Lydia Bodin then went methodically through the time line of terror. She cited over
sixty
incidents beginning in 1977, when Connie Good saw Nicole Brown in the elevator with two black eyes, bringing the court up through the IRS letter and the events on the afternoon of June 12. And all the while, O. J. Simpson rolled his eyes, looked disgusted, laughed, and joked with his attorneys. His behavior would have been scandalous even if he were innocent of these crimes. What did he feel he could gain, I wondered, by appearing so callous?
Within the week, Lance Ito handed down his ruling. The jury could hear about the 1989 New Year’s Eve beating. They could hear about the incident in 1985 where Simpson broke the windshield of his car with a baseball bat. They could hear about the 1993 call to 911 when Simpson broke Nicole’s door. They could hear evidence from Keith Zlomsowitch and others about how the defendant had stalked Nicole. And finally we got in that IRS letter.
That decision was hailed as a victory for our side. But I could manage only a feeble hurrah. For one thing, there was a lot of important stuff that didn’t make it in: Nicole’s journals (though privately I’d known all along this was a long shot). And there was the testimony of the witness named Nancy Ney, who’d answered Nicole’s call for help on the Sojourn hotline. These items were ruled hearsay and therefore inadmissible. But they weren’t the omissions that concerned me most.
Back in December the defense had complained that we’d given them the domestic violence stuff so late that they could not respond to it. In fact, Chris and his team pulled it together as quickly as they possibly could. It was just an enormously time-consuming effort—complicated by the fact that Faye Resnick, the one person who could help us with real leads, did not cooperate with us until October, after her book was published. To sanction us for this supposed tardiness, Ito split the testimony in half, forcing us to hold off revealing the older episodes of abuse—including Connie Good’s 1977 testimony, until later in the trial. Unfortunately, the power of these episodes was cumulative. You had to start from the beginning in order to see the pattern of pathological sadism. Lance had, once again, made a misguided attempt at compromise, and in doing so, he’d crippled our domestic violence case from its infancy.
On the evening the ruling came down, I joined my colleagues at the Saratoga to celebrate. Yet, as I slid into the Booth, shoulder to shoulder with my ebullient trench buddies, I felt miles apart from them. Chris, Scott, Lydia, and their adherents were right, of course. This
was
a case of domestic violence that ended in murder. But I knew from experience, both personal and professional, that the very mention of the words “domestic violence” aroused volatile emotions in people. There was no telling what kind of response they might elicit from our jury. The fact that most of our jurors were women was no comfort to me: female jurors often view victims of domestic violence with uncomprehending disdain. On top of this, we had the complications of race and celebrity. This did not mean that our female jurors couldn’t be brought around, but we would have to proceed cautiously.
If it appeared that the domestic violence evidence was alienating our jury, someone would have to make the strategic call to stand down. It would not be a popular move, certainly not within our office. But somewhere down the line a tough decision might have to be made. And even as I lifted a glass to victory, I realized the person to make it would have to be me.
It was barely ten days before opening arguments were set to begin. For several weeks now, I’d been channeling work away from Bill onto Chris’s desk. I knew that Bill was not feeling well, and I didn’t want to overtax him. Chris was worried that Bill would feel we were pushing him out.
“No,” I told him. “We just have to take some of the weight off of him for a while.”
Late one night in mid-January, Chris and I met in his office for an informal strategy session.
“Hey, G,” he greeted me, “pull up a chair.” Chris had started calling me G, for “gangster,” an expression of friendship and respect in his old neighborhood.
We were the only ones around. Out of his desk drawer he pulled two bottles: tequila for himself, Glenlivet for me. He poured us each a drink.
I ran down a list of witnesses in the order I envisioned presenting them. Chris would open with the domestic violence witnesses. Then I would be up with the next twenty or so witnesses, including Kato and Allan Park, whose testimony was going to be extremely complex. By now they’d both given so many statements, the task of collating them was daunting. Plus, I had to coordinate all the diagrams, charts, and photographs. It was like completing a giant Rubik’s Cube, where all the squares on each side had to match. Everyone else could compartmentalize, but I had to keep my eye on our overall strategy.
I’d given Bill the coroner, Dr. Irwin Golden, whose testimony promised to be a real can of worms. Hank Goldberg had agreed to take the criminalists, Dennis Fung and Andrea Mazzola, which was equally unenviable duty. Woody Clarke and Rock Harmon would do DNA. Chris wanted to pick up some of the physical evidence—which really was the heart of the case. But he had no special expertise in DNA, blood, or hair and trace; it would have taken too long to get him up to speed. That left him with nothing but domestic violence witnesses. These would go quickly. If he didn’t pick up some additional turf now, he would be effectively out of the case after the first week of trial. Chris didn’t want that; I didn’t either.
That left Fuhrman.
By now Fuhrman’s file was even fatter than when I’d first reviewed it, and infinitely more depressing. In addition to the psychiatrists’ evaluations of 1981 and 1982, there was now the witness statement from a realtor named Kathleen Bell, who had told defense investigators that five years earlier she had met Fuhrman at a marine recruiting station in Redondo Beach. He’d supposedly told her that if he saw a black man driving in a car with a white woman, he would pull them over. If he didn’t have a good reason, he said, he’d “find one.” Fuhrman, according to Bell’s account, went on to say that if he had his way he’d see all “niggers” gathered together and burned or bombed.
When I read that, I felt I might be sick.
In the months since the trial, some Monday-morning quarterbacks have claimed that I was arrogant for using Mark Fuhrman, knowing his downside. Exactly what was I to do? Close my eyes, click my heels three times, and will him to disappear? From the day of the murders, the defense had access to the police reports identifying Mark as the officer who found the bloody glove. If we hadn’t called him, they certainly would have. And in doing so they would certainly have explored his dark side. We would have been left looking like we were trying to hide him. As I saw it, we had no choice but to brass it out.
Chris and I had talked all the way through this one. Fuhrman’s racial views were not pertinent here. How he’d performed as a detective on the Simpson investigation was all that counted. The idea that he had planted the glove was utterly fantastic. Cops who arrived on the crime scene before Fuhrman had seen only one glove—not two—lying between the victims. What were the Dream Teamers planning to suggest—that Mark had slipped out to Bloomingdale’s to buy a mate?
Still, taking on Fuhrman stood to be extremely stressful.
“It can’t be Bill who takes him,” I told Chris. “It’s gotta be you or me. If you don’t want to touch him, I understand. This one is going to be a bitch.”
Chris was quiet for a moment, his shaved head buried in his hands. Then he looked me in the eye. No matter where we went with this, there was danger ahead. He knew I wouldn’t ask him to do anything that I wouldn’t do. He also knew I was carrying the entire weight of this case on my shoulders.
“I’ll take him,” he told me quietly. “But I’m telling you, that motherfucker better tell me everything, and I mean
everything
. I don’t want any surprises.”
I was praying for a miracle: namely, that Chris and Mark would hit it off. No such luck. They hated each other on sight. I wasn’t there for their first meeting, which was held in Chris’s office during the first or second week of January. But afterward, Chris came to me complaining that Fuhrman was arrogant. Mark, in turn, complained to Cheri that Chris was hostile and insensitive to his situation. I gotta hand it to Chris, though: he did not bail on me. He hung right in to argue a very unpleasant motion.
We knew that Johnnie and the Dream Team were angling to introduce Fuhrman’s disability file, and the Bell statement, which would allow them to argue that Mark’s “racial animus” drove him to frame Simpson by planting the glove at Rockingham.
I favored a preemptive strike. I wanted to get Ito to make a decisive call right up front that would foreclose this race strategy before opening statements—when I knew Johnnie would be trying to play that card for all it was worth.
It should have been an easy call. Other cops who’d arrived at Bundy before Fuhrman saw only one glove. There was
never
a second glove that Fuhrman could have picked up and transported to Simpson’s house! There was no evidence to show that Fuhrman had ever planted
any
evidence or done anything improper in the case at all. Unless the defense could come up with an offer of proof to show how he could have planted that glove, Fuhrman’s racial views, whatever they were, were completely irrelevant.
With Lance, our oral arguments never seemed to carry much weight. I knew our best shot was to get down on paper a motion that was persuasive and compelling enough that he’d convince himself of its wisdom
before
he got to court. So Cheri and I wrote and rewrote that motion.
I knew that it was good. The law was clearly on our side. The drafters of the state evidence code knew that jurors might not be able to resist a strong and irrational emotional reaction to something as inflammatory as a racial slur, even if it had no relevance. It was the very reason the code excluded evidence that was more prejudicial than useful in determining the truth.
There was no question that the lawyer who could most effectively argue the inflammatory effects of racial epithets—particularly the N-word—was Chris Darden.
Chris attacked this mission with righteous conviction. But the night before he was to argue it, he got a case of nerves. He came to my office, his eyes wide and apologetic, and asked for my help. I gave him what I myself would have used: a straight, rather formal, legal argument about how allowing in racial epithets would simply prejudice the jury and obscure the truth.
Then he totally threw out what I had written for him. And when he rose to the lectern on the morning of January 13, he spoke from the heart.
“There is no legal purpose,” he said, his voice rich with conviction, “there is no valid or legitimate purpose. But Mr. Cochran and the defense, they have a purpose in going to that area and the purpose is to inflame the passions of the jury and to ask them to pick sides, not on the basis of the evidence in this case… . The evidence in this case against this defendant is overwhelming. But when you mention that word to this jury or to any African American, it blinds people. It will blind this jury. It will blind them to the truth. It will cause extreme prejudice to the prosecution’s case.”
I sucked in my breath. Chris was taking on the race-baiters full in the teeth.
“I remember the first time I was ever called that word,” he continued. “I’m sure Mr. Cochran remembers the first time. And whenever I reflect back on that experience, I find it extremely upsetting and I probably appear to be getting a little upset right now. It is probably the most negative experience I have ever had in my life.”
I glanced over at Johnnie Cochran. Gone was the easy posture. He was tensed up, like a testy weasel. The chemistry between Chris and Johnnie, I thought, was becoming one of the uglier dynamics in this courtroom. Chris had respected Johnnie so much. But Johnnie didn’t respect him back. He couldn’t handle another smart and vital black male in the courtroom. Johnnie had played this bullshit race card at scores of other trials where nobody, certainly no white guys, had the
huevos
to call him on it. Now Chris was hitting him where he lived.
Johnnie rose to reply.
“I have a funeral to attend today,” he told the court. “But I would be remiss if I were not at this time to take this opportunity to respond to my good friend, Mr. Chris Darden.”
His “politesse” was tinged with sarcasm.
“His remarks this morning are perhaps the most incredible remarks I’ve heard in a court of law in the thirty-two years I’ve been practicing law. His remarks are demeaning to African Americans as a group. And so I want to apologize to African Americans all over the country.”
Apologize for Chris! I couldn’t believe what I was hearing.
What are you saying, Johnnie, that people can hear themselves slandered and feel nothing? If I heard that a witness had referred to women as bitches or cunts, do you think that wouldn’t affect me?
Now was the time for Judge Lance Ito to shut this travesty down. Any judge with the most rudimentary control of his courtroom would have said, “Don’t waste the time of this court, Mr. Cochran. Come up with a proffer to show how it was even possible for Detective Fuhrman to plant that glove. Until you do, we’re not talking about race in this case. O. J. Simpson didn’t kill her because she was white, and he did not get arrested because he’s black.”
But Ito let Johnnie flame on. The groundwork had been set for the defense to present for the jury a fantasy that had no place in a court of law.
Chris Darden appeared stricken. And what made things worse was the painful, public nature of his humiliation. The nakedness of it. With the whole nation—indeed, much of the world—watching, Johnnie Cochran accused a brother of selling out his race. What a despicable piece of shit!
I reached for the notepad and scribbled a note to Chris. “You were beautiful,” I wrote him. “You were great.”
To my deep astonishment, Ito did the right thing. In a ruling that was legally and logically sound, he stated that the defense would not be able to introduce evidence of racial animus unless they made an offer of proof showing how Fuhrman could have planted the glove. He even gave them a deadline: three days. If they could not come up with a proffer by nine A.M., Monday, January 23, there would be no N-words uttered in that courtroom.