.
THE TIMELINE: According to Marcia Clark's interpretation of the times Shively gave for various events, the Simpson sighting would have occurred at about 10:50. Apparently this agreed with Marcia's concept of events, wherein she thought that Simpson committed the crime, went right home, and ran into his house. With that scenario, leaving San Vicente and Bundy at 10:50 would put him at Rockingham at 10:55, and Park's sighting was at that time, too. Perfect.
But, other considerations (the Heidstra sighting, and time for other activities at Rockingham) make it more likely that the Shively sighting was as much as ten minutes earlier. We asked Shively about this, and she said that the clock in her car was fast by "8 to 10 minutes." She knew when she was in the Grand Jury that this was true, and she had explained the fact to Marcia Clark, but Clark liked the idea of a 10:52 arrival at Shively's destination, and so did not want Shively to mention the clock error. Marcia Clark told Shively before the Grand Jury appearance, "Your time is five minutes before Park's time and that is what I need and want; that is the time that will work. Thank you very much." Shively then did not want to rock the boat while she was in the Grand Jury room by volunteering about the clock error, and Marcia Clark did not ask. (In view of Marcia Clark's later speech in which she sanctimoniously denounced Shively for an inconsequential error, this deliberate misleading of the jury qualifies as a grotesque act of hypocrisy.)
One of our group objected that the car clock was not the main reference, Shively "left home at 10:45." according to the VCR, and got to the market just before it closed. The time seemed to be nailed down in three places. But, we went back and re-read the testimony carefully. She left home at 10:45 "because I wanted to get to the market before it closed." There is no transcript mention of a VCR or any other clock consulted as Shively left home. And, the time at the market was not determined by the market actually closing, or Shively seeing a clock in the market after she got there, but by looking at her car clock in the market parking lot. So, the only reference Shively explicitly consulted according to the transcript was the car clock, though there is the implication of another clock in "left home at 10:45."
We asked Shively to elaborate. She had the flu on that weekend and her mother was caring for her daughter. Shively had awakened in the evening, hungry since she had not eaten in a couple of the days, and determined then that she would have to hurry to get to the market before 11:00. This determination was made at some earlier (unknown) time than 10:45. Shively got dressed, went to the car, and there checked the time on her car clock. She did not report (perhaps she does not remember) what it said, but it caused her to hurry to the market and later led her to say that she left the house at 10:45. Furthermore, she told us of that consultation of the car clock when she left, it was a "little battery operated clock [she] had stuck on the dashboard" of her Volkswagen. From this, we believe it was not self-illuminated, would only be visible when she passed by streetlights, and even then would not be easy to read at night. This is, frankly, little better than no time reference at all, and it is the only mechanical reference in her whole account.
However, one member of our group was quick to point out that this only strengthened her overall credibility. He himself had been involved in traffic mishaps of the magnitude of this one, and he was so swept up in the events of the moment he never thought to look at the time. Like Shively, he would only be able to judge it by reconstruction. So, Shively does not know, and we do not expect her to know, exactly when the incident with Simpson occurred, other than it was somewhere around 10:45. And, a careful reading of the Grand Jury transcript does not show that she said anything that was strictly untrue about this.
BOSCO'S SPIN ON SHIVELY'S DISMISSAL: In his book, "A Problem of Evidence," (p. 8-9) Joseph Bosco describes an incident which may be the origin of the smear against Shively that endures yet. In this, Peter Bozanich -- Director of Branch and Area in the D.A.'s Office -- relates a story about coming home from dinner on the night the HardCopy interview was aired, with his wife, Dep. DA Pam Ferrero, when they found two frantic messages on the answering machine. Pam identified the voice as of Brian Patrick Clarke, Pam's former brother-in-law; that is, Pam's "ex-husband's sister was married to" Clarke. Bozanich characterizes Clarke: "This guy is an actor. He's a soap opera actor. He's on television a lot."
Pam called Brian, and in Bosco's account Brian had seen the HardCopy interview and told Pam, "Jill is not a jogger, she's two hundred pounds. She couldn't find her way to Brentwood. She's a liar. She's a felony probationer. She's got lawsuits going every place and she's not telling the truth. She has sued me; I've sued her, I've recovered..." Bozanich goes on to say that "This guy Brian is a real good looking guy, and she's a slob." Bozanich finishes by saying that he told Marcia Clark and Bill Hodgeman about the call the following day, and said that they "Checked her out," and dropped her as a witness thereupon. (Brian Patrick Clarke was also Shively's ex-boyfriend, and as would be discovered later, had, since 1986, known O.J. Simpson.)
The charges in Bosco's book cast Shively in a bad light of course, and several of them are testable. Of "felony probationer," Shively says that not only has she has not been convicted of a felony, she has not been charged, arrested, or even accused of a felony. Of the charge that she is a habitual litigant, she says that she was never a plaintiff before the time that charge was made. (She has, however been a plaintiff in two lawsuits since, claiming defamation of those who recklessly circulated false claims about her. It is not allowed to publish books that sell into the hundreds of thousands claiming that a person is a felon, when in fact they are not.) For anyone who has seen a TV interview of her, the claims that she is 200 pounds and a "slob" are obviously false -- in her book, Marcia Clark characterizes her as "... dressed neatly and conservatively for her testimony. She was articulate. She was confident.". (However, it may be true that Clarke is the prettier of the two.) And, since she had lived in the neighborhood for 8 years, and the Brentwood Village was one of the nearest commercial centers to her, the claim that she "couldn't find her way to Brentwood" is hyperbole. Finally, it might have been more accurate to have described Clarke as, "a sometimes actor and Hollywood hanger on." Shively says of him, "He has not worked in a long time." I get the impression from her letters that he mostly supports himself by his association with women.
So, apparently the DAs office did not, as generally believed, "check her out." If they had, they would have found that the charges that could be checked were false. The only charges that could not be checked were "She's a liar," and "She's not telling the truth." But, these are vague, and coming from one whose other charges are wrong, should have been set aside as not from a reliable source.
It is because Bosco circulated completely false and damaging rumors that so easily could have been checked that Shively currently has a defamation lawsuit in Los Angeles courts (case number BC179915, filed on 10/22/97, Jill Shively vs. Joseph Bosco, Peter Bozanich, Brian Patrick Clarke, Los Angeles County, and Viking Press, assigned to Department 44.) A trial date has not yet been set. Marcia Clark and others have given depositions in this already, and by the time it is done there may be enough documentation that we can come to a more substantiated understanding of what happened.
MARCIA CLARK'S VERSION: In her book, "Without a Doubt," Marcia Clark mentions the Shively incident. She recounts Shively's damning Tuesday morning account to the Grand Jury, the earlier discussion about Shively's not having discussed the matter with anyone but her mother, and Clark's shock when she heard about the HardCopy interview the night before.
When she got to her office Wednesday morning, she says, "On my desk was a fax from a television actor named Brian Patrick Clarke. He was claiming to have lost money to Shively and considered her a consummate liar.
"Normally, you take the imprecations of a disgruntled business partner with a grain of salt. But Clarke's story had a paper trail to back it up. According to Clarke, Jill had presented herself to him as a screen writer and asked him to read a script she had purportedly written. . She'd said a production company was about to buy it for $250,000, and she wanted Clarke to star in it. Before this bonanza arrived, though, Jill allegedly managed to borrow $6,000 from Clarke. And guess what Clarke later discovered? The script wasn't Shively's. In fact, it was the screenplay for a film in pre-production titled 'my Life,' which starred Michael Keaton and Nicole Kidman. Clarke filed a suit against Shively in small-claims court and won a judgment of $2,000." (Read this paragraph carefully, and note the lawyerly caution. Clark says that "Clarke's story had a paper trail to back it up"; she does not say that she checked it. Furthermore, she says that Jill "ALLEGEDLY borrowed..." implying that she did not have any other authority for believing this than Clarke's input to her.)
If Marcia Clark's account is right, we learn a little more to add to Bosco's story. First, we now can understand part of Clarke's claim of "She has sued me, I've sued her, I've recovered." Second, we see that Clarke wasn't taking any chances, in addition to talking to Pam Ferraro on Tuesday night, he somehow got Marcia Clark's fax number and sent her a message directly by Wednesday morning. He was very clearly a man on a mission to discredit Shively with the prosecutors.
It is a little surprising that Marcia Clark knows so little about the incident that caused her to doubt her star witness that she characterized her as Clarke's "business partner," rather than as his "ex-girlfriend." The distinction is important in understanding the possible cause of a dispute between the two. While the interactions between business partners are usually circumscribed, there are may activities between a woman and her boyfriend, and some of these involve an exchange of money. In such a situation, it often happens that the exact status of the exchange -- gift, loan, payment for a common expense -- is unclear, and later misunderstandings when the underlying relationship fails are common. In this way, it is possible that Clarke, in his fax to Marcia Clark, misrepresented the cause of a "$6,000 misunderstanding" to be Shively's fraud. Certainly some judge must have seen it as a lesser misunderstanding, since even in Clarke's version, he only claims to have recovered $2,000.
Clark is also shading the truth when she relates the Thursday morning session with the Grand Jury. She says, "And so I made Ms. Shively return to the witness chair the next day and made her repeat her squirming explanations to the grand jury." A reading of the grand jury transcript does not give one the impression that there was anything the least bit "squirming" about Shively's responses. She was forthright, unequivocal, and not at all defensive in what she said. Only once did she go into a brief explanation of why she had made a mis-statement to the prosecutors on Tuesday. Upon reading the long barrage of accusatory questions Clark put to her, one can imagine that a person might have squirmed, but Shively did not.
At the time she wrote her book, Clark apparently believed that Shively had made up the story of seeing Simpson just to insinuate herself into the case. In the passage about Shively, Clark says, "In the Simpson case -- as with no other case in history -- there was an incentive for people to come up with phony stories in order to cash in on sudden fame." As we will see below, almost no one else closely connected with this case doubted that Shively's story was true, and Shively herself passed up innumerable later opportunities to make money from the incident. In actual fact, it was Clark, not Shively, that made a windfall from the Simpson case.
Marcia Clark's conclusions about the Shively saga suggest that she still doesn't get it. She says, "In the end, the loss of Shively, thank God, was not ruinous. We had other time-line witnesses, and they turned out to be first-rate." Of course, none of the other witness saw Simpson away from Rockingham near to the location and possible time of the murder, and of course "in the end" Clark lost the case. Not ruinous?
PETROCELLI: Because of my contacts with Shively, I looked to see what other authors had to say about her. In his book about the civil trial, "Triumph of Justice," Petrocelli apparently considers that Shively's reputation has been so thoroughly ruined that he does not even mention her.
SCHILLER & WILLWERTH: In their book, "American Tragedy," these author characterize Shively's account as "particularly damning," but then accept Marcia Clark's representation that this valuable testimony was sacrificed because of Shively's mis-statement to presecutors the day before. They were aware of a garbled version of the Brian Clarke involvement, but apparently had not looked into this.
SHEILA WELLER: In her book, "Raging Heart," this author devotes a page to summarizing the grand jury tesimony Shively gave about her experience at Bundy and San Vicente. She takes no position -- pro or con -- on Shively's credibility. She repeats the common but mistaken notion that Marcia Clark told the grand jury to disregard Shively's testimony because she had received $5,000 from HardCopy.
FUHRMAN'S VIEW: In his book, "Murder in Brentwood," Mark Fuhrman says that he thinks it was a mistake not to have used Shively in the trial, insofar as she brings to the issue different testimony than anyone else. He said, "I thought Shively's testimony would be damning." He thinks the popular idea that she was bounced for selling her story to the TV tabloid is crazy, but he was told by a DA-Office insider, "Marcia didn't like her. She doesn't trust her."
Fuhrman quotes Vince Bugliosi as saying, "Jill Shively was a very strong witness." If he was prosecuting the case, Bugliosi said, he would certainly have considered using her.
JEFFREY TOOBIN: This writer and legal consultant followed the Simpson case for "New Yorker" magazine, and his book, "The Run of His Life," is often quoted. He recounts the Shively incident as fact, and discusses at some length the history of witnesses selling their stories. The practice is disliked by the attorneys, but after a 1991 Supreme Court Case involving legislative developments following the "Son of Sam" crimes in New York, it is considered legal. (Under some special circumstances -- such as a specific judicial order -- discussing what one knows freely can still be illegal.)
On one point, he disputes a detail Shively told us in her letters: After saying, "By Sunday June 19, [Shively's] name had leaked out as a witness and reporters were banging on her door," he continues to describe the advice that the DA's office gave to Shively. "The next morning she called Patty Jo Fairbanks whose name she had been given as a witness coordinator for the district attorney's office. Shively later recalled Fairbanks saying that she could give no interviews until after she had testified in front of the grand jury; Fairbanks remembered telling her to speak to no one at all." Shively gave her interview to HardCopy in their studios on the Paramount lot on the afternoon of the 20th. Shively told us in her letters that the DA's witness coordinator had given her the green light; Toobin says not.
There is a very simple possibility that could explain this apparent contradiction. If Patty Jo had been completely truthful with Jill, she would have said something like, "There is no law preventing you from saying anything you want to anyone you want before you go to the Grand Jury. However, when you appear there you will be admonished not to discuss the subject of your appearance further with anyone but the attorneys in the case. Even though it is not illegal for you to talk to the media before your Grand Jury appearance, the District Attorney urges you not to." It takes all of that to completely explain the situation, and within that there are grounds for Patty Jo to say, "I told her not to talk to the media," and also grounds for Jill to say, "She said I could talk to the media." And at the time, of course, these events were unfolding at warp speed; there was not an opportunity to parse sentences. Jill had to decide almost on the spot whether to accept the HardCopy offer or not.
Toobin points out that Marcia Clark could hardly have thought that Shively was trying to conceal from her the fact that she had made an appearance on a national television program. There is scarcely a more public or less secret forum in the world. So, Shively's mis-statement could only have been a result of confusion, rather than an effort to mislead. However, Toobin says that Clark dismissed her witness "in a fit of pique," with the words, "We've got plenty of circumstantial evidence. We don't need you. We're going to make an example out of you."
There is a detail in Toobin's account that is not found anywhere else -- not in Shively's police report, not in her Grand Jury testimony, not in other books. Toobin says of the near collision between Simpson and Shively, "Shively slammed on her brakes, as did the white car, which then ran up partially on San Vicente's raised center median." The least violent interpretation of this is that Simpson's car came to rest with one wheel up on the median. This detail was apparently known to Vannatter who had far more extensive conversations with Shively than is contained the official police report reflects. (If nothing else, he was cooped up with her for two days in the grand jury witness waiting room.) The police went to the median where a car swerving to avoid the collision Shively described would have landed. They found a recent tire track in the grass, photographed it, and found that it matched the tire on the Bronco. However, it did not have the kind of significance that the media or Marcia Clark were interested in: by itself it did not tie Simpson to the crime. The identity of the car that left the track on the median was too general -- only that it was a SUV, and the time when it was there was too vague. So, the world never heard about this detail.
But, it does have other significance. It is very unusual for any vehicle -- much less an SUV -- to have a wheel on that median. And for this to have happened during a period of a few days in which a witness claims that a particular SUV was there very much validates her claim.
VANNATTER AND LANGE: In their book, "Evidence Dismissed," their writer says, "Vannatter genuinely believes that [Shively] had an encounter with Simpson on the night of the murder." That source is also valuable for containing a copy of the original police report that Shively made on the 15th (when the air was still more full of false rumor than fact):
"On Sunday, 6-12-94 witness was en route to the Westward Ho Market on San Vicente across from the Mezzaluna Restaurant. Witness was eastbound approaching Bundy, the light was green for east/west traffic. Witness observed a white Ford Bronco northbound on Bundy run the red light and almost collide with a light gray Nissan, 2-door, who was westbound on San Vicente. The driver of the Nissan was a male white, 18/25, clean shaven, looked like a college student. Both the Ford Bronco and Nissan stopped. Witness recognized the driver of the Bronco to be O.J. Simpson. Witness had stopped at the intersection also. Witness observed Simpson lean out of the open driver's door window and yell at the driver of the Nissan. Witness heard Simpson yell, "Get out of the way, move, move, get out of the way." [She said] "O.J. was angry." The driver of the Nissan got out of the way and continued driving westbound. Simpson drove northbound on Bundy at a high rate of speed. Witness continued to the store.
"Witness specifically remembers that this all occurred just before 11:00 pm because she thought the Westward Ho Market closed at 11:00 pm. Witness had to get to the market before it closed.
"Witness frequents the Brentwood Village area and has seen both O.J. and Nicole in the neighborhood many times."
Although Shively's grand jury testimony was more elaborate than this police report, there is no contradiction between the two.
THE PUBLIC: The result of dropping Shively at the Grand Jury is that no one believes she is credible A poster to this newsgroup has said, "...Shively disappeared from the prosecution case as if she never existed. That would also have to mean she was so discredited in the prosecution's eyes (more than likely after more investigation into her story) that even a reference to her claim would bring total discredit to the prosecution." As we have seen, it appears that her background was not actually investigated, and of the idea that she "was discredited in the prosecution's eyes" we can turn to Shively's letters:
"They [the prosecutors] always believed my story; they just thought I was a felon [because of Clarke's unchecked allegations.] A lot of people were and are mad about Marcia not using me; it split the D.A.'s Office. I have a friend who works in the D.A.'s Office."
So, prosecutor Conn and many others in the DA's Office believed her, investigators Vannatter and Fuhrman believed her, and latter day reviewers of the case Bugliosi and Toobin believed her. But, Marcia Clark apparently did not, and she was in charge.
(However, shortly after the grand jury event, DA Gil Garcetti finally made a formal assignment of a prosecutor for the Simpson case. He formalized Marcia's "acting" role, but required that she share the position with another "strong" prosecutor, and work with him as equal co-councils. Her first choice, David Conn, turned her down, but then she found Bill Hodgeman, who agreed to a tacit understanding that she would actually be in charge. Garcetti saw that his concept of "co-councils" was not being implemented, and he instituted periodic reviews by senior members of the DAs office of progress in the Simpson case. In this way, when Marcia wanted to bounce the Ross Cutlery employees for an interview with the Enquirer, the same way she had bounced Shively, there were other voices to restrain her. It is very likely that if Marcia had not been such a prima donna and a loose cannon in the grand jury, Garcetti would have given her unambiguous control of the case.)
A REMARKABLE COINCIDENCE: The Clarke-to-Ferrero-to-Clark charges that ultimately removed Shively from the case came immediately upon the publication of her account on HardCopy, and it is presumed that this was stimulated by Clarke's chance encounter of that program. But, think of how damaging Shively's story is to the defense. Like Fuhrman's finding of the right hand glove at Rockingham, the defense could not allow it to stand, and had to defuse it somehow. At that point, Cochran did not yet have a public presence in the case, and Shapiro was in charge. His acknowledged forte was media manipulation -- he had lectured to other lawyers on the subject. The possible harm from Shively could have been known to him as early as June 14th when she called the police, and the details could have been known by June 15th when she had made a specific report to Vannatter. (We are reminded of the cozy relationship between Shapiro and the police in that Simpson was free upon Shapiro's personal assurance that he would be delivered if required.)
The insecurity of police reports is indicated in Marcia Clark's book where she describes the Robbery/Homicide Division bullpen in Parker Center where Lange and Vannatter had their desks: "...a large room with about twenty desks facing each other in two rows. Consequently, the homicide team that worked on the LAPD's most sensitive cases had absolutely no privacy. Their notes and reports were in plain view of any clerk wandering through -- it was Leak City." And, as any TV viewer of the time can remember, any official development in the case was media fodder within 24 hours.
So, Shapiro's investigators had from June 15th to June 21st to uncover links from Shively to others. Armed only with Shively's name, an investigator's first stop would be at the records division of the L.A. County Courts, and there he could discover a dispute with Brian Patrick Clarke. Further digging would reveal a branch from Clarke to Ferraro. Because this link is so distant and tenuous (Ferraro's husband did not even know who Clarke was), we may doubt that they often talked on the telephone, or that Clarke even knew Ferraro's telephone number. And yet, two messages he left on the answering machine were frantic to get his story to her. As an aspiring young actor, Clarke had a predictable agenda of his own -- to get as much "face time" as he could -- and hence was susceptible to manipulation by anyone who whispered in his ear that he, too, had a shot at publicity in this high profile case. It is not beyond reason to speculate that Shapiro's agents -- directly or through an intermediary -- suggested the call to Ferraro and provided the phone number to him.
However, since Brian Patrick Clarke had already known Simpson for eight years, it is possible that he figured out for himself the possible advantage of launching a smear against his former girlfriend.
SHIVELY'S EXPERIENCES WITH MARSHA CLARK: Some of the members of our group found Shively's recounting of her experiences with Marsha Clark to be the most fascinating part of her letters.
Shively says, " Marcia was very cocky, she told me I blew her case in one breath and in another she told me that she didn't need me she had enough evidence to convict him anyway. She made a statement that she could convict him even if she had twelve monkeys on the jury. I was scared to death most of the time. I was in tears because of Marcia. Marcia was very mean and her ego was flying all over the place. David Conn told me he was sorry for the way Marcia treated me. She was way out of control. I had to hire a lawyer to protect me.
"Marcia wanted me to say I saw blood on O.J.'s hands. I would not. She wanted Allan to say he saw the cars parked her way. Her time line did not match the real time line.
"Marcia was abusive and her ego messed things up. She wanted her own time line to things, in the long run her timeline goofed up the whole case. She wanted witnesses to say things or add to what they saw. It was a crazy thing; she would yell at us for long periods of time. We discussed our testimony in the waiting room of the grand jury. I felt that this influenced others to feel a certain way. I was in the waiting room for two days. Lange and Vannatter were very nice. Marcia would call me in to rehearse my story and yell at me to prepare me for Cochran. She said he was tough and I was very important to her case so she had to yell at me. I then got an attorney." (Although Shively could not have known it at the time, the world would later watch Cochran examine witnesses for many hours in court. He never yelled at any of them. Though Cochran deserves much criticism for other things, he was unfailingly the most courteous attorney to witnesses. Clark's defense of her shrewish behavior is just unfounded.)
"My life became hell. The D.A. from the start said that they would keep our identities as secret as possible. I was hounded in my home and at work day and night with reporters. One night as I was putting my daughter to bed, there was a camera staring at us in the window; American Journal, I hate them. My life and my family's life became hell. I hated myself for ever being at that intersection. I thought I was a goner and my daughter was an orphan.
"Marcia's ego blew the prosecution. [Marcia Clark continues to repeat the false charges about me in her book] to save face because she blew things left and right. Whether O.J. was guilty or not, he was lucky it was Marcia Clark and not David Conn running the show."
SHIVELY ON BRIAN PATRICK CLARKE: After reading Marcia Clark's characterization of Shively's accuser, I asked Jill point blank whether Clarke had been her "business partner" or her "boyfriend." She said "Brian was my ex-boyfriend."
On the subject of the dispute with Clarke, Shively says, "I have never been considered a dishonest person. I never ripped anyone off for a script as reported, but because I would not come on a show and argue the point, they went with a lie. After the HardCopy interview I stayed away and turned down all kinds of money just to try to redeem myself in Marcia's eyes. She wanted me to do this and that was fine with me." In another passage, she makes the same point in a slightly different way, "I offered from the start to turn down the money [for the HardCopy interview] and all money after that. David [Conn] and all of the others were fine with that. I had taken responsibility for my mistake and was willing to correct it." (I, myself, do not consider that she had made any mistake to correct.)
We can certainly believe that what Jill says about turning down interview requests is true. In those hectic days less than two weeks after the murders, the media was hungry for any interview it could get. A witness to a fleeing Simpson would have had uncountable offers. And yet, there were no TV interviews with Shively after HardCopy.
This is quite different than the public interpretation. Clark dismissed Shively, and she disappeared from public view. The obvious idea was that she had been found out in some sort of scheme and left the public stage with her tail between her legs. It is only now -- four years later -- that we learn that Shively was chastised by all the flak she took for selling her story to HardCopy, and tried to get back in Marcia's good graces by refraining from public appearances after that -- even to defend herself. Essentially, Shively pulled the pin on her own PR self-destruct package -- to Marcia's benefit. Not surprising that "[Marcia] wanted me to do this." But, it was a rather ruthless way for Marcia Clark to treat one who came to help.
SHIVELY'S MOTIVE: The common mode of analysis in the newsgroup is to guess at a person's hidden motives, and from that deduce the significance of anything he may have said or done related to the Simpson case. In the instance of Shively's original testimony, we can see that this is a foolish way to proceed, but I expect that there will be those, nonetheless, who will demand to know what Shively's motive is for re-opening the subject of her grand jury testimony.
It is my impression that Shively is pissed off, and grandly so. First, she is angry that for trying to do the right thing, and do it in the most helpful possible way, she has been made into a pariah. She saw something that was of interest to the authorities, and came forward as she was supposed to. Then, she tried to cooperate with the establishment (in the body of Marcia Clark) by emphasizing some of what she saw, and de-emphasizing other parts as she was told would be helpful, and to the degree that she could in good conscious do. In the midst of all the fast breaking experiences that were so new to her there were a couple of points of confusion (small wonder) concerning who she had talked to, and whether it was all right for her to give an interview. The roof fell in on Jill, but she still tried her best to make it right by refusing further public appearances, and thereby sealed her fate as appearing to be a woman with a past. Marcia Clark contentedly took the benefit of Shively's silence as though it were her due, and when she wrote her book characterized her as a two-bit fraud. Would you not be pissed off?
Second, in all of this, an old dispute with Brian Clarke was the lever that was used in Jill's defamation. She felt in that dispute that she had been victimized, and now the Los Angeles District Attorney's Office was abetting her tormentor, advancing his false cause, and injuring her. Would you not be pissed off?
Finally, the incident presents ongoing practical problems. When Jill meets a new person, they typically say, "Oh yeah. Jill Shively. I know; you were the Simpson case witness who... Oh, yeah. Nice to meet you, I'm sure." and walks away. If she goes on a job interview she has to go through long explanations to prove she is not a crook. If she tries to get an apartment or applies for a loan, it's the same. (I must admit that even when I began my correspondence with her, the first few letters were devoted to her having to reassure me that she was not a compulsive litigant who would sue me. I had also heard that she was a perennial "star witness" that had come forward in other high profile cases with false evidence. She never had done such a thing, and here she had to convince a stranger of it before he would engage in correspondence with her.) Would you not be pissed off?
But, all of these are superficial details. The real cause of Jill Shively's ongoing outrage has been familiar for more than 300 years: "Hell hath no fury like a woman scorned."
THE PERSON OF JILL SHIVELY: Jill Shively grew up in Indiana; when she was 18 her parents divorced and Jill moved with her mother and sister to Santa Monica, where her mother got a job as a medical transcriber. The three newcomers to LA remained close, and Jill maintained a correspondence with her father in Indiana, and later with her half-siblings by his second marriage. By 1994 Jill was a 32 year-old single mother, and was raising her daughter in a modest one-bedroom apartment in Santa Monica.
Jill was able to scrape together enough money, however, that Marcia Clark says, "Scott Gordon, one of my fellow D.A.s knew her because their children went to the same school." In this detail, we see the potential seed for Marcia Clark's quick suspicion about Shively's genuineness. Within the space of a couple of days, overworked Marcia would become acquainted with Jill, who was presentable and articulate, and whose daughter went to the same school as a fellow D.A., then Marcia would discover that Jill lived in a one-bedroom apartment and drove an old Volkswagen without a radio. These qualities do not usually go together, and without the time to check more closely, it is believable that Marcia Clark would come to the snap conclusion that Shively was phony. Then, when a fax with a specific allegation came in, and believing that her case was a lead pipe cinch even without Shively, Clark dumped her.
At the time of her Simpson sighting, Shively was working part time for a film distribution company, raising her daughter, and often caring for her sister's daughter.
Since that fateful chance encounter at Bundy and San Vicente in 1994, Jill has changed jobs, and changed apartments (she still lives in Santa Monica). And, tragedy has followed trouble for her: the sister to whom she was so close has died since then. Only now is she far enough from the crush of personal problems that she can think of being public with the cause of her Simpson-case reversals. She is finally -- at this late date -- contemplating TV interviews.
CONCLUSION: I could not express better than Ron Egan the conclusions that most of those felt who read Shively's letters. This is what he said (abridged):
After reading what Shively has had to say, I figure things this way:
1. She did indeed see Simpson in the intersection.
2. Except for the fact that she realized that she'd have to hurry to make it to the store by 11:00 when she woke up, she has no idea exactly what time she actually left her house.
3. Except for a clock in her car that she knows was incorrect, she really has no idea exactly what time she reached the store.
4. Since she wasn't even looking at her incorrect clock [when the near accident with Simpson occurred], she has no idea exactly what time she saw Simpson. It's all guesstimates.
5. Clark tried to force her into a definite time (this is evident in the transcripts too) that would fit her theory.
6. Clark is an egomaniacal fool, and screwed [Jill] royally with her behavior.
... I have no doubt that Shively saw Simpson on his way back from Bundy. The attacks by Clarke and Bosco make her that much more believable in my book. ...
I believe her, (especially what she says about Clark) and you can tell her I said so.
SIGNIFICANCE: By itself, Shively's sighting of Simpson tells us little that we did not already know: he was fleeing home from Bundy at some time after Kato saw him at 9:45 and before Park saw him at 10:55. However, it does serve as additional confirmation to this understanding that we have in so many other ways. It is in its combination with other evidence that Shively's account gives its greatest value. When combined with Heidstra's testimony, it strengthens that, and gives us thereby some idea of the time of events: Simpson left Nicole's condo at 10:35, Heidstra saw him at 10:37 race down Bundy, Shively saw him from 10:39 till 10:40 struggling to get through the intersection at San Vicente, and Simpson arrived at Rockingham at 10:44.
Shively's interpretation of what she saw is also of value. The crazy-acting Simpson she saw, when she later heard about Nicole's murder, seemed to her to have been fleeing from the discovery of a murder that had already occurred when he came upon the scene. She saw this man's demeanor in the midst of his panic, and that is what she thought she was seeing. You and I did not see him then, and to second guess her interpretation on intuitive grounds alone is at least rash.
Most important of all, Shively's letters give insight into the criminal justice system, the great but irresponsibly managed power of the media, and the way that the public -- you and I -- are so easily manipulated into a totally incorrect idea about the truth of things.
To end on a tragic note, consider Jill's personal conclusion about her experience. Remember that in her relationship with the establishment, she is just a regular person, like you are, and like I am. The most important thing to her in the world is her family, and she struggles to get through life just as we do. Originally, she had the idealistic vision of a person's relationship to his community and its institutions, and she was as appalled as we by the story of Kitty Gennovise, and denounced the great American tradition of "Don't get involved." When she had the experience of seeing Simpson, it was inconceivable to do any thing else than she did: Call the police. But, Marcia Clark, the Dream Team, and American Journal changed her outlook drastically.
She now knows what the guy in the gray Nissan knew going in. In her letters to us, she says, "I will never ever call the police or be a witness to anything ever again...".
GO FIGURE: With the new information in this article, the people in the alt.fan.oj-simpson newsgroup have more to evaluate Shively's credibility than has the man on the street. For me, there is no longer any doubt that Jill saw what she told the grand jury, and saw it at some vague time around 10:45. Different people may draw different conclusions as to what this means to understanding the total Simpson scenario, but this fragment of it is no longer a matter of dispute for me.
I realize that it will be the common wisdom that a rehabilitation of Jill Shively only strengthens the obvious conclusion in the Simpson case: he is guilty. But, I have the opposite conclusion, and I think that a clearer understanding of all the evidence -- including Shively's account -- makes that conclusion stronger..
Dick Wagner Van Nuys, CA (7/13/98) SHIVELY.TXT firstname.lastname@example.org