Without a Doubt (43 page)

Tempting as this was, such a demand would have been counterproductive. For one thing, exclusion posed an appellate risk. Preventing witnesses who might offer material evidence from testifying is arguably an infringement of a defendant’s Sixth Amendment right to a fair trial. All things considered, I felt that it was more equitable to let the disputed witnesses come to the stand—provided we be allowed to let the jury know how they’d been illegally hidden from them. This way they could make up their own minds about these folks’ credibility.

I figured Lance would give us that much. But I wanted more. I intended to request that he allow me to reopen my statement: do a second opening! This would let me expose at least some of Johnnie’s misrepresentations—that this was a drug murder, that the defense had proof of a second assailant, that Simpson was at home during the time of the murders. But I had no idea if there was any legal precedent for this. Never in my fourteen years of practice had I heard of it happening.

I buzzed my law clerk, Dana Escobar.

“Dana,” I told him, “I’ve got a tricky one for you.”

“No problem, boss.” He and a handful of other clerks set to work. Amazingly, within the hour, they had pulled up a 1964 civil case in which the court had allowed the reopening of the statement. Cheri and Hank commandeered a corner of the War Room and began drafting a motion to reopen.

Our investigators had also picked up a paper trail on Mary Anne Gerchas, who’d supposedly seen the four men in watch caps running from Nicole’s condo.

“Looks like she stayed at a Marriott for about four months and stiffed them on the bill,” one investigator told me. “She owes thousands.”

I whistled softly. “No wonder they wanted to hide discovery on her.”

Our investigators had also turned up an exercise video that Simpson had taped only two weeks before the murders. It showed Simpson, at a trim 212 pounds, doing push-ups and throwing jabs and uppercuts. The video would refute the defense’s claim more vividly than words ever could; no way was this guy the feeble cripple described by Johnnie in his opening statement. Simpson was also running on at the mouth—an infuriating trait his fans seemed to perceive as charm.

“I’m tellin’ you,” he joked, throwing out his right arm as if delivering a punch. “You just gotta get your
space
in if you’re workin’ out with the wife, if you know what I mean. You could always blame it on workin’ out.”

It was incredible. Here was the defendant making light of wife-beating. I wanted the jury to hear that; I would push for both the video and audio portions of the tape to be entered into evidence. And then I worried,
Will this jury even get it?

For two days in court, we haggled over what punishment the defense should receive. Ito, clearly chastened by Bill’s collapse, gave us a receptive ear. But when it came right down to sanctions, as usual he split the baby.

I could reopen my statement,
but
I’d only get ten minutes. We could show the exercise video,
but
we couldn’t run the sound, which, of course, meant losing the wife-beating remark. And most disappointing, he denied us the chance to correct the impression that Nicole had the blood of some unknown suspect under her fingernails. His reason?
We hadn’t lodged an objection at the moment Johnnie made the statement
. Those jurors needed to know that Johnnie had misled them. Maybe I could live with the damage, I told myself, as long as Ito dressed down the defense in front of the jury. Ito had us half believing that he would do this. He also promised to make sure the jury realized that the trial had been delayed for two days because of the defense’s misconduct. But at the last moment, Lance lost his nerve.

“All right, ladies and gentlemen,” he told the jurors after they had settled into the box on the morning of Monday, January 30. “I need to advise you of certain things.”

His voice was so soft, it was scarcely audible. This was how he intended to censure Johnnie Cochran?

“I need… to explain to you some of the reasons for the delay that we have had over the past two days… . During the course of the opening statements, defense counsel mentioned witnesses who had not previously been disclosed to the prosecution… . This was a violation of the law. And one of the causes of the two-day delay, including the absence of Mr. Hodgman.”

The absence of Mr. Hodgman!
I couldn’t believe it. Listening to this castrated admonishment, the jury could reasonably infer that the delay was
Bill’s
fault.

If anyone was going to repair the damage, it would have to be me. And I would have to do it with a surgical strike. When it came time to do what would be called my “historic” reopening, I walked very slowly to the lectern. I paused. This was not to be an angry scatter blast or rebuttal. I would be calm and deliberate. I would limit myself to three points—each of them a promise to definitively refute Johnnie’s reckless assertions. When we delivered, and the defense failed to back up their claims, the jurors would know which side was credible and which side depended on lies.

Item: That on the night of June 12, O. J. Simpson was physically unfit to commit murder.

“You will see him doing push-ups,” I told the jury. “You will see him stretching, reaching, throwing jabs and uppercuts… . You will see him doing trunk twists… . We are going to show you that tape during the course of this trial.”

Item: That the LAPD refused to allow O. J. Simpson to have an attorney present when he gave his statement to police.

“In fact, what the evidence will show is that the detectives asked Mr. Weitzman to stay for the interview, but that he declined to do so, stating that he would prefer to go out to lunch… . Mr. Simpson… said, ‘Go ahead.’. . .”

Item: That we’d deliberately hidden from the jury the existence of Mary Anne Gerchas. We hadn’t told them about her, I explained, because we didn’t know about her.

“You’ll be hearing a lot more about Ms. Gerchas along the course of the trial,” I told them. “But right now, I’ll address a few points that Mr. Cochran didn’t tell you about. For example, she spoke to [a friend] the day after the murders… [and told her] that she was not even at Bundy on the night of the murders. [The friend] will tell you [that] Ms. Gerchas is one of these people who comes out of the woodwork in high-profile cases… . [She] was obsessed with this case and she talked as if she knew the defendant personally… . The evidence will show that Mary Anne Gerchas is a known liar and a Simpson case groupie.”

I spoke for only seven of the ten minutes allotted to me. I didn’t want to take a chance of running over and having Lance bawl me out in front of the jury.

CAR TAPE.
It’s Wednesday, February first. I reopened our opening statement yesterday very briefly just to tell them about some of [the defense’s] lies, but I don’t know if it’s enough to bring them around. If it was an ordinary jury I’d just be sitting there laughing because no reasonable mind could possibly buy the garbage they’re feeding them. But with a jury where people don’t want to believe the evidence, they’ll seize on anything. We may all be playing to the second jury, assuming this one hangs up and doesn’t acquit. What a lovely frame of mind
.

A common procedure in murder cases is to call the coroner as the first witness. It’s easy to understand why prosecutors do this. Calling the coroner places the victims’ bodies squarely in the jury’s line of sight. You can’t say it any more bluntly: “Two people have been murdered, folks. That’s why we’re here.” If ever a jury needed a reminder of that, it was in this case, where so much of the attention had been riveted upon the defendant.

But this wasn’t a standard case. We simply could not afford to lead with Dr. Golden.

Even before preliminary hearings back in July, we’d realized that the deputy medical examiner’s report was riddled with errors. Some of the victims’ wounds, which could be clearly seen in the coroner’s photos, hadn’t been documented at all. Worse, the tissue samples removed from Nicole’s brain showed evidence of a brain contusion, but Golden’s report had made no mention of it. The problem with the omission was that now we couldn’t determine which side of the head had been struck—and not knowing this seriously hampered any reconstruction of the attack upon Nicole.

The contusion was critical because it lent support to other findings that Nicole had been attacked, but left alive and unconscious for at least a minute or two before the coup de grâce to her throat. This indicated that Simpson had stuck around after the first attack on Nicole. Now, why would a man who had just committed murder hang around to risk getting caught, not to mention missing his alibi flight to Chicago? The crucial minutes of Nicole’s unconsciousness were clearly Simpson’s window of opportunity to kill Ron.

How could we salvage this fiasco? Bill had a good idea. Why not get a reputable M.E. from outside Los Angeles to examine all the data, and testify either in addition to or in place of Dr. Golden? He suggested Dr. Werner Spitz, former chief medical examiner of Wayne County, Michigan. Spitz had written a key textbook in the field, and had consulted on other high-profile cases. Gil had heard that he was a “good man” and told us to give him a call.

It occurred to me that Spitz might not like the idea of having to second-guess another pathologist’s work. But I thought that he might be sympathetic to our dire circumstances and agree to lend a hand. Bill and Dr. Spitz exchanged phone calls for about a week, but in the end, he never testified for us.

I should point out here that Werner Spitz became the expert witness who testified on behalf of the plaintiffs in the Simpson civil case. He was extremely helpful to them, describing how the cuts on O. J. Simpson’s hands had probably been made by the victims’ fingernails. He also proclaimed in unequivocal terms that the murders took only a minute and a half. It was damning stuff, and I wish to heck we’d had it. But we couldn’t get the good doctor to our courtroom. Looking back on it, I think that he and a lot of other potentially compelling witnesses might have been scared off by the frenzy surrounding the criminal trial and the gratuitous abuse they were likely to suffer at the hands of the defense. Bill ended up spending at least a hundred hours on the phone trying to enlist a reputable medical examiner. Not one would agree to help us.

So we went to our fallback position. We had Golden’s report redone under the direction of his boss, the chief medical examiner, Dr. Lakshmanan Sathyavagiswaran. Dr. Lucky, as we called him, would have to use Golden’s memory and the police photos to splice together some description of the wounds. But at the time, the redone report was a work in progress. Dr. Lucky wasn’t ready to go to the top of the lineup. He wouldn’t have the original report completely redone; we’d have to start our case by admitting a whole lot of Golden’s original mistakes. Not a strong opening gambit.

Another possibility was leading with our most compelling evidence, the DNA. But that meant opening with Dennis Fung. More mistakes. More egg on our face. And besides, it was such technical stuff that the jury would have been asleep from the get-go. No, thank you.

Chris and Scott were pushing to open with domestic violence. As usual, I hung back. I knew the risks. We were dealing with ambiguous and volatile testimony. It’s difficult to convince jurors of either sex, of any race, that spousal abuse is a crime. And yet, opening with the New Year’s beating incident offered us a substantial logistical advantage as well. It would enable us to tell, in roughly chronological order, the tortured, complicated story of how O. J. Simpson’s obsession brought him to Bundy on the night of June 12, 1994. That tipped the scale. We’d open
People v. Orenthal James Simpson
with domestic violence.

“Mr. Darden,” Ito asked Chris, “who is your first witness?”

“Sharyn Gilbert, Your Honor,” he replied.

Gilbert, a neatly dressed black woman in her late thirties, raised her hand and took the oath.

“Ms. Gilbert,” Chris said, “were you a 911 operator and dispatcher [for the LAPD] on January [1], 1989?”

“Yes, I was,” she replied.

Gilbert explained that she had been at her console at 3:58 A.M. on New Year’s morning when she received a “drop in.” A distress call. At first, Gilbert couldn’t make out a voice on the other end. She made a note in her log: “trouble unknown.” A few moments later, however, she heard someone being hit.

Chris played the tape to a quiet courtroom. At first you could hear only the incongruous hiss of an empty line—then came a woman’s screams. In the distance blows were struck and there was more screaming. And then the line went dead. I stole a glance at the jury box. Glum stares. No evidence of thoughtful contemplation. No hint of emotion.

Gilbert told how she’d picked up the caller’s address off the computer and dispatched a cruiser to 360 North Rockingham. Detective John Edwards took the call. He was our next witness. Under Chris’s deliberate questioning, Edwards told how he’d driven into the hills on Rockingham. There was a thick mist that morning. It had been raining. He buzzed the security gate. A half-nude, mud-caked Nicole stumbled out of the bushes. When she managed to get the gate open she flung herself on him and clung tightly.

“She was wet,” Edwards recalled. “She was shivering, she was cold. I could feel her bones and she was real cold. And she was beat up.”

Nicole was also crying, “He’s going to kill me.”

Edwards’s testimony was very damaging to O. J. Simpson. He’d seen a one-inch-long cut on Nicole’s left upper lip. Her right forehead was swollen. One of her eyes was starting to blacken. Her cheek was puffy and she had a handprint on her neck. Moreover, Edward saw that Nicole Brown Simpson seemed genuinely terrified of her husband.

To my way of thinking, a smart defense attorney would want to get this guy off the stand as quickly as possible. Not Johnnie. He trotted Edwards back through the details of the incident, sniping at him for not going into the house to interview the maid. (Please keep in mind, this officer had an injured victim in his car!) Johnnie wanted to position Nicole as the provocateur and Simpson as the reasonable one. But that backfired. Asked to describe Simpson’s demeanor, Edwards replied, “He had veins… popping out right here [he gestured to his own temple] on the upper part of his head, along the side of his head. The veins were pulsing and popping out, and I’d never seen that before on television or anywhere.”