The Search for Justice (42 page)

We didn ’t get much more accomplished with Lange that day, since the prosecution was constantly interrupting. Cochran continued
to bait both lawyers; Clark responded by trying to laugh him off, Darden by making more tense and angry objections. While
Ito had made it clear that he wasn ’t going to tolerate disrespect for the bar, it looked like he was going to allow the defense
as much latitude as the prosecution in dealing with witnesses. For a judge with a pro-prosecution history, that was a pleasant
surprise.

Gil Garcetti had announced to the press that even if the jury
came with an eleven-to-one hung jury for acquittal, he ’d retry the Simpson case. I was sure that if that happened, the prosecution
wouldn ’t want us all standing again in front of this judge.

Rosa Lopez, constantly harassed by the press, kept saying she was going to go home to her native El Salvador. On February
23, the day before she was scheduled to appear, we discovered that she ’d evaded the Pinkerton guard we had hired to keep
an eye on her and was nowhere to be found. I never believed she was key to our case, and I didn ’t relish the idea of how
we ’d look if a much-touted witness simply evaporated.

For days, Lopez had alternately begged and threatened to leave. Judge Ito could have ordered her to stay, but the only way
he could actually prevent her from leaving was to put her in jail, which none of us wanted to happen. On the scheduled day,
Lopez arrived in court. Since she was a witness for the defense, her testimony would ordinarily not have taken place this
early in the trial. However, it was agreed that she could testify out of order and that her testimony would be conditional—that
is, it would be videotaped and not shown to the jury unless and until the defense attorneys decided it was strategically wise.
This was very important for us, since it allowed Lopez to testify under oath, but absent the jury. We could evaluate her testimony,
decide if it hurt or helped, and then make the determination as to whether or not we would put her on in front of the jury.

If it hadn ’t been such a difficult session, it could almost have been described as comical. Lopez didn ’t understand the
adversarial nature of the procedure and became very emotional when she was being cross-examined by Chris Darden. One moment
it appeared she understood English; the next moment she would fall silent and look to the Spanish-speaking translator for
her cue. Although our investigator Bill Pavelic had worked with her, trying to help her understand and negotiate the process,
she constantly fell back on a truculent “I don ’t remember” whenever she felt Darden was pushing her.

The cross-examination had to be continued through to the following Monday, since Marcia Clark said she had child-care problems
that Friday afternoon. Lopez argued that she couldn ’t come back on Monday; she ’d made an airline reservation to leave the
country immediately.

While Lopez was still in the courtroom, prosecutor Cheri Lewis checked and found that no reservation had been made, at which
point Chris Darden challenged Lopez on the lie. He had her on the ropes.

Lopez had contradicted herself numerous times, and her credibility was impeached. But the judge wanted to protect himself
against reversible error and didn ’t want her to leave without being cross-examined further. Thus the continuation—which gave
the defense the weekend to work more with Lopez. She came back on Monday with different clothes and, for a few minutes, a
somewhat different attitude. Still her demeanor was a potential disaster, and we wisely never allowed her testimony to be
heard by the jury.

We deserved to lose Lopez, and the prosecution was right to go after her the way they did. It turned out that Bill Pavelic
had taped a session with Lopez, and we ’d never turned it over to the prosecution in discovery. At this, Marcia Clark went
completely ballistic. “Their conduct has become so egregious!” she stated angrily, and asked for the appropriate sanctions.

Since I was at the time of the interview the lead lawyer of the team, I took complete responsibility. I told Judge Ito, “I
am responsible for everything that happened at that time.” However, Ito found that Lopez had been the responsibility of Cochran
and Douglas, who were each fined one thousand dollars for not reporting Bill ’s audiotaped interview with Lopez. When Johnnie
pointed out that a fine of that size had to be reported to the state bar association, Ito reduced it to $950.

The Lopez episode concerned me greatly. It was becoming clear that Cochran and Douglas did not take as conservative a
view of the discovery laws as I did. And it was rumored that Lopez had been paid money for her testimony, which I didn ’t
believe was true.

Always in the back of our minds, from the very beginning, was the possibility of a second trial, either because of a hung
jury or a conviction followed by an appeal. We had to be aware of the public perception not just of O.J. but of his defense
lawyers. In a second trial, impaneling a jury would be harder than it was the first time, getting a favorable verdict would
be tougher, and out-strategizing the prosecution would be daunting. Anything that made us look unprofessional would hurt us
in the short run; it could do even more damage in the long run.

Ever since the debacle with Bailey, the press seemed to equate Johnnie ’s larger public role as a demotion for me. Whenever
O.J. saw something regarding the situation in the papers, he said to me, “These guys don ’t realize that this was our plan
all along, especially after we got this jury—that you were going to hand the ball off and Johnnie would run with it.”

In fact, Johnnie was taking more control in strategy, and in the media. Had it been up to me, there would ’ve been no statements,
no television interviews, no print interviews, nothing to increase or intensify the white light of scrutiny we were already
under. I raised objections where I could, and tried to pick my fights. As I watched Johnnie take over, I often remembered
the football analogy. I ’d thought that the quarterback—me—would run the team. But obviously, O.J. identified with the guy
who was playing
him
—that is, Cochran.

On March 1, Michael Knox was dismissed from the jury. The following day, the papers were full of the story that Marcia ’s
ex-husband, Gordon Clark, had filed suit for full custody of their two little boys. At Marcia ’s request, the Superior Court
judge ordered the records of the proceedings sealed. It was difficult not to feel compassion for her. She was working long
and hard days on a case she was obviously committed to. At the
same time, she had to undergo this personal struggle in public view.

On March 9, Detective Mark Fuhrman took the stand as another star witness for the prosecution, and a suddenly charming Marcia
Clark treated him like he was a poster boy for apple pie and American values. He had never been alone during the entire first
morning of the investigation, he told her earnestly, except when he was taking notes. Bill Pavelic believed that he hadn ’t
taken contemporaneous notes but rather had carefully— and neatly—crafted his report much later, to support his version of
those events. Fuhrman had never planted evidence, he said, and he had never, ever made racist slurs. Everyone in the courtroom
was aware that the eyes of every single juror were on Mark Fuhrman.

When Bailey cross-examined Fuhrman a few days later, he asked Fuhrman if he had ever, in the past ten years, used the
n
word. Fuhrman answered that he had absolutely never done so. Bailey reworded and repeated the question; Fuhrman answered
it exactly the same way. Then Bailey went over the top. He vowed to call Max Cordoba, he told Fuhrman.

Maximo Cordoba, a black former marine, was ready to get on the stand and testify that Fuhrman had called him a nigger. “I
’ve spoken to him on the phone, marine to marine,” Bailey asserted. That night
Dateline NBC
broadcast an interview with Cordoba in which he claimed he ’d never spoken to Bailey.

An angry Clark then asked Judge Ito to cite Bailey for contempt. “As an officer of the court he has lied to this court,” she
raged. “He was impeached by his own witness.”

Bailey jumped up, red-faced and angry. “I object, Your Honor,” he said. “Either put Cordoba on the stand or stop her from
testifying.”

Judge Ito told Bailey and Clark to make some apologies, ordering them not to “engage in gratuitous personal attacks
upon each other.” Even Lee ’s mother got into the act; she called him on the phone later and told him to “lay off Marcia Clark.”

The next day, again talking to
Dateline
, Cordoba “remembered” that he ’d talked to Bailey and that he recalled “in a dream” that Fuhrman had called him a nigger.
Cordoba was never called; neither the prosecution nor the defense was interested in having a witness testify to more dreams.

I knew that O.J. always viewed himself as a gentleman, and he felt things should be done in a gentlemanly way. He had locked
his jaw at the word “nigger” and he felt that Bailey ’s attack had been about ego, that discrediting Fuhrman seemed to be
more about Bailey ’s needs than about O.J. ’s. “I ’ve got ten witnesses to refute Fuhrman!” Bailey kept insisting.

“Do we need that many?” O.J. asked him quietly. “Why not use one good one?”

The consensus seemed to be that Bailey did little or no harm to the prosecution ’s witness. In fact, by pressing as hard as
he did, Bailey may even have made Fuhrman look sympathetic. As one reporter phrased it: “Fuhrman managed to elude capture.”

“The last roar of the lion,” wrote David Margolick of the
New York Times
, “was really more of a meow.”

It was clear to me that when Mark Fuhrman said he hadn ’t used the
n
word in ten years, nobody on the jury believed him. Bailey ’s continued use of the word over and over did nothing but heighten
racial tension both inside and outside the courtroom, and it was completely unnecessary. We knew we had several civilian witnesses
who could damage Fuhrman ’s testimony; we didn ’t know at this point that there would come another witness who, with Mark
Fuhrman ’s own words and voice, would make him and his testimony look absolutely grotesque.