I could practically hear the cheers from the eighteenth floor. Now, I thought, we really have a fighting chance.
On Monday morning—put-up-or-shut-up day—Lee Bailey stood and, without so much as a by-your-leave, reopened debate on the subject of racial animus. That he was allowed to do so was completely improper. The ruling had been made! Yet Ito allowed Bailey to rave on, unchecked, about how the N-word went to Fuhrman’s credibility.
“I cannot imagine a clearer case,” Bailey blustered, “of the defense having an absolute and inalienable, indelible, irrevocable right to smash into any person so low-life as to make those utterances and then to proceed to the witness stand and attempt to incriminate for murder through these defalcations and sporulation a member of the African American race… . We’re not trying to prove that he planted anything because we don’t have to.”
(Bailey’s testimony sent me reaching for my Webster’s, which defines “defalcation” as “embezzlement” and “sporulation” as “the division of spores.” He may have been aiming for “spoliation,” which I see is defined as “the act of plundering.”)
In the face of this thunderous barrage of verbiage, Ito caved—and reversed himself. The defense could present witnesses who claimed to have heard Mark Fuhrman use the N-word within the past ten years.
I have never seen a man with so little spine.
If I had to point to the single most serious error that Ito made during this misbegotten spectacle, I would have to say that it was this inexcusable Fuhrman ruling. Race had no place in this trial. Once Ito had permitted the injection of racial venom, a conviction was remote, if not impossible. There would be at least one juror whose raw feelings would cloud his or her reason. From this point on, I sincerely believe, the best we could ever have hoped for was a hung jury.
I was both furious and demoralized. What we should do, I told myself angrily, was appeal the ruling to a higher court. It’s called taking a writ. But this was likely to be an exercise in futility. The Court of Appeals never likes to get involved in evidentiary decisions during the trial. In fact, I’d never heard of the prosecution’s winning one of those puppies. Besides, the real danger, of course, was that if I tried to get Ito reversed, he’d be so infuriated that he’d take it out on us for the rest of the case. Just what we needed—to alienate him hopelessly before we even reached opening arguments.
Looking back on this in the clear light of hindsight, though, I can see my reluctance for what it really was—a failure of nerve. I thought that if we could appease Ito and stay in his good graces, he would treat us fairly in front of the jury. If I’d known then what I know now—how he’d swat us around like stepchildren all throughout the trial—I would have taken that writ in the blink of an eye.
I didn’t realize that I had nothing to lose. I should have given it my best shot and taken the only opportunity I had to keep the defense from playing the race card.
I didn’t. And to this day it remains my most painful regret.
I was exhausted, feeling overwhelmed. Every night, I’d work till midnight, just shut the door and work. One afternoon I took a couple of hours off to get my hair done and I felt like a truant. Of course, I lugged along my law books to make the downtime count.
The next morning, I found myself mired in traffic. The rain was pouring down. I was totally frazzled. At home, my bedroom was leaking, my bed was soaked, and I kept getting sick. At court, they were about to hear a motion, but I was bumper-to-bumper in metal on the freeway. Ito was going to scream at me for being late, I knew it.
Everywhere I turned, I seemed to bang into a wall. There was Ito, increasingly cryptic and vain. He was starting to remind me of Marlon Brando in
Apocalypse Now
. There was Mark Fuhrman, either a bigot or a liar. There was the Brown family, avoiding us, but ladling out facts to a quickie biographer, and I’m thinking that the whole damned publishing world knows more about my case than I do. It was the most ridiculous situation I’d ever seen, and there I was stuck on the fucking Five, and every single thing I was seeing about human nature in this case was making me sick. I just wanted to cut out to an island somewhere, where I didn’t have to deal with anyone else.
For a while, I had been telling myself that once the opening statements were over, I could have some semblance of my family life back. But who was I kidding? Once the trial was under way, things would only get worse. Networks were going to devote their whole day’s programming to it. It was a goddamned industry. Without my having any say in the matter, I’d been turned into a symbol of Working Mother, Successful Professional, Voice of the People, Stand-in for Justice Itself. I took these things to heart and didn’t want to let anyone down. But, God, I was so tired.
On Saturday night, a little more than a week before trial, we were all bunkered into our offices, working. Bill came in to talk. He was unhappy. He confided that he felt he should retire as much as possible from the case; he felt very uncomfortable, he couldn’t relate to anyone or anything. “I don’t fit in,” he said, and I knew what he meant.
It was true. In one sense it was a woman’s case, it was a woman’s issue. In another sense, the defense had made it a race issue. Bill felt the jury would see him as a representative of the white male establishment, with no connection to the strong emotional issues of the case.
Chris felt he was in an ethical bind. He called me late one evening at home to fret about the Hodgman dilemma. We called each other more and more of an evening. I’d often talk to him while burning off tension on my exercise bike.
“We’ve got to give Hodgman some witnesses in the beginning of the case,” he’d insist.
Then I’d say, “No, don’t bother Bill. He doesn’t need it.” We just kept going round and round on this.
Right up to the last moment, the press and public assumed that Bill would make an opening statement. But it seemed awkward as well as cumbersome to divide the opening among three prosecutors. The way I envisioned it, Chris would lead off with the
why
of the crime, the motive: domestic violence. And I would follow with the
how
. A clean one-two punch.
There
was
work for Bill to do—and it wasn’t fun. It would be his job to question the coroner, Dr. Golden, whose reports were so flawed we didn’t want to flaunt them in the opening. The autopsies were also complex and difficult to summarize. In the meantime, we assigned to Bill the task of riding herd on Johnnie. Bill, sitting with us at counsel’s table, could register the objections whenever His Smoothness strayed out of line. That way, the jury wouldn’t become annoyed at Chris or me. Bill accepted this assignment with his usual grace.
The evening before opening statements, Chris and I went down to the courtroom for a practice run in front of Bill and a handful of others. I’d rarely seen the place empty like this: just a sterile cube of plywood paneling. It appeared to have been designed by a clerk, not an architect. Someone who had in mind a system for the shuffling of papers, but no grander vision of justice.
Within ten hours, the room would be the center of the world’s attention. Those empty counsel tables would be piled high with the notes and briefs of at least twenty noisy, combative attorneys. Each side would be scrambling to seize the advantage. Who would impose upon this unruly contest the ideals of morality and fairness? I looked to the bench and saw an empty chair. And I thought sadly how it always looked empty. Even when Lance was sitting in it.
My technical assistant, Jonathan Fairtlough, had set up the laser disc that projected both stills and moving images onto a large screen. I usually get up there with my charts, diagrams, and photos mounted on poster board. But Jonathan, bless his heart, led me by the hand into the modern age.
I wanted the jurors to feel physically drawn into the crime scene. I wanted them to travel up the walkway at Bundy. To see how the killer approached his victims from the bushes. I wanted them to see Nicole lying on her left side, feet wedged up under the gate. I wanted them to see her slashed throat. I wanted them to understand the physical reality of the space in which Ron Goldman had been trapped. He had been backed into a cage.
Then I’d let them see the detective’s-eye view at Rockingham. Entering the property; visiting the guest houses; discovering the brown leather glove. We would go straight up to the foot of O. J. Simpson’s bed, ending with a photo of the rumpled socks.
Originally, we wanted to have video footage interspliced with still shots, so that you’d be coming up the walkway at Bundy; then you’d see stills of her body, and then his body, and then the blood drops. It didn’t work; it was too jarring to come out from the video into the stills. When we strung together all the stills it was very powerful. But it had to be perfectly choreographed. Jonathan not only had to show each image at the appropriate moment, but had to segue from my voice into the picture. It was an elaborate little dance.
I had worked and reworked the presentation of the hair and fiber evidence. It was the sort of stuff that could be deadly dull or powerfully compelling. Finally, I got some rhythm going. I’d start with a straight presentation of the evidence, then I’d pause and highlight it with a challenge to reason. For example, “Nylon carpet fiber like that found in the defendant’s Bronco.
Stop
and
think
for a minute,” I’d say to the jury. “How could that fiber from the defendant’s Bronco get on the cap?” Then I’d hit it again with “The head hairs like those of the defendant were found at the Bundy crime scene.
Stop. Think
—how could head hairs like the defendant’s get on that cap?” Then I’d mention Ron Goldman, and note that the shirt he was wearing also had head hair on it like the defendant’s. “
Think
,” I’d implore them. “How did the defendant’s hair get on Ronald Goldman’s shirt?”
“It cannot be denied,” I would tell the jury, “that there will be a temptation to treat this evidence differently because of the image the media [have] created of Mr. Simpson—but we all know that what we see on TV is not evidence. Winning is not what this is about; this is
not
a game; this is about justice and seeing that justice is done. Two people have been brutally murdered—and the evidence points to the guilt of only one person as their murderer, Orenthal James Simpson.”
It was strong. I knew it was strong. Bill, Chris, and Jonathan—the whole team—were really jazzed.
January 23, 1995… opening day.
I can’t believe I really said that. Opening day! After a while I just got sucked into sports-speak like everyone else. I can’t remember what I wore, so don’t even ask. Before an opening statement, I trip into hyperfocus. The details of the goings-on around me don’t even register. What I do recall is that the team was extra thoughtful of me. Even the reporters in the hallway gave me ceremonious berth.
The courtroom was jammed, the atmosphere incredibly tense. It was the first time we had all been together: judge, prosecutors, defense counsel, media, spectators, and jury. Not to mention the millions out there watching the live feed. I tried to make eye contact with the jury. But my God, what a scary bunch. The Great Stone Faces, I came to call them.
Chris was eager, ready to go. But then we got bogged down in motions that dragged on through the morning and into the afternoon. A major bummer. His opening was held over until the next day. I prayed it wouldn’t throw him off stride.
The next day when he rose to speak, I knew he was nervous. Was he picking up negative vibes from the jury box? Was he making eye contact?
Make eye contact, Chris
. Until now, I hadn’t heard Chris’s opening in its entirety. It struck me now as eloquent, almost musical, as he described the love that was really a sickness:
“It is not the actor who is on trial here today, ladies and gentlemen, it is not that public face. It is his other face. Like many men in public [life], they have a… private side… . A private face. And that is the face we will expose to you in this trial. The other side of O. J. Simpson… We will expose… the face he wore behind the locks and the gates and the walls at Rockingham; that other face, the one that Nicole Brown encountered almost every day of her adult life…
“The evidence will show that the face you see… is the face or a batterer, a wife beater, an abuser, a controller,” he told the jury. “He didn’t hate Nicole. He didn’t kill her because he didn’t love her any more. He killed for a reason almost as old as mankind itself. He killed her out of jealousy. He killed her to control her. He killed Ron Goldman because he got in the way.”
If I had any criticism of Chris’s opening, it would be his insistence upon including Keith Zlomsowitch and several other domestic violence witnesses whom I wasn’t certain we would ever bring to the stand. “Always promise less than you deliver,” I’d told Chris. But he was headstrong. He didn’t always listen.
When it came my turn at the lectern, I paused. For a moment I just stared into those faces. Eight blacks. Two Hispanics, one man who professed to be half Native American, and a single white.
Will this thing really come down to race?
I wondered.
Are the impassive faces of the six black women on this panel hiding their resentment of me? Can I find some common ground here? Call a truce?
Coming on like gangbusters didn’t seem the ticket. In our strategy sessions up on the eighteenth floor, we’d all agreed that a calm, measured, rational approach was what was called for. Any hint of stridency would feed the perception of these jurors that we were out to lynch the defendant.
“You have now heard the
why
. Why would Orenthal Simpson, a man who seemingly had it all, commit such heinous crimes?” I began quietly. “The one simple truth about the evidence described by Mr. Darden is that it shows that Mr. Simpson is a man—not a stereotype—but flesh and blood who can do both good and evil. Being wealthy, being famous cannot change one simple truth: he is a person, and people have good sides and bad sides. Whether you see both sides or not, both sides are always there.”
Jonathan and I led the jurors through Bundy and Rockingham. The trip was flawless.