Without a Doubt (42 page)

“It is going to be up to you, ladies and gentlemen. You are going to have to be ever vigilant in acting as the judges in this case. Each one of you is a judge. Each one of you is a trier of fact. You have to examine all the evidence very carefully and ask… ‘Is this reasonable?’ ‘Is this logical?’ ‘Does this make sense?’ . . .

“Your Honor,” Johnnie interrupted. “She is starting to argue now.”

“Sounds like argument to me,” Lance agreed.

The objection annoyed me, but I pressed on.

“My job is to seek justice,” I continued. “. . . You will have to remember what this case is about: justice for all. Ladies and gentlemen, if those words are to mean anything, we must all be equal in the eyes of the law and we cannot use a sliding scale to judge guilt or innocence based on a defendant or a victim’s popularity. We live in very, very strange times…”

Once again Johnnie broke in, “Your Honor, she is arguing.”

“Counsel,” Ito addressed me impatiently. “This has all been argument for the last five minutes.”

Now this may not sound like any big deal to you. But, believe me, it was a
very
big deal. In opening statements all that we lawyers are allowed to do is to lay out the facts, not attempt to persuade. The distinction, however, is often blurred. As a practical matter a judge will allow both sides considerable latitude in their openings. I felt my remarks were well within bounds. Johnnie was just prodding to see how easily he could shut me down—and, more important, if Lance would let him.

Lance did. He sustained the objection in such a cutesy, condescending way as to make it clear that he and Johnnie were on exactly the same page.

I tried to continue.

“We cannot succumb to the temptation to thwart justice and throw truth out the window.”

“I’m going to have to stop you right here,” Lance announced. And he dragged me over to sidebar—in full view of the jury—and scolded me for ignoring his admonishments.

Now, I’ll tell you what’s bad about that. It sends a message to the jury that the judge has no great respect for the prosecutor. And that’s a real unfair message to send—especially on the very first day, when the jurors have their antennae up, looking for clues as to whom to believe. Lance’s attitude toward me had a lot to do with his own ego. As an ex-prosecutor, he felt compelled to show us, “I used to do what you do and I did it better.” Whenever Johnnie rose to speak, however, Lance’s whole demeanor changed. He was beneficent. He was indulgent. It seemed to me Lance Ito just loved the idea of being Johnnie’s friend.

Lance still had me at sidebar. And now he was ordering me to “say ‘thank you, ladies and gentlemen,’ and wrap it up.”

I was seething. Nevertheless, I returned to the podium, smile pasted on my face, and delivered my parting line as gracefully as I could.

“Ladies and gentlemen. I want to thank you very much for your kind attention in this matter… . We all know it is difficult and we appreciate all of your dedication to duty and service in this case. Thank you very much.”

After I sat down, there was a minor hullaballoo. Court TV’s cameraman had inadvertently photographed an alternate juror. Ito went ballistic and threatened to pull the cameras from the courtroom. So much time was pissed away resolving this fracas that Johnnie did not get to begin his own opening that afternoon. There was much wailing and gnashing of teeth on the defense side about how unfair it was to the poor defendant to let the jurors go back to their rooms and dwell on the prosecution’s allegations overnight.

The fussing was just a smoke screen. In fact, we were about to be ambushed—but good.

Ito had ordered both sides to produce any exhibits they intended to use within forty-eight hours of opening statements. Our graphics people had worked into the wee hours of the morning to make that deadline. The defense guy in charge of discovery, Carl Douglas, had led me to believe his side was similarly squeezed. It wasn’t until the evening before Johnnie was to give his opening that Carl handed me some eight-and-a-half-by-eleven reproductions of the display they intended to use. Most were too smudged to be legible.

“You call this discovery, Carl?” I asked him, incredulous. After I showed him one particularly muddy page, he agreed to go over the particulars with me. “Just because I like you, my sister.”

Before we broke for the night, Carl mentioned that there might be “a few more… nothing major.” I was sympathetic to the problem of having to produce everything so quickly, so I asked him to let me see what he had first thing in the morning. He agreed.

Next morning, when I walked into court, I saw
fifteen boards
stacked against Deirdre Robertson’s desk. What the hell was this? There were about twice as many exhibits as Carl had shown me the night before. As I got close enough to read them, I was horrified. One entire display was devoted to the results of serologist Greg Matheson’s analysis of the evidence. This included the socks found at the foot of Simpson’s bed. Under a column labeled “Testing,” there was an entry that read “Blood search. [None obvious.]”

The quote was taken from Greg’s own notes. He made them in June 1994 after examining the dark socks for blood under natural light. He’d found “none obvious.” But then he scheduled the socks for a blood search. Several weeks later, after blood was found, conventional serology testing confirmed the blood markers belonged to Nicole. The defense display board juxtaposed the June finding of “none obvious” with the later results showing Nicole’s blood on the socks.

Now, why was this such a big deal? Because it played right into the defense’s conspiracy theory. If they could get the jurors to believe that there was no blood on the socks as of June, then the blood tested later had to have been planted. At my angry insistence, Ito made them change the labels on the board to reflect the truth. But he gave us only fifteen minutes to study the remaining exhibits. There was simply no way we could uncover and correct all the deceptions.

The imbroglio over the displays, it turned out, was just the warm-up number. When it came time for his opening, Johnnie launched into a flame that was one part sermon, three parts argument. It, like the exhibits, was shot through with misrepresentations. He called the jury’s attention to a report that showed that blood found under Nicole’s fingernails was type B. That was not her type; nor was it Ron Goldman’s or O. J. Simpson’s. Logical inference? The blood under Nicole’s nails must belong to the “real killer.” What Johnnie failed to share with the jury was the very next line in the report: “Nicole cannot be excluded as a source of blood if… type B observed on the items were degraded from BA [Nicole’s blood type] to… type B.”

Further DNA testing revealed that it was, indeed, her blood.

Johnnie rambled on and on, tossing out the names of witnesses who had never been introduced in discovery. This was strictly illegal. During the pretrial hearings, Judge Ito had sanctioned the prosecution for two-week delays between taking witness statements and turning them over to the defense. But the defense had been sitting on some of these statements for over seven months, seven months!! And they were introducing these witnesses only
now
—during Johnnie’s opening.

One of these lamers was Mary Anne Gerchas, who, Johnnie promised the jury, would testify that she saw four men—two Hispanic and two white—running from Nicole’s condo the night of the murders. Johnnie also promised that a mystery witness—a maid of one of Simpson’s neighbors—would tell how she saw Simpson’s Bronco parked on Rockingham right around the time of the murders. And then, of course, there was Dr. Lenore Walker, the so-called mother of the battered women’s syndrome, who would supposedly testify that O. J. Simpson’s abuse of Nicole was not the sort of violence that normally precedes a homicide. From the moment I heard that, I vowed to take the cross of Dr. Walker on myself. Of course, she evaporated, like so many of the phantoms Johnnie invoked during his opening.

Lance just let Johnnie run on. Chris and I were sitting at counsel table hissing to Bill. “Object! Object! Bill, are you going to object?”

At first Bill was reluctant to take off the white gloves. To Bill’s way of thinking, he and Johnnie were old buddies, going back to their days together in the D.A.‘s office. He thought civility would prevail. I knew better. Johnnie had nothing but contempt for Bill. He loved to see Bill walk into court. He made no bones about it. He’d grin at me and go, “Oh, good, you’re gonna let Hodgman do it? Good! Good to see you, Bill! Good to see you!” And Bill thought it was because Johnnie liked him. I’m saying to myself,
No, Bill, it’s because he thinks you’re easy pickins
. It was a painful thing for me to watch.

As Johnnie’s claims became more and more outrageous, even Bill finally began to burn. “I can’t believe this,” he would mutter over and over. “This is unbelievable!” Then, at last, he leaped to his feet and shouted “Objection!” with such conviction that we were all electrified. He really got up and fought for a change; it was wonderful to see. Bill kept objecting. Before Johnnie finished his outrageous tirade, Bill Hodgman had objected a total of twenty times.

Lance, the dunderhead, knew what was going on. If we had tried to pull even a tenth of what the defense pulled here, he’d have had us locked up. But he would not overrule Cochran. He just sat up there on the bench rolling his eyes at me like, “Can you believe it?” As if it were some big joke when the People get screwed. I wanted to scream at him, “You’re not some idle bystander here, buddy. You can actually stop this circus!” But how can you expect a clown to stop a circus?

Bill was seething when he left the courtroom. I stayed close to him all the way to the eighteenth floor. He had me very worried. He looked like he’d been through a shredder. His speech was incoherent—he was having trouble putting sentences together, and his breathing was very shallow. He couldn’t seem to sit still. He was ultrahyper, and Bill Hodgman has never been hyper. Gil had called an emergency meeting in the conference room. But no sooner had Bill walked in the door than he rasped, “I gotta go. I’ve got to take a walk,” and left.

Okay, he just needs a breather
, I told myself.
He’ll be fine
. Moments later I heard someone in the hall shout, “Down here, in Cheri’s office.”

Bill was lying on the rug. Cheri had made him lie down, he was so short of breath. Patti Jo was on the phone to the hospital.

I just stood there watching him and feeling guilty.
Oh, God
, I thought.
We shouldn’t have pushed him. Oh, God. I should’ve seen it coming. Oh, God, you know, this case is gonna kill him. This sweet, lovely man. I can’t stand this stupid fucking case!

Fortunately, one of those in our company was Dr. Mark Goulston, a physician friend of Gil’s who’d been hanging out with us since the case began. He was kind of the camp mascot. We called him Dr. Mark. I knew he had also been talking to Bill about the pressures on him. I pulled him aside to get a reading on Bill’s condition. Goulston told me that he had been giving Bill a very mild sedative to help him sleep. Today’s episode had been brought on by stress. Whether there would be lasting damage to his health, no one knew. Later, we would find out that Bill had a mild heart condition that, had it not been flushed out by this incident, might have killed him.

God
, I thought.
This job chews up strong men and spits out their bones
.

Don’t think I wasn’t tempted to throw in the towel myself. To go in to Gil and say, “I can’t do this anymore. Give it to… God, I don’t know who, just give it to someone else.” But I caught myself. How would I ever explain to my children why I walked out on the biggest case of my life? How could I ever look them in the eye and explain the necessity of seeing a job through to the end? What would I be teaching them? “Cut your losses, boys. Pick only those battles you can win.” That was not what I wanted to leave them. I wanted them to realize that sometimes honor demands fighting even to an almost certain defeat.

And how would I explain it to the Browns, to the Goldmans, who were expecting justice?

“Forgive me for doing this, Dr. Mark,” I said, turning once again to Goulston. “But I’m watching Bill, and I’m thinking, ‘I don’t want to go there.’ Could you give me a prescription for Xanax?”

I’d do anything I had to do; zonk myself into a coma if necessary. But I intended to stay in the goddamned ring.

E
xposure

After Bill’s gurney disappeared down the hallway, all of us, deputies and law clerks alike, milled around the War Room, stunned. I stood for a moment, as confused as any of them. Then I pulled myself together, marched back to my office, and shut the door. Cheri Lewis slipped in behind me. She thought I might want some company, but I was beyond talk. I paced for a while. Then, in direct violation of county rules, I lit up a Dunhill.

Cheri arched her eyebrows.

“So what are they going to do?” I snapped as I blew smoke toward the ceiling. “Send me Downtown and make me try the Simpson case?”

A knock on the door.

“Who is it.”

Gil poked his head in. I quickly stubbed out the cigarette.

Here was the man who’d told me to “lay back,” to “lighten up” a little. “Don’t be so tough,” he’d said. “Humor the judge.” But there was nothing conciliatory in Gil Garcetti’s expression now.

“Fuck him,” he said tersely. “Take the gloves off.”

No problem, Chief
.

The defense’s misconduct had made Ito look like a stooge for Simpson. Right after the hearing the public flooded our office—and presumably Ito’s as well—with faxes and telegrams venting their outrage at how badly we’d been treated. This kind of reproof wounded Ito’s pride and often caused him to veer wildly in the opposite direction. I figured he’d be pretty sympathetic to whatever we suggested in the way of sanctions.

If I’d wanted to play hardball, I could have demanded that every witness for which the Scheme Team had not provided discovery be excluded from testifying. Bye-bye to Mary Anne Gerchas, Howard Weitzman, and Skip Taft, among others. Exclusion is the most serious penalty—short of contempt—that can be imposed upon attorneys who have deliberately hidden witnesses to gain tactical advantage.