The Search for Justice

by Robert L Shapiro

  From watching her on the stand, I knew Denise was likely to cry at any opportunity, and I didn ’t want to bring those tears back. The prosecution suspected that I would be tough on her, and they hoped it would backfire on me. They guessed wrong. I didn ’t want to focus the jury ’s attention on me as the bad guy striking out at a vulnerable, grieving woman. Nor did I want to give her the opportunity to open a discussion of battered-woman syndrome, or outline her theory of these crimes. So my approach was deliberately soft, understated, respectful. There were some points I needed to make—for instance, that she herself had battled with a substance-abuse problem—but I didn ’t see a necessity to be cruel when I did it.

  Before I cross-examined Denise, I handed the prosecution almost one thousand pages that we had compiled from a database search. The pages contained everything said by and about Denise Brown since her sister ’s death. I was under no legal obligation to give the material to the prosecution, and I didn ’t intend to use any of it, but I wanted them to believe that I might. Perhaps they would overprepare her; perhaps it would put them all a little off balance.

  When I examined witnesses in the trial, I preferred not to use the center lectern but rather the same one the district attorneys used, an arm ’s length from the jury. When Darden had finished questioning Denise, he saw me head for the lectern. He turned and deliberately pushed it back against the prosecutor ’s counsel table and computer equipment, so that I couldn ’t get behind it and position it.

  “Excuse me,” I said evenly as we passed each other and the jury looked on, and then I moved the lectern forward again.

  The cross-examination went well, as quietly and subtly as I ’d hoped, although there was little question that this particular witness would have preferred to be at a beheading: mine. The questioning did nothing to disparage her character, but I managed to reveal factors that might have impaired or skewed her vision or ability to be objective about Nicole and O.J. Primarily, I wanted to emphasize that the physical abuse that Denise witnessed was limited, that at the time it didn ’t alarm anyone, even her sisters, and that often the incidents she witnessed were during times of considerable intoxication on the parts of all parties.

  When I went back to the table, Johnnie said, “Bob, you went too easy on her. What about all the information in the file about her private life? We need to discredit her, and I need something concrete for the closing statement.”

  “Look,” I said to Johnnie, “if you want to ask that kind of question, then you do the recross. It ’s a bad idea, and it ’ll open up stuff we don ’t want to open up.”

  “O.J. ’s the client,” Johnnie argued, “and you have to listen to the client.”

  “I ’m the lawyer,” I said, “and the client should listen to me.”

  “Don ’t be such a baby,” said Cochran.

  I had come to understand the fundamental difference in our philosophy of client representation. Johnnie always told O.J. what he wanted to hear. My position had always been that the client hired me to be the lawyer. Just as I insisted my client tell me the truth, I was determined to tell him the truth as well. It wasn ’t always happily received.

  Johnnie didn ’t take me up on my offer to do the recross; I did it. Denise ’s testimony that O.J. looked scary at the recital, that he looked like a “madman,” gave me the opportunity to show the home video that we ’d received only two days before from the prosecution. It revealed a smiling and relaxed O.J. after the recital, warmly shaking hands with Lou Brown, hugging his son Justin, and being affectionately kissed good-bye by his former mother-in-law, Juditha, and by Denise herself.

  When I got back to the table, I said to O.J., “Look, I ’m sorry I got pissed at you, but I can ’t always make decisions just to please you.”

  “No problem, Bob,” he said. “Sometimes you just have to get in my face.”

  Chapter Fifteen

  On February 7, we lost another juror. That day, the prosecution presented crime scene photographs, including pictures of the two victims that had never been shown outside the courtroom and by court order could not be broadcast by the television cameras. Once again, O.J. looked away.

  Police Officer Robert Riske, the first cop on the scene, testified that he arrived at 12:09 A.M. “I called my watch commander and told him we had a double homicide and that O.J. Simpson was somehow involved.” He knew this, he said, because he could see a large picture of O.J. inside the house, and when he used the phone in the kitchen (without putting on gloves or dusting for fingerprints) he saw an envelope with O.J. ’s name and return address. He then called the detectives.

  On cross-examination, Johnnie Cochran elicited information from Riske that showed that the crime scene was improperly secured—no gloves and booties on officers, no dusting for prints. Although if they ’d found O.J. ’s prints, it would ’ve been no surprise. In his initial statement to police, O.J. told them, “Oh, Christ, I ’ve slept at the house many, many, many times, you know? I ’ve done everything at the house, you know? Roughly, I was in her house maybe two weeks ago, ten days ago.”

  That day Bill Hodgman returned to work, as the out-ofcourt case manager of the Simpson trial, and still holding his position as district attorney ’s director of the bureau of central operations. We would see him in court only sporadically during the trial. I was sorry not to have had him at the prosecution table every day; he was a steadying influence not just to his own team but to all of us.

  On February 12, a Sunday, the jury went to view Rockingham and Bundy. Everybody went—the prosecution, the defense, Ito (in a car by himself), O.J. (in a car with deputies), more deputies, and the jury (traveling on a bus with blacked-out windows). This had to rank as one of the strangest field trips any of the participants had ever taken, using the bus and thirteen other vehicles to move from place to place, with citywide security rivaling that of a presidential visit. From beginning to end, the trip went without a hitch, impeccably planned and carried out by Judge Ito and the police and sheriff ’s departments. I couldn ’t imagine how much it must have cost to put the expedition together.

  When we gathered at the courthouse before leaving, I was met by Gloria Allred, who walked up and handed me some kind of document. The cameras immediately started whirring. “Gloria, did you come all the way here on this Sunday morning to serve a lawsuit on me?” I asked.

  It was a request on behalf of the Brown family that O.J. not go into the Bundy residence. However, this had been arranged before Allred ’s letter. It was not a photo op any of us wanted. Instead, O.J. stayed in the police car about a block away.

  Dominique Brown was at Bundy as a representative of her family, and she stood outside, very forlorn and solitary as the jury went through the condominium for two hours. Walking through the rooms four at a time, the jurors were very solemn. They didn ’t make eye contact with any of us, and no one was allowed to talk, although some jurors took notes. The apartment was silent and empty, and it was difficult to shake off the feeling of melancholy after everyone had left.

  By contrast, O.J. ’s home was decorated with fresh flowers and family portraits and was filled with a sense of life. His Heisman trophy was on display, and the children ’s rooms were bright and cheerful, as though they ’d just been there. It gave a radically different impression from the starkness at Bundy. “You might ’ve made a mistake bringing them here,” I said to Scott Gordon, one of the young prosecutors who ’d come along.

  O.J. was happy to be at Rockingham, in spite of the fact that his constant companions were members of the sheriff ’s department and the L.A.P.D. He went through the house in much the same way the jurors did, looking closely at the mementos, stopping occasionally to take it all in. “Who would give all this up?” he scoffed. “Who would jeopardize this kind of life, this kind of family?”

  He pointed out the play area he and Nicole had designed for the children, with its swing set and a large sandbox. “That ’s where I practiced my golf swing,” he said.

  On Mond
ay, I learned from Carl Douglas that Johnnie had decided Lee Bailey would cross-examine Mark Fuhrman. I was surprised about this, telling him that surely nothing could ’ve been more powerful than a black man asking a white officer whether he had any racial bias, or asking if he ’d ever used the term “nigger.”

  But Carl said that Johnnie didn ’t want to examine Fuhrman because “he didn ’t want to have blood on his hands or get a negative reaction from the community.” Cochran had had an uncomfortable run with publicity lately. There had been a rash of tabloid stories about his personal life and his relationships. He was cautious about making moves or taking steps that could be misinterpreted or exaggerated in the press.

  I had the same response to headlines about Johnnie ’s private life as I did to headlines about mine: It was none of anybody ’s business who we were when we weren ’t in a courtroom. Let them hack away at our strategy or our presentation or even our wardrobes if they wanted. Our private lives should have been left alone.

  On February 16, O.J. talked all during Marcia Clark ’s examination of Detective Ron Phillips. Johnnie would do the cross the next day. Phillips testified that the police had spent the better part of an hour looking for O.J. ’s phone number, when Nicole ’s phone had a speed-dial button clearly marked “Daddy.”

  There were many sidebars during that session, and too much off-the-record yakking, with Judge Ito steadily growing more impatient. I was wearing a pin on my suit lapel that said “sidebar” with a line drawn through it. I had little hope of it being taken literally. Each day seemed longer than the one before it, and we were still early in the process.

  Typically, I ’d arrive home a little before seven P.M., unless we had a meeting after court. If one of the kids had an ice-hockey game, I ’d feel guilty for not being able to go; if they each had one, Linell had to figure out how to be in two places at one time and would head off in two different directions. If there were no ice-hockey or social obligations (and those had been severely reduced once the trial began), I ’d try to take a quick nap, box from eight to nine-thirty, and have a light supper with my wife. Then I ’d review the day, check my messages from my office, prepare for the next day ’s witnesses, and head for bed just after midnight. Luckily, I was able to go to sleep instantly during this time, because it was as close to a competitive training schedule as I ’ve ever been on, and insomnia would ’ve just about killed me.

  When we came back for Ron Phillips ’s second day of testimony, I found that although he was present in court, he ’d spent the previous night at the hospital, with chest pains. He ’d had a bypass the year before, and even his cardiologist had advised him not to get on the stand this morning. Marcia Clark suggested that we all go easy on him because of his heart condition, and the fact that we ’d basically put him in the hospital the night before.

  “Marcia, you ’ve had him on the stand for a day and a half,” Johnnie said. “If you want him off, stop asking questions.”

  “Are you sure you ’re all right?” I asked Phillips.

  “I ’m fine,” he answered. “I have to do my job, and this is part of it. I appreciate your asking, though.”

  Johnnie ’s cross of Phillips was relatively gentle. Although he ’d been Mark Fuhrman ’s partner, and was with him during the crucial early hours of June 13, there was no point in telegraphing our strategy. We were willing to save the fireworks until later.

  It appeared we were going to lose another juror, Michael Knox. When he ’d worn a San Francisco ‘49ers ’ jacket on the field trip to Bundy and Rockingham, I thought that alone would get him kicked off the panel, but Judge Ito had found that he had been negotiating for a book, and reportedly had told someone on the jury that an acquittal would guarantee more money. In addition, there was some concern that he ’d once been arrested for spousal abuse, which he hadn ’t disclosed on his questionnaire.

  The judge had requested Knox ’s divorce file to see if it referred to this incident. When Marcia Clark said “I wouldn ’t want anyone to see my divorce file,” Judge Ito quipped “It ’s too late, Marcia, they already have.”

  We ’d heard that one or more television stations had hired lip-readers to watch O.J. in court and report on what he said at the counsel table. They reported that when the blue cap found at Bundy was entered into evidence, O.J. smiled. His friends had always joked about the enormous size of his head. “That cap wouldn ’t fit me,” he said.

  “No cap would,” I joked.

  The term for what fighters or ball players do when they bait each other during the game, using profanity and personal insults, is “talking shit” or “talking trash.” In all my years in court—and all my hours at the gym—I had never heard more trash-talking than what constantly took place between Cochran and Darden, especially at sidebar conferences.

  “You ’re an embarrassment, you ’ll never be allowed back in the neighborhood,” Johnnie would say to Chris.

  “I wouldn ’t even want to go into your neighborhood,” Chris would answer.

  “Can I get the rights to these outtakes?” I once asked Judge Ito.

  “That ’s what I like about you, Bob,” Ito said, laughing. “You ’re always thinking.”

  On February 22, Chris Darden examined Detective Tom Lange; for the following two days, Johnnie did the cross. Ito gave him a tremendous amount of leeway, allowing him to ask very detailed questions on police procedure. The jury heard two key details from Lange: that plastic bags weren ’t immediately put on Nicole ’s hands to preserve trace evidence, and that the coroner didn ’t arrive at the scene for ten hours.

  At one point, Cochran asked Lange about Sydney Simpson ’s statement to the police that “Mommy was talking to her best friend and crying.” We suspected this was a reference to Faye Resnick, who had been staying with Nicole recently and had gone into a drug rehab a few days before the murders.

  Clark immediately went to a sidebar, saying, “The only witness for that is Sydney, and she ’s not on your witness list.”

  “Well then, I ’ll put her on,” Johnnie said.

  “You know you ’re not going to call her,” Marcia scoffed. “O.J. would never let you call her.”

  “I ’m running this case, I ’m going to do what I want,” Cochran snapped. “And if you people were real lawyers, you ’d stick to trying your own case.”

  That got to Darden. “He thinks he ’s the only lawyer in the world, Judge,” he said angrily. “Well, he ’s not.”

  “Mr. Darden, stop now,” Ito warned him.

  “He ’s out of line, Judge,” argued Darden, “and you shouldn ’t allow this.”

  “I ’ve warned you,” Ito said carefully, “and I ’ll warn you again, Mr. Darden. If this continues, I ’ll hold you in contempt.”

  “Go ahead and hold me in contempt,” Darden said.

  Ito dismissed the jury. “Now take three deep breaths, Mr. Darden, and calm down,” he said after they ’d gone. “And then come back when you can make an appropriate statement to the court.”

  Darden adamantly refused to apologize. Marcia Clark came back to plead on his behalf, but Ito wouldn ’t hear it. “If you ’re his lawyer, fine. If he wants another lawyer, fine. But I invite him to settle this quickly with a simple apology, or he ’ll find himself in contempt. Those are his choices.”

  Everybody was always fighting for the last word, rather than the most effective one, and Clark was the worst offender. If a ruling went against her, she ’d continue to argue, until Ito would use a version of his increasingly familiar “That ’s enough, Miss Clark!” This time even Bill Hodgman got involved, and the three prosecuting attorneys stood talking together for a few moments. Finally, Darden gave in and apologized to the judge; Ito, in turn, apologized to Darden. The press reacted like it was the most important moment of the trial so far. I assured the reporters that it had absolutely no substantive effect whatsoever, and we needed to move on.

  We didn ’t get much more accomplished with Lange that day, since the prosecution was
constantly interrupting. Cochran continued to bait both lawyers; Clark responded by trying to laugh him off, Darden by making more tense and angry objections. While Ito had made it clear that he wasn ’t going to tolerate disrespect for the bar, it looked like he was going to allow the defense as much latitude as the prosecution in dealing with witnesses. For a judge with a pro-prosecution history, that was a pleasant surprise.

  Gil Garcetti had announced to the press that even if the jury came with an eleven-to-one hung jury for acquittal, he ’d retry the Simpson case. I was sure that if that happened, the prosecution wouldn ’t want us all standing again in front of this judge.

  Rosa Lopez, constantly harassed by the press, kept saying she was going to go home to her native El Salvador. On February 23, the day before she was scheduled to appear, we discovered that she ’d evaded the Pinkerton guard we had hired to keep an eye on her and was nowhere to be found. I never believed she was key to our case, and I didn ’t relish the idea of how we ’d look if a much-touted witness simply evaporated.

  For days, Lopez had alternately begged and threatened to leave. Judge Ito could have ordered her to stay, but the only way he could actually prevent her from leaving was to put her in jail, which none of us wanted to happen. On the scheduled day, Lopez arrived in court. Since she was a witness for the defense, her testimony would ordinarily not have taken place this early in the trial. However, it was agreed that she could testify out of order and that her testimony would be conditional—that is, it would be videotaped and not shown to the jury unless and until the defense attorneys decided it was strategically wise. This was very important for us, since it allowed Lopez to testify under oath, but absent the jury. We could evaluate her testimony, decide if it hurt or helped, and then make the determination as to whether or not we would put her on in front of the jury.