The Search for Justice
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“Ms. Clark, you ’re flirting with contempt,” he said. “If I hear you use that word again, you ’re gonna spend the weekend in jail.”
In answer to Bailey ’s final question, Detrick finally admitted, “The courts have never recognized hair examinations as a positive means of identification,” and he paused slightly before he continued, “and we don ’t either.”
Marcia Clark was back to flirting regularly with Johnnie Cochran, and he was back to responding. Once at a sidebar conference, she said to him, “You just call these sidebars so you can stand next to me.”
The flirtation was obviously galling to O.J., who didn ’t see it as being the harmless pastime Johnnie kept claiming it was. If the jury was noticing, it was a confusing message for them to get.
I told Johnnie his behavior wasn ’t going over, at least not at the defense table. “You do this cutesy shtick with her, and walk out of the courtroom with her, and every time you do, O.J. gets pissed,” I said.
Cochran just smiled. “I ’ll handle O.J.,” he said.
The prosecution was preparing to rest its case, and the defense team was trying to decide whether or not to make what ’s called a 1118 motion. This is a motion to dismiss because the prosecution has not proven its case to a degree that an appellate court would uphold a conviction in the event there was one. The defense generally makes this motion for the record, knowing that it won ’t be granted but that it will protect appellate remedies.
“There ’s no chance of the motion being granted,” I said. “Ito won ’t dismiss this case without letting it go to the jury. And then the press will have ‘Defense Loses Motion to Dismiss Case ’ as a headline tomorrow morning. There ’s no upside to it for us.”
Ultimately we made a very perfunctory motion, not a written argument, and it was, as expected, summarily denied. On July 6, after ninety-two days and fifty-eight witnesses, the prosecution rested its case.
Chapter Twenty
One of the most important factors in a defense case is the demeanor of the defendant around the time of the crime. How did he look? How did he behave? Witnesses who can testify to these questions from their firsthand knowledge are called “demeanor witnesses.”
Fortunately, the way O.J. had appeared near the time of the murders was one of our strongest points, and key to that was the video from Sydney ’s dance recital, which went so far to contradict prosecution witnesses who testified that he was out of sorts, angry, hostile, and preoccupied. This was a genial man, who had a relaxed and affectionate relationship with his former in-laws, and was obviously comfortable sharing this family event with them. Witnesses on the plane flight to Chicago would testify that they saw nothing out of the ordinary; witnesses on the flight back would testify that his behavior— the phone calls, the agitation—were in tune with what they would ’ve expected, given his situation. Close family and friends would talk about his behavior at home, before and after the funeral.
O.J. Simpson had prided himself on discipline. It took discipline to sit in court day after day and not crack, and to maintain his sanity as he returned to his cell alone each night. I ’m sure there were days he was tremendously sad, or depressed, or angry, but he wouldn ’t want anyone to see this. It wasn ’t how he had been brought up, and as best he could, he stayed “up,” at least in public.
When the prosecution finally rested its case, the emotions O.J. had worked to keep under control hit him. This was what he had been waiting for. Their turn was over, and his turn was coming. As he reviewed our demeanor witnesses and we discussed the kinds of questions we would ask and the information we wanted the jury to hear, he grew very emotional.
“If we could guarantee a hung jury, would you rest the case now?” I asked him.
“No!” O.J. said adamantly. “No, absolutely not. I want to win. I feel like I could cry. But I ’m not going to cry in front of this jury.”
Shortly after the Fourth of July weekend, our investigator Bill Pavelic informed me that a friend of mine, a lawyer from San Francisco, had called him several times about Mark Fuhrman.
This lawyer was someone Bill had worked with before, on my recommendation. The lawyer was aware, as anyone paying even mild attention to the case would have been, that Mark Fuhrman was of key concern to the defense team.
“A lawyer in Los Angeles is offering to sell audiotapes of Mark Fuhrman that will blow your case wide open,” our contact told Bill. He had heard this from two tabloid reporters, who were as curious to hear the tapes as one might expect but who were also concerned about being victims of some kind of scam.
The Los Angeles lawyer ’s name was Matthew Schwartz, and he represented someone named Laura Hart McKinney. She was a screenwriter and had recently interviewed Fuhrman as part of a film project she was trying to develop about Los Angeles cops. Schwartz stated that the tapes contained many, many examples of clear perjury on the race issue, and the use of the nword in particular. Furthermore, they were a police “textbook” on framing blacks and planting evidence. There were fifteen hours of tape, approximately three hundred transcript pages. The bidding price of these tapes was slated to start at $250,000.
A licensed attorney making these representations would expose himself to major criminal liability if he was trying to perpetrate a scam. I tried to maintain my own skepticism while hoping all the while that Schwartz and his tapes were for real. I instructed Bill to pursue whatever avenues he could to find out if the tapes existed, and if they actually contained what the lawyer and Schwartz said they did. Bill Pavelic needed to act as fast as he could. If what the lawyer was telling us was true, I figured we had about one day to stay ahead of a tabloid bidding war. I didn ’t intend to meet or match anybody ’s price; I wanted the tapes subpoenaed.
Pavelic was told how to contact Matt Schwartz and Laura McKinney. In turn, Bill instructed the lawyer to call Carl Douglas and investigator Pat McKenna. Douglas would prepare the subpoena; McKenna was supposed to serve it. However, Gary Randa, Cathy Randa ’s son, got the subpoena assignment instead. When he went to Matt Schwartz ’s office, he was told that Schwartz was “on vacation.” The person who told him this, we later discovered, was Matt Schwartz, who evidently wanted to keep the bidding war open.
The television tabloid show Hard Copy knew about the tapes; so, suddenly, did a lot of reporters. It was time to go directly to the source—McKinney—and to do that we had to go to North Carolina, where she now lived.
While the drama of the tapes was going on outside the courtroom, the defense team was considering whether or not O.J. should testify. He thought he was ready. He wanted to tell his side of the story from the beginning. But the advice that we would give him would be the most difficult decision a lawyer must make.
Early on, both Cochran and Lee Bailey had taken a public position that O.J. should and would testify. But as the defense began its case, that decision still hadn ’t been made.
Jurors expect people who aren ’t guilty to testify and explain themselves, correct the misapprehensions, tell their story. No matter how many times the jurors are instructed and reminded that a defendant has no obligation to testify, our voir dire and focus groups showed that almost everyone wants to hear a defendant testify.
We had seen some of the world ’s best witnesses, both scientific and police, people who testify on a day-in, day-out basis, who have been on the witness stand hundreds of times. Yet, when put under the microscope of cross-examination, they were shown to have made inconsistent statements that lawyers later argued were a basis for disbelieving the witness or outright impeaching his credibility totally. But how do you tell a strong-willed man who has proclaimed his innocence for fifteen months that he should not testify?
For his part, O.J. was concerned about the jury ’s stamina. “I don ’t think they can take much more of this,” he said. “They ’re exhausted. I ’m afraid we might lose them.”
Ultimately, the defense lawyers unanimously decided that O.J. would not testify, and he concurred with that deci
sion.
As we were preparing the defense case, O.J. was quoted in the New York Daily News as saying, “I ran two thousand yards in the snow, I can handle Marcia Clark.”
“He said that in the lockup. How did it get out?” Johnnie asked. How do you think? I wanted to say. Bailey was back in town.
The gears shifted considerably once the trial went to the defense part of the case. It seemed less frantic, less formal. Judge Ito, for the first time, was wearing jeans and sneakers under his robe. Witnesses would now come to the stand on behalf of O.J., not against him.
From here on, the defense strategy was to present credible demeanor witnesses to undo the prosecution ’s “demonization” of O.J. and timeline witnesses to refute the prosecution ’s theory of when the murders took place. Drs. Baden and Lee would then further counter the prosecution ’s forensic witnesses, arguing that errors in procedure and judgment had created a scenario that was possible, but not provable. Meanwhile, outside the courtroom, we would continue to pursue the Fuhrman tapes, with the intention of using them to impeach a key witness in what I hoped the jury would see as a hopelessly contaminated case.
On July 10, Arnelle Simpson was the first witness on behalf of the defense. A beautiful and charming young woman, she radiated the love and trust she had for her father, and he beamed across the room at her as she testified. She spoke very movingly about his shock and sadness at Nicole ’s death. She was a perfect, unimpeachable witness. The prosecution knew that and left her alone on cross-examination.
The next witnesses were O.J. ’s sisters, Carmelita SimpsonDurio and Shirley Baker. They had been totally supportive of him, spending each day in the courtroom while keeping their jobs at night. They each gave a chilling view of what it had been like at O.J. ’s house the night he came back from Chicago—sorrowful, depressing, everyone crying, looking for an answer. They effectively disputed Ron Shipp ’s testimony, testifying that they ’d kept a very close eye on their brother that night, and O.J. had never been alone with anyone.
It wasn ’t so much what O.J. ’s sisters said or even how they said it, but their presence was a powerful endorsement of their brother. “He was always there for us,” they said.
And finally, there was O.J. ’s mother, Eunice Simpson, who, in spite of advanced age and failing health, had sat patiently in her wheelchair for days at a time in the courtroom. While there, she had often been warm and affectionate toward the Brown family, as they had been to her. The families, after all, shared their grandchildren in common.
Mrs. Simpson looked elegant, dressed in shades of yellow, conveying serenity and faith in her son. Kardashian and Cochran opened the low swinging “bar” doors that separated the lawyers from the spectators, and helped her out of her wheelchair. Like the stoic she was—and like she ’d taught her son to be—Mrs. Simpson would not allow anyone to help her, using her cane to take minuscule steps to the witness stand under her own strength and power.
She talked with great dignity about her son ’s life, his upbringing, and her special moments with him. She evoked a palpable love and empathy in the courtroom, and a sadness that she had seen her son go from the championship field to being a defendant in a murder case.
We began our timeline witnesses with a young man named Dan Mendel and a young woman named Ellen Aronson. They had been on a blind date the night of the murder and had walked past the Bundy residence at 10:30, only a few minutes after the prosecution said the murders were being committed and the dog supposedly began wailing. Both testified that they neither saw nor heard anything unusual as they passed. Their testimony was simple and unequivocal.
Denise Pilnak, a Bundy neighbor, was another timeline witness. Pilnak was so time-sensitive that she usually wore two wristwatches, she said. Yes, she ’d heard the dog barking, but not until 10:35. Until then the neighborhood had been quiet.
I had some reservations about Robert Heidstra, the next timeline witness, who was also a Bundy neighbor. I was concerned about his credibility. According to Lee Bailey, who had talked to him extensively, Heidstra didn ’t hear the dog barking until precisely 10:37. He ’d heard men ’s voices as well, raised in an argument in front of Nicole ’s apartment at that time. I was worried about that kind of absolute precision, which is easy to impeach. Bailey assured us that Heidstra would be a good witness.
Heidstra, of French birth, had a very thick accent. Either he had trouble understanding the attorneys or they had trouble understanding him. Whatever the reason, his testimony came across as halting, equivocating, and confused. He further complicated matters by stating that he had seen a light-colored sports utility vehicle speeding away from Bundy. He couldn ’t say what exact make of car it was. However, he stated that it drove down Bundy when it left, which would mean the driver was going away from, not toward, O.J. ’s house at Rockingham.
It ’s hard to say who won the Heidstra round, but I regretted that he ’d been a witness for us. We should have known more about him, more about his background, and more about what he was going to say. During the next break, we were livid with Bailey. He had vouched for Heidstra ’s credibility; clearly, his judgment was off.
While Chris Darden was cross-examining Heidstra, the witness at one point agreed with Darden that, yes, one of the voices he ’d heard was a “black” voice. Cochran immediately objected to what he called Darden ’s “racist” questioning.
“It was the witness ’s word,” said Darden. “If it ’s racist, then it ’s the witness that ’s racist, not me.”
Cochran continued to argue, and so did Darden.
“This is what created a lot of problems for myself and my family,” Darden said angrily, “these statements that you make about me and race, Mr. Cochran.”
I thought Ito was going to physically come down from the bench and break it up. “We ’ll take a recess,” he said, “because right now I ’m so mad at you guys, I ’m about to hold you both in contempt.”
I always thought that Darden had the second-toughest job in the courtroom. As a black man working for the prosecution—in a case that increasingly focused on race—he was caught in an almost constant bind. Johnnie ’s incessant baiting just intensified things.
But the most difficult job in the courtroom was Judge Ito ’s. Each lawyer had the benefit of a team of researchers and the advantage of having studied the evidence for more than a year. He had a research assistant and a couple of volunteer law students. As he heard the evidence for the first time, he had to make his rulings spontaneously from the bench, with the whole world watching him. When the criticism of him came, as it invariably did on an almost daily basis, the rules of judicial conduct prohibited him from doing what the rest of us did: walk out into the hallway and explain what had just happened in the courtroom and why.
That night, Johnnie and I met with Matthew Schwartz, Laura Hart McKinney ’s attorney. He outlined the material contained in the tapes of Fuhrman. “They ’re important, and we know you ’re going to get them,” he said. “We just want the opportunity to try to sell them first.”
Once we ’d heard about the existence of the tapes, both Johnnie and I immediately began to fear they ’d be destroyed— which could lead to an obstruction of justice. Schwartz understood our concerns. His client was honorable, he said, and wouldn ’t do anything to undercut our case. She just wanted to explore the financial possibilities before the tapes became public and ceased to be of any value. We pledged that we would try not to subpoena them for a week, and in the meantime they would be kept in a safe. The safe was in McKinney ’s home, in North Carolina.
While the Fuhrman discussions took place offstage, the trial continued. For three days in mid-July, Dr. Rob Huizenga testified to O.J. ’s physical health. His osteo- and rheumatoid arthritis was quite serious, Huizenga said, and seriously limited his ability to move back and forth—laterally—even if O.J. ’s appearance belied that.
“He looked like Tarzan,” Huizenga said, “but he moved more like Tarzan ’s grandfather.”
In order to rebut Huizenga ’s claim that O.J. ’s arthritis was serious, the prosecution played the exercise video O.J. had made just a few weeks before the murders. The video showed that O.J. could indeed raise his arms and move up and down, but he was quite limited in his capacity to move laterally, as Huizenga said he was. In fact, O.J. was working hard in the video to show he wasn ’t impaired by the disease that had so crippled his mother. “He did not want to see himself as arthritic,” Huizenga testified. Richard Walsh, the physical trainer who directed and produced the video, would confirm Huizenga ’s view.
The press reported that Huizenga ’s testimony and the video were setbacks for the defense, but I wasn ’t so sure of that. Although O.J. appeared in high spirits on the tape and exuded great energy, there was a plodding quality to his movements, an absence of quickness and flexibility. I wondered if the jury tried to imagine him leaping over the back fence at Rockingham, dropping the glove, running into the wall, sprinting into the house, and making his limo in time to get to the airport. From the tape, I couldn ’t see it. I didn ’t think that they would, either.