The Search for Justice (52 page)

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.

O
ne 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
n
word 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 decision.

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.