Selling your Story

Among the several reasons that people have claimed that Jill Shively should be disbelieved is the fact that she sold her story of witnessing O.J. Simpson fleeing the crime scene to the TV tabloid, "HardCopy." Some critics have characterized her as having aggressively sought as many opportunities as she could for selling her story, and thereby imply that she has created her story out of thin air for the specific purpose of selling it. Here, we will look at both the general question of witnesses who sell their story, and the specifics against Shively.

SHIVELY'S INTERACTION WITH THE MEDIA: Hard factual information on this subject is contained in the L.A. Superior Court record for BC 124652, a March 1995 action in which Shively sued the producers of "American Journal" and others for defaming her. The defendants in that suit were interested in making a similar point, that Shively actively courted the media and made significant money by selling her interviews. The more they could show this, the more they could persuade that she was a "public person," and not entitled to the greatest degree of protection of her reputation by the media.

The only such activities that the defendants documented were,

1. THE GLOBE, 4/27/93 (Supermarket tabloid) concerning her relationship with Clarke. ($900)
2. HARDCOPY, 6/21/94 (TV magazine) concerning her sighting of Simpson. ($5,000)
3. THE STAR, 11/1/94 (Supermarket tabloid) concerning her sighting of Simpson. ($2,600)

(Note: the fee for the GLOBE article has been described as being "between $800 and $1,000." I use $900 for convenience.)

The appearances on HardCopy and the article in The Star were arranged at the same time. That is, Shively signed a contract before the HardCopy interview and in that same meeting also signed an agreement for The Star story. Furthermore, it was a condition of the HardCopy contract that she gave the HardCopy producer exclusive rights to her interviews for a period of time, and thus she could not appear for money in any other medium in the period following the HardCopy interview.

In her November 1, 1995 deposition (under oath, and cross examined, of course) she was asked how she came to do the Globe interview in 1993. She said that the writer, Karen Taylor, contacted her out of the blue. She was asked how the Globe writer knew who Shively was (since the article was intended as a sensational expose piece about Clarke.) Shively understood that the writer had come onto the story by combing the court blotters, finding Clake's name (a soap opera actor) and tracking down Shively as defendant with her name and address from court records. Since Shively very strongly disputed Clarke's version of events in the small claims action, and the Globe was offering to let her tell her side, and give her $900 too, Shively agreed to the interview. There were no repercussions to Shively at the time for having done the Globe interview.

HARDCOPY INTERVIEW: In the same deposition Shively is asked about the circumstances whereby she came to do the HardCopy interview. On Saturday June 21st, LAPD officers Tippin and Carr delivered a grand jury subpoena to Shively, and wrote down the testimony she expected to give on Tuesday. They did not comment about the possibility of Shively's being interviewed by the media. Subsequently, probably on Monday, June 20th, Shively took the subpoena to work and showed it to co-workers. Later on Monday she received a call from a woman named, "Nancy" at HardCopy, who said she was calling "about the O.J. Simpson case." Specifically, Nancy wanted Shively to come to the HardCopy office to discuss her police report, which the woman claimed was public information. Shively was surprised, since she had believed that grand jury proceedings were secret, and would not have thought that the media could contact her.

Shively went to the Paramount lot and met with Linda Ellman who was apparently either a producer for the show or had some significant responsibility for it. At the time Shively went to the HardCopy offices, she understood that it was to "discuss" what she knew about the Simpson case. There had been at that point no talk about her appearing on videotape, or about receiving money for her appearance. (We do not know from the record what fantasies Shively may have entertained, or what oblique things the telephone caller may have said to stimulate those.) She testified that she had not contacted HardCopy before the first call came from there, and that she had not asked anyone else to make such a call on her behalf. After she got to the studios, she met with Ellman, Doug Bruckner, and others. She later found out that Bruckner was an on-air interviewer, but in the beginning these people simply discussed with her the experience she had, as though they were collecting background information for a TV report.

After the HardCopy interview was a done deal on the 20th Shively's vague expectations that grand jury proceedings were secret was finally confirmed, when Shively met with DA personnel before her grand jury appearance on the morning of the 21st. At that time, someone [probably Patty Jo Fairbanks] explained to the assembled grand jury witnesses the rules and customs of grand jury procedures The HardCopy interview and the contractual arrangements for it were history by that time, and the interview would be aired that same night, the 21st.

However, Jeff Toobin says, "By Sunday, June 19, her name had leaked out as a witness and reporters were banging on her apartment door. 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." This call is not mentioned in the deposition, and the implications of the deposition are that Shively's first contact with DA personnel occurred on the morning of the 21st. On the question of whether Shively talked to Fairbanks on the 20th there seems to be a conflict, and I can not further resolve it from the court record. However, this is the only conflict I was able to find between the deposition and published sources of which I am aware.

SHIVELY, CONCLUSION: From the foregoing, we get a factual picture that is somewhat different than the result of conjecture and vague recollections of what passed by in the media four years ago. Shively did not make a multitude of public appearances, she did not receive great sums for the appearances she did have, and she did not actively seek the few appearances made. In fact, there where only two occasions on which she made agreements to be interviewed for money: one in connection with the small claims action, and the other in connection with the Simpson case. The first resulted in a tabloid article, the second resulted in a TV interview and a later tabloid article. In neither of these cases did she actively seek the interview, but the media sought her out.

Furthermore, in the case of the Simpson interview, she had the prior experience -- about a year earlier -- of the Globe interview in which she received payment for an interview and no questions were later raised. According to her previous experience, there was nothing wrong with her giving the HardCopy interview.

But, Toobin claims that Patty Jo Fairbanks told Shively to talk to no one. We can be sure of a few things that would have transpired in such a conversation. Fairbanks would have represented the DA's position, and that was doubtless that the DA did not want witnesses to appear in the media. So we can believe that Fairbanks "remembered telling Shively to speak to no one at all." But, if such a conversation lasted any time at all -- and especially if it occurred when Shively was already in the HardCopy offices -- the question would have come up of the distinction between what the DA wanted, and what Shively was required to do under the law. This then would have required Patty Jo to say that it is usual for the grand jury to admonish a witness to be silent about their experience after they leave those proceedings. This is the opposite of what Toobin says Shively believed, "... she could give no interviews until after she had testified..." and is also in conflict with her actual conduct of giving the interview BEFORE she testified. What Shively did was in conformance with what Patty Jo should have said, not with what Toobin says Shively believed she said. (It was also in conformance with the law.)

So, at worst, we are led to think that when Shively was at the Paramount lot, she believed that an interview with HardCopy was contrary to the DA's wishes, but was not illegal. In fact, both things were true. And, she had her prior experience with the Globe interview that caused her to think the interview was proper. Her action in proceeding with the interview does not therefore seem unreasonable. We also must take into account that these decisions were made in the span of a few hours, at most, of the time when the question came up. Shively's first contact with HardCopy was on the 20th, she signed the contract on that day, and the interview was also taped on that day. Under the pressure of little time, one does not always make the same decision that he would make if he had more time.

MOTIVE: Then, there is the question of whether selling one's story, in general, impairs one's credibility. Powerful and loud voices claim it does; the mainstream media is one of the first to assail the practice. Of course, they have a stake: they would like not to spend the money for the information that they themselves sell. What producer of consumer goods would not like to get his raw material for free? However, if it is logical to think that the original source of information is unreliable because he profits from it, is it not also logical to think that the newspapers, magazines, and TV stations that resell it at an inflated price are not also unreliable? It is rather like thinking that the farmer who takes money from the miller is selling tainted goods because money changed hands.

The witness in a high profile case can expect to have a financial burden that comes from their experience. Shively has spent more on attorneys than she ever got from selling interviews. (At the time of the Bundy murders she was working days in the sales department of 20th Century Plastics, and working nights at Domino Pizza.) Kaelin, Fuhrman, and others had to retain attorneys to protect them from other attorneys. In the Clinton sex scandals many witnesses have had to hire attorneys to protect themselves. The unthinking public believes that such witnesses should bear these costs as a public service, and then refuse the offsetting interview income. They would not think so if it happened to them. The widespread practical solution to this problem for ordinary people is "Don't get involved," and so we have many cases where we expect that there should have been witnesses (as the young man in the gray Nissan) but they never come forward.

Then, there are the lawyers. They do not like the practice of witnesses selling their stories because then they can not control the flow of information. Since they are compulsive manipulators, this goes against their grain. If only the lawyers control the witness's statement, then the lawyers can deal and trade among themselves as to who says what.

Also, there is the general question of how much credibility any person has for the things they say in which they may have a financial stake. A doctor's opinion may be colored by the fact that he stands to profit by doing the procedures that his opinion prompts. The same is true of a lawyer, or an auto mechanic... In all cases where a link exist between what a person says and the potential for profit, we may inquire as to whether the words are true, or self-serving. And so, we have inquired of the situation with Jill Shively as we have reviewed few others, and have not found undue cause for suspicion that she is not telling the truth.

Finally, there is considerable hypocrisy in suspecting Shively's truthfulness because she took less than $10,000, but ignoring Marcia Clark's motives when she took millions.

THE LAW: At the time of the Bundy murders there was a difference of opinion among people as to whether a witness should sell their story. But, the law -- the final arbiter of ethical questions -- in California did not prevent or interfere with the practice. Laws had earlier been passed whereby one could not profit from his criminal acts by later describing them for profit, but those did not cover a case such as Shively's. There has never been any allegation that what she did was illegal. However, if the things she said to the grand jury were not true, that would have been a crime. But, there has never been an investigation into such a possibility, much less a prosecution for it. In spite of all the furor, the District Attorney does not apparently disbelieve Shively.

However, because of the furor over the media frenzy surrounding the Simpson case, California passed a law at that time which does impact the question. It still does not make what Shively did -- a witness selling her story -- illegal; but it makes it a misdemeanor for a publication to BUY the story. To this day, the law does not consider it a crime for an innocent witness to SELL a story. (It will be interesting to see the legal turmoil when a San Diego witness to a crime ventures to Tijuana for a videotaped interview for pay.)

BOTTOM LINE: The common characterization of Jill Shively as being a woman who invents stories just to sell them to the media is not supported by the record. From every objective fact that is known, she is a rather ordinary person who had a singular unpleasant experience in her life (the Clarke dispute) shortly before the time when she unwittingly became a witness to an important event. Most of us ordinary people have had singular unpleasant experiences at one time or another, but they just rust away with time because we are not thrust into public events, and we do not become fodder for the legal machinery.

The idea that Jill Shively should not be believed because she sold her story is not persuasive.

Dick Wagner • Van Nuys, CA (10/24/98) NG 450