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.
Johnnie ’s answer was a return to his now-familiar theme of “I ’ve tried cases for thirty-three years and I know what I ’m doing.”
The next day, Johnnie delivered his opening statement. Ito had decided to turn the cameras back on, anchored in a fixed position, so that only the attorneys, the judge, and the witnesses could be seen.
O.J. had made a request to speak to the jury as part of the defense ’s opening statements; that request had been denied, but Ito did rule that he could show the scars on his knee, which would point to his physical inability to leap over the Rockingham fence, or kill two people. The pictures of O.J. ’s body taken during Dr. Huizenga ’s examination, which showed no bruises or signs of a physical struggle, were also shown to the jury. Johnnie described O.J. ’s longtime love for and generosity to the Brown family: He had secured the Hertz franchise for Lou, he steered clients to Juditha ’s travel business, and at one time or another he ’d paid college tuition for two sisters and had given money to a third. He referred to this as O.J. ’s “largesse.”
Johnnie ’s statement was three hours long, and much of it was riveting. He ’s a natural-born storyteller, and the jurors were obviously listening carefully. However, he waded into the kind of trouble I ’d been concerned about. He put too much emphasis on Lopez and Gerchas and used only fragments of the scientific evidence our experts had worked so hard to interpret and quantify.
He elaborated on the crippling nature of O.J. ’s arthritis, in spite of the fact that we knew O.J. had shot an exercise video three weeks before the murders, which the prosecution could (and did) use to undermine that. And as we feared he might do, Cochran scrambled the timeline. When he gave a list of the witnesses the defense would call—witnesses, it turned out, that the prosecution knew nothing about—he made the normally calm Bill Hodgman ripping mad. Ultimately Hodgman objected thirteen times during Johnnie ’s opening.
“They can ’t rattle me,” said Johnnie, “they can ’t stop me, and they can ’t shut me up.”
California ’s reciprocal discovery law (which is relatively recent) mandates that each side turn over to the other any statements or interviews of witnesses that they intend to call. The job of making sure this was done on the part of the defense fell to Carl Douglas and Gerry Uelmen. Uelmen was winding up his daily involvement with the case; thus, the onus was on Douglas.
Hodgman was personally and professionally appalled at what Johnnie had done. We had given them “a myriad of issues” to deal with, he said. He was visibly angry.
As Judge Ito said to the defense attorneys, “How do you suggest I deal with the objections of the prosecution after I succeed in peeling them off the ceiling?”
Ever since the case began I had been criticized very often, especially by the ubiquitous attorney Vincent Bugliosi, for turning over too much material, some of which didn ’t need to be turned over at all. My reasoning had always been that we had nothing to hide, and our story wasn ’t going to change, so why not give the prosecution everything?
After Ito suspended the proceedings, I walked over to Bill Hodgman and put my arm around his shoulder, trying to find a way to address the way he was feeling. Hodgman is a great believer in the justice system, a man who truly embodies the expression “public servant,” and at that moment he was rigid with anger.
“Bill, why don ’t you move for a mistrial, and we ’ll start all over again,” I joked.
There was no cajoling him. “Bob,” he said intensely, “we really have to sit down and talk.”
“You ’ve got to slow down with this,” I said, alarmed at the look on his face. “If you don ’t take care of yourself, you ’re going to have a stroke.”
That night, I was shocked to hear on the news that Hodgman had been hospitalized with chest pains. Earlier that evening, while he and the prosecution were reviewing Johnnie ’s statements, he was taken by paramedics from the Criminal Court building to Torrance Memorial Medical Center. It wasn ’t a heart attack, the reporter said; more likely, it was stress and exhaustion, exacerbated by anger.
When we assembled the next morning, I was thinking that we might request a short delay to give Hodgman a chance to recover and come back to court. But O.J. ’s position was no more delays, and we supported him in that.
Marcia Clark requested a recess until one-thirty that afternoon. When she came back—the jury was still recessed—she launched the most vicious attack I ’ve ever seen one lawyer hurl at another in a courtroom. On the record, she accused Cochran of activity that could (but would not) be reported to the bar, including deliberate misconduct and taking away forever the People ’s right to a fair trial. She and Darden said Johnnie had deliberately hidden evidence, was guilty of willful misconduct, and was deserving of sanctions from the court. In return, the prosecution wanted the judge to consider everything from not allowing defense witnesses to testify to reopening the prosecution ’s opening statements.
Johnnie immediately launched a counterattack, saying that the prosecution had withheld DNA reports and, furthermore, had stopped him from completing his opening statements, which had seriously compromised our case in front of the jury.
Without bringing the jury back in, Ito recessed for the weekend to consider the charges and countercharges. It was clear we were off to a rocky start, and nerves were frayed. Nevertheless, Chris Darden ended the day by saying, “I love the man. He ’s Johnnie Cochran, he ’s my idol.”
“No offense to Chris Darden,” responded Johnnie, “but I hope my wife doesn ’t love me the way he does.”
The next day was a day of odd contrasts and wildly erratic emotions. Court was still in recess; Bob Chandler ’s valiant battle with lung cancer ended; O.J. ’s book, I Want to Tell You, was published.
On Monday, January 30, Carl Douglas came back to argue for the defense, and it was the beginning of a pathetic week for us. He began by saying that the discovery law was relatively new, and there was little familiarity with it, and that even though he acknowledged that the withholding of information was his fault—since he was in charge of discovery—exactly how much responsibility we were held to under the law was still being interpreted. The argument was not compelling. The fact of the matter was, we ’d made a mistake.
When Ito issued his ruling, it was as harsh as it could be, and handed down in the presence of the jury. He said Cochran had deliberately withheld information, in violation of California law, and as a result Ito was going to allow the prosecution the unprecedented right of reopening their opening statement. It was as egregious an attack on a defense lawyer as I had ever seen by a judge, especially in a case that was being so closely watched all over the world.
When Marcia Clark came back the next day to make her second opening statement, she took Johnnie ’s statement apart point by point, weakening whatever impact his opening
might ’ve had with the jury. To add insult to injury, she refuted Johnnie ’s references to Mary Anne Gerchas, characterizing her as a “Simpson case groupie.” Ultimately, we didn ’t call Gerchas to the stand.
Johnnie then began his whirlwind TV week, starting out his day on Good Morning America, continuing on Entertainment Tonight, and ending it with Ted Koppel on Nightline. The rest of the defense team got a call that there would be a photo shoot for a Newsweek cover at Johnnie ’s office, a project that O.J. had approved. I reluctantly went to the shoot—the photo was never used—but the reporter, Mark Miller, called me the next day to tell me he ’d inadvertently taken our witness list showing which lawyers were going to examine which witnesses. He returned the list and to my knowledge never used the information.
On February 1, Ron Shipp testified. He was a former L.A. cop and self-proclaimed old friend of O.J. ’s. In my view, he was more of a hanger-on, a wanna-be. Shipp testified to two things: one, that because of his expertise on domestic abuse, he had counseled O.J. after the 1989 incident, and O.J. had admitted then that he had a tendency to be jealous of Nicole; and two, that on the night of June 13, he and O.J. had a conversation about a polygraph test.
According to Shipp, O.J. had expressed reservations about the test. “Would dreams affect it?” Shipp said O.J. asked. “Because I must tell you honestly, I ’ve had some dreams about killing Nicole.”
Shipp testified that he told O.J., “Well, that ’s something you have to talk to your lawyer about.”
In fact, O.J. did talk to me about it and on his behalf, I offered a polygraph to the district attorney ’s office, on the condition that the results were admissible. They turned down the offer.
Contrary to what Shipp suggested, O.J. was never afraid to take a lie-detector test, although he, like anyone confronted with an unfamiliar science, had some understandable questions about how it worked. In his first statement to the police, he admitted as much. “I ’ve got to understand what this thing is. If it ’s true blue, I don ’t mind doing it.”
As Carl Douglas was cross-examining Shipp, O.J. ’s concern was evident, as he kept turning to me and asking, “Do you like what ’s happening? Is it going well?”
“O.J., do you want to hear what you want to hear, or do you want to hear my honest opinion?” I asked.
It was a bad cross. Douglas was antagonistic and sarcastic, trying to destroy the witness by repeatedly asking questions—in a loud voice—about his being with a blonde in a Jacuzzi, when Shipp was black and his wife was sitting right there in the courtroom. He even accused Shipp of trying to launch an acting career by giving testimony in the Simpson case.
I didn ’t like what I was seeing, but Johnnie kept reassuring us. “Carl ’s doing fine, he ’s doing exactly what I want him to do. He ’s tearing him apart.” To what end? I wondered. We had plenty of credibility witnesses to come—Fuhrman, Vannatter, the L.A.P.D. lab staff—and we had expert witnesses of our own. If we ’re going to attack the character of every one of the prosecution ’s witnesses, I thought, we ’re in for a very long day in court.
Gerry Spence was quoted in the newspaper as saying Douglas ’s disastrous cross of Ron Shipp didn ’t erode Shipp ’s credibility in the least. “If I was Douglas ’s father,” Spence joked, “I ’d take him out in the woods and spank him real good so he ’d never do what he did again.”
A lawyer must adjust an examination according to the witness ’s reaction. Put simply, Shipp wasn ’t believable, and a short and simple cross would ’ve been effective. Had I done it, I would ’ve begun with one question: “Mr. Shipp, have you ever had a dream that didn ’t come true?” The defense had to get it through to the jury as soon as possible that the prosecution ’s case was shaky indeed if the time of death was decided by a dog and the motive for murder was based on a dream.
That day, Ito adjourned court early so that I, along with Skip Taft and Bob Kardashian, could attend Bobby Chandler ’s funeral. We promised O.J. that we would go in his stead. We also did it on our own behalf, to honor Chandler and the kind of man and friend he had been.
Monday, February 1, Brent had the day off from school. I had asked him if he ’d like to go to court with me. I was pleased when his response was an enthusiastic yes.
As large as this story was playing in the rest of the country, it was even larger—yet somehow more personal—in Los Angeles. Everyone had an opinion. Linell and I frequently heard from our friends about marital battles occasioned by a husband being on one side and a wife on the other. It was no different for the city ’s kids, especially for the children of the attorneys. Brent had heard from some of his classmates that things had changed on the defense team. He was aware of the publicity and he was feeling a little protective toward me.
I explained how some of the changes affected me—that although I was responsible for overall strategy and had to be prepared for all the testimony, the real responsibility for the presentation of the evidence wasn ’t mine now that we were in trial, and I had to be realistic about what that meant.
“And I want you to be nice to Lee,” I cautioned him on the way to court. “We ’re having a business dispute, but it ’s nothing to do with you. He ’s still your godfather.”
“Oh, I have no problem with being nice to Lee, Dad,” Brent said. “I really hate Johnnie Cochran, though.”
“Oh, come on,” I said. “Johnnie ’s a very fine lawyer and very important to the team. I want you to be respectful, Brent.”
Brent was in a good mood. His hockey team had won the night before, four to one. As he had become more involved with competitive sports, he was learning to take hits, even to lose sometimes, to “play hurt,” as O.J. would say.
“Okay,” he said, a faint grin on his face. “I ’ll behave, Dad.”
In the weeks leading up to the trial, the other lawyers wanted to know what kinds of questions I was going to ask of the witnesses I would be cross-examining. The question a lawyer asks is dictated by the answer he gets on the question he previously asked. The process is somewhat like weaving, in that each thread is connected to the one that comes before it. I ’ve learned that I have to be flexible enough to go with the ebb and flow of a witness, yet focused enough to bring the testimony back to the center.
A lawyer may have a list of specific questions, because of course he ’s looking for specific information. Even though a judge will instruct a jury that questions are not important, only answers are, it ’s clear that jurors focus closely on lawyers and their questions and the manner in which those questions are asked. You can ’t get lost in the narrative, you can ’t lose the thread, or you fall into the trap of getting an answer that surprises you. In addition, there ’s the Golden Rule: Don ’t open up anything in front of the jury that can be used against you in rebuttal.
To me, every witness is evaluated and approached as an individual, relative to his or her specific role in a case, like a piece of the puzzle. Memory is flawed, recollection changes in tiny increments with each telling: A witness whose story plays exactly the same with each telling, like a recorded statement, is often giving a carefully constructed story, not a memory.
Some lawyers use the take-no-prisoners approach, where every witness is an adverse witness and should be discredited. Sometimes it ’s appropriate; more often, in my opinion, it ’s not. O.J. was often uncomfortable when a defense attorney unnecessarily took a witness apart. “Why are we beating up on this witness?” he ’d ask. “This is an honest person.”
In fact, there ’s a great risk in attacking witnesses, although you ’d think, by watching television, that it happens in every courthouse in the country. However, to the jury a harsh attack on a witness often reflects negatively on the lawyer and, by association, his client. When cross-examining a witness, lawyers must be careful to balance the need to impeach that witness with the need to bring out favorable information. A good cross can sometimes turn a witness for one side into a positive witness for the other.
When Johnnie �
�s game plan looked like it was going to involve only attack questioning, I gave serious thought to not doing any of the examinations at all. Alan Dershowitz talked me out of that almost immediately. And so on Friday, February 3, I would be cross-examining the prosecution ’s star witness, Denise Brown, Nicole ’s sister.
A defendant sitting in a courtroom is definitely in a Catch-22 position. If he shows his emotions, he ’s accused of being manipulative. If he ’s resolutely poker-faced, he ’s accused of being heartless and cold. And now, with television in the courtrooms, there was an additional reason to be self-conscious. Just as when Shipp was on the stand, O.J. was obviously frustrated by not being able to respond directly and point out errors in the way Denise told anecdotes about his life. He tried to make eye contact with her, and he shook his head whenever she said something he disagreed with.
Under direct examination by Chris Darden, Denise was emotional and teary. Nicole ’s acquaintance Candace Garvey had testified that at Sydney ’s dance recital O.J. was talking companionably to his friend Ron Fischman. However, Denise testified that he was alone and angry and looked “scary.” She also told of a night when she was with O.J., Nicole, and a group of friends, when O.J. grabbed Nicole ’s crotch and said, “This is where babies come from, and this belongs to me.”
“That ’s a lie,” O.J. said, loud enough to be heard by the visitors in the first row. “I would never say that. Nicole had C-sections.”
Denise ended her testimony that day in tears, telling of how in the middle of a fight, O.J. had picked Nicole up and thrown her against the wall. It was a vivid and troubling image, and the prosecution had timed it well: The jury would have the weekend to reflect on it.
The Search for Justice Page 25