The Search for Justice (38 page)

The book had originally been the idea of O.J. ’s psychologist, Burt Kittay, and the project had begun the previous fall.
When I first found out about it, I was adamantly opposed to it. Anything O.J. said in the book, I argued, could open up lines
of inquiry by the prosecution. If he testified, he could be cross-examined on material in the book, and I thought it might
be especially negative in the event of a second trial.

Skip Taft ’s reasoning, and he was in a better position to know than any of us, was that O.J. not only needed the million-dollar
book deal to continue financing the case, but he also emotionally needed a forum to express publicly what he ’d been telling
the defense attorneys for six months. Those reasons notwithstanding, I didn ’t like it and I never changed my mind. I saw
it only as a significant potential threat to my client.

A few days later, Judge Ito severely limited O.J. ’s visiting privileges. He had abused them, the Judge said, by using the
time to write his book with Larry Schiller.

On January 11, Judge Ito excused two jurors from the panel. One was a Latina letter carrier who was reportedly in an abusive
relationship; the other, the African-American man who had worked for Hertz.

On January 13, we experienced one of the most difficult and emotionally charged days we had seen thus far, or would see throughout
the duration of the trial. The defense was arguing its intention of questioning Mark Fuhrman concerning serious allegations
of racism. It was our contention that his documented history of racially biased beliefs and behavior impeached Fuhrman ’s
credibility as a key witness for the prosecution, and we wanted the jury to know this.

Since the trial hadn ’t yet begun, the jury was not on hand as Johnnie read aloud to Judge Ito and the prosecution lawyers
some of the background material we ’d received on Fuhrman, which contained repeated use of the word “nigger.” Chris Darden,
understandably, grew noticeably upset as he listened, and
made strong objection to the
n
word being used in the jury ’s presence.

“It is the dirtiest, filthiest, nastiest word in the English language,” he argued. “It will upset the black jurors. It will
issue a test: ‘Whose side are you on, the side of the white prosecutors and the white policemen, or are you on the side of
the black defendant and his black lawyer?… Are you with the man, or are you with the brother? ’ “

As a black prosecutor in Los Angeles, Christopher Darden had probably faced many difficult challenges, and being named to
the Simpson prosecution may have seemed like a mixed professional blessing. Darden, a soft-spoken man, had a reputation for
hard work and deep commitment to his job and his beliefs. But his courtroom demeanor, especially when he was riled, gave him
the appearance of having a significant chip on his shoulder. He hadn ’t mastered (if indeed he wanted to) Johnnie Cochran
’s self-proclaimed adeptness at not ever letting people know what he was thinking and feeling.

Prior to the Simpson case, Darden had viewed Cochran as a role model. However, he had chosen not to emulate him. Once on the
prosecution team, Johnnie Cochran claimed that Darden had become an outcast in his own community, and even in his church.
Cochran took advantage of that, constantly baiting Darden for prosecuting O.J. Simpson, for being a “pawn” of the district
attorney ’s office. That they should be adversaries in this case—and in particular concerning the use of the
n
word—struck many courtroom observers as a painful irony.

Cochran responded angrily to Darden ’s remarks about the jury being offended, saying, “African-Americans live with offensive
words, offensive looks, offensive treatment every day of their lives. And yet they still believe in this country.”

Then Chris Darden fell into the trap of trying to match Cochran ’s indignation. “O.J. has a fetish for blond-haired white
women,” he said, “but the prosecution won ’t bring
that
up at trial because it would inflame the passions of the jury.”

At the counsel table, O.J. was teary as he listened, distressed about the use of the word he hated, and about the battle of
words and emotions between the two lawyers. He was especially upset about Darden ’s reference to Nicole. To him, this kind
of talk was race-baiting, and it didn ’t reflect the way he felt about race, or the way Nicole had felt about it. He was even
more horrified that it was coming from two educated black men, over a word that typified everything he ’d fought to get away
from.

Said a shaken Judge Ito, “This is the one main unresolved problem in our society, and for those of us who grew up in the sixties
and hoped this would go away, it ’s a big disappointment to still have to read this stuff.”

We heard later that the pressroom had become very quiet after the argument. Although I congratulated Johnnie later on his
ability to speak so passionately, I remained upset by the encounter between the two lawyers. I felt that it had somehow turned
a legal issue, an evidentiary question, into a street fight. By baiting Darden successfully so early in the trial, Johnnie
had established himself as top dog, unarguably a tactical advantage for the defense. Unfortunately, it set Darden and Cochran
on a dangerous path that would run between them like a live electric wire throughout the rest of the trial.

On January 20, the judge ruled that he would not ban the use of the
n
word in front of the jury, saying, “When meritorious arguments are raised on both sides, the court must always remember this
process is a search for truth and that it depends upon the sound judgment of our jurors.”

Assistant district attorney Cheri Lewis had called our motion to examine Fuhrman on the issue of his racial bias a “fishing
expedition.” Lee Bailey answered, “This fish is hooked, gaffed, and in the boat.”

The opening day of the trial finally arrived on Tuesday, January 24, 1995, under a steady drizzling rain, gray skies, and
the drone
of press helicopters. It was gridlock hell in front of the courthouse as everyone assembled for what writer Dominick Dunne
had called “the Super Bowl of murder trials.”

“This may be one of the most hard-fought legal battles ever,” Judge Ito said in his opening remarks to the attorneys at the
two tables in front of him. “I anticipate that both sides will spend a lot of time walking on the edge of the legal envelope.
Believe me, I ’ll do everything I can to keep you from going over that edge. I expect to see a demonstration of some fabulous
lawyering skills. I also expect to see absolute professionalism.”

Chris Darden led off the prosecution ’s opening statement, almost immediately presenting their theory of an abusive, obsessed
defendant. “If he couldn ’t have her,” he said of O.J., “he didn ’t want anybody else to have her.” Except for the 1989 incident
in which O.J. had plead no contest, the prosecution didn ’t have much concrete domestic-abuse evidence and Darden struggled
with weaving a convincing scenario without the facts on hand to support it. At one point during his remarks, O.J. leaned over
to me and Johnnie and whispered heatedly, “That ’s a lie!”

If O.J. was this agitated this early, wanting to counter the prosecution, wanting to go on the defensive, how would he respond
to what was to come? We had cautioned him about his demeanor in court, and he was trying to stay focused and calm, but he
had received grim news just before we came to court. His friend Bob Chandler was dying.

Marcia Clark ’s two-hour opening statement was an excellent piece of work. She was calm, understated, and compelling. She
told her story simply, using the facts as signposts to guide the jury, and although she made reference to the science, she
didn ’t get bogged down in it. Just as Darden had done, she referred to Nicole as Nicole Brown and to O.J. only as “the defendant.”
When the pictures of Nicole and Ron ’s bodies flashed on the big video monitor, there was a collective intake of breath, and
then the sound of quiet weeping in the visitors ’ seats behind us. O.J. averted his face, looking off somewhere in the middle
distance. He had never seen the crime-scene photos and had said more than once that he intended never to see them.

Suddenly Ito stopped the proceedings, abruptly dismissing the jury from the courtroom before our opening argument had even
begun. He had been told that a Court TV camera had inadvertently televised the face of an alternate juror. Angrily, he delayed
the defense ’s opening, saying that he was of a strong mind to shut the cameras off for good.

I objected in the strongest possible terms, arguing that the prosecution had just spent four hours portraying O.J. Simpson
as an abusive monster, and millions of people had watched as they did it. “It would be tremendously unfair for the world to
see TV coverage of the prosecution and not our defense.”

Saying that he wanted to deliberate, Ito recessed until the following day, when he would let us know his decision. At that
time, Cochran would deliver the opening arguments for the defense.

Johnnie had gone over his opening with all of us, and there had been an immediate difference of opinion regarding how far
we should go with an affirmative defense—to make a preemptive strike on the prosecution ’s case. I cautioned him to be careful
to speak in general terms, especially when it came to events O.J. might be the only witness to, since the question of O.J.
testifying remained open.

I was uncomfortable with some of the time line witnesses that Johnnie planned to mention, Rosa Lopez and Mary Anne Gerchas
in particular. In high-profile cases, I ’ve always been skeptical of witnesses who come in late with their stories. Something
about Lopez unnerved me. She was a maid for the people who lived next door to O.J., and she was adamant about what she ’d
seen: O.J. ’s Bronco parked out in front of Rockingham, at a time when the police claimed he was at Bundy committing the murders.
But she was vague about everything before and after seeing the car, including the month or season her Bronco sighting had
occurred. I felt she wouldn ’t be believable.

At least the next-door proximity made Lopez a natural witness,
unlike Mary Anne Gerchas. Gerchas ’s story was that she ’d seen men in knit caps running away from the Bundy crime scene.
But when she saw them, she told us, she had been driving around the neighborhood looking at condominiums. In Brentwood at
ten
P.M
. on a Sunday night? That would ’ve been highly unusual. Besides, it wasn ’t our job to solve the murders, especially with
anecdotal evidence from a questionable source.

I suggested that Johnnie be cautious when he raised the problems with the scientific evidence, especially with the invective
he used against the L.A.P.D. I wanted him to use our CPA formula; that is, to describe the collection, preservation, and analysis
of the forensic evidence and all the missteps along the way. However, Barry Scheck favored using “contaminated, compromised,
and corrupted” and Johnnie liked that better. While there were certainly valid questions we could voice about the conduct
of a couple of investigating detectives and the police lab personnel, I was against launching our relationship with this jury
using a charge of blanket police corruption. “Just lay it out the way it actually happened, and let the jury draw their own
conclusions,” I suggested.