Without a Doubt (69 page)

Later that day, I heard from one of the D.A. investigators guarding Mark. When they were on their way back to the hotel, the radio was on with the story of Fuhrman’s day in court. In the backseat, Mark was crying.

All of this occurred outside the jury’s presence, but of course that didn’t matter. They’d hear about it. Whatever involuntary spasm of pity I’d felt for Fuhrman, I felt a whole lot worse for my team, for the public, and, above all, for the families of the victims. Up in the foyer of the War Room, Kim Goldman was sobbing her heart out. “Why did he do this?” she cried. “I want to tell that son of a bitch off! How could he do this to us?”

Only one more Fuhrman issue was left outstanding: what, if anything, would the jury be allowed to learn officially about his failure to reappear as a witness? Ito correctly ruled that the jury would not be informed that Fuhrman had invoked the Fifth. But the defense was asking that he instruct the jury, when evaluating Fuhrman’s integrity, to consider his unavailability for future questioning. And Ito allowed it!

For me, this was the final straw. Ito’s ruling was a direct violation of the Constitution, which states you can’t sanction anyone for taking the Fifth. If the ruling stood, the jury could reasonably assume that
all
of Mark’s testimony was bogus—and more easily accept the conspiracy theory the defense thrust in their faces day after day. I was prepared to fight like an alley cat for this one. I told Ito that I would be taking the matter over his head. I was going to file a writ with the Court of Appeals and try to get him overruled.

Ito was livid with anger. Whatever fragile truce had existed between us after the recusal incident was now broken. But I really didn’t care. Seven months earlier, when he issued his disastrous ruling on allowing the N-word in, I’d agonized over whether to try and get him overruled on appeal. I’d decided against it, so as not to prejudice him hopelessly against our side.

I’d been wrong. He’d shafted us anyway. And I’d forgone a shot — admittedly a long shot—at keeping the trial on track. To this day, my personal failure of nerve in not appealing the N-word from the start remains my single biggest regret. I would not compound my error by repeating it.

Ito at first tried to tell me I had only an hour to file my writ, but then backed down and gave me the night. Cheri and our appellate division lawyers worked like crazy to get it done, though I knew it had very little chance of succeeding. In fact, no one in our office could remember the Court of Appeals upholding such a protest in the middle of a trial. The pundits, print and broadcast, thought I’d lost my mind. Even my colleagues thought I was crazy. They all predicted I’d get what’s known as a postcard denial—a flat-out no, without the dignity of an opinion. But to me this ruling was so wrong that I had to appeal. Anyway, it was clear that we had nothing to lose in our relationship with Lance Ito.

The next day, I had run an errand during lunch break. About one o’clock or so a TV reporter came tearing up to me.

“Marcia,” he cried, “Ito’s order was overturned on appeal!”

I was stunned. Within minutes camera crews from NBC and ABC, all of whom had apparently been tracking me, had me surrounded, asking for my reaction.

It was the happiest day I’d had in a very long time. Not only because of the success of the appeal. A few minutes later I was grabbing a bite to eat in a restaurant when my pager went off. It was Judy, my divorce lawyer. I had asked for a gag order. It had been granted, then appealed.

“Marcia,” Judy said.

I braced myself for the worst.

“They denied the appeal.”

This piece of news gave me even more joy than winning the Ito writ.

It was like winning the lottery.

CAR TAPE.
September 8. Going back to court after the writ, Lance looked like somebody had run him over with a steamroller. It was a Pyrrhic victory. But it just kind of feels good to have him taught a lesson. Man, he hates me. It’s a good thing the trial’s almost over, because I can see what’s going to happen here
—
he’s going to kick the shit out of us on rebuttal, prevent us from getting evidence in any chance he can. He’s already thrown the trial to them, so it probably doesn’t matter. We’ll do our best with what we’ve got
.

Before prosecution and defense could rest, the defendant, O. J. Simpson, had to waive his right to testify. I do believe that right up until the McKinny tapes surfaced, Simpson had intended to take the stand. But after that windfall of racial obscenity from the mouth of Mark Fuhrman, Simpson had to know that juror sympathy was running so profoundly in his favor, testifying wasn’t worth the risk.

The waiver should have been a simple matter. All it required was for Simpson to affirm, with a simple yes, that he understood he was waiving his right. End of story. Instead Johnnie pops up with, “Mr. Simpson would like to make a brief statement regarding that waiver, if the court pleases.”

A statement? Since when does the defendant get to make speeches without exposing himself to cross-examination? There wasn’t much energy left in me by then, but I was up like a shot, objecting.

“This is a very obvious attempt by the defense to again get material admitted through conjugal visits and phone calls that has not been admitted in court… .” I warned. “It is inappropriate and it is done very deliberately by the defense for a clear purpose.”

Ito seemed to be considering this possibility for the first time. I was desperate to reach him. And so I said something I’d never thought I’d be brought low enough to say in a court of law.

“Please, don’t do this, Your Honor. I beg you. I
beg
you.”

All I was asking of Ito was that he make the easiest call he’d ever have to make from the bench. Giving a defendant an opportunity to explain himself—without exposing himself to the rigors of cross-examination—is simply not done. Doing it over the objection of the prosecution is even more outrageous. I doubt that any judge in the history of American jurisprudence has ever made such a gaffe.

But the next thing I knew, without even ruling on my objection, Lance had turned his attention to the defendant.

“Mr. Simpson,” he said genially. “Good morning.”

Simpson stood.

“As much as I would like to address some of the misrespresentations made [about] myself and my—and Nicole concerning our life together, I am mindful of the mood and stamina of this jury. I have confidence, a lot more, it seems than Miss Clark has of their integrity.”

He cast a sideways glance in my direction.

“And that they will find,” he continued, “as the record stands now that I did not, could not, and would not have committed that crime.”

This was
exactly
the sort of statement that a defendant cannot be allowed to make without having to face cross-examination. At this point Ito realized how serious was the blunder he had just committed. His face fell almost to his laptop computer. I tried to catch his eye in recrimination. But like everyone else in the courtroom, and the country, he was watching Simpson with fascination. Even now, he was somehow loath to interrupt. Only when Simpson began blathering about his children did Ito muster the gumption to try and shut him up. But Simpson rushed in his last words: “I want this trial over.” And he sat down.

In the course of that performance, he had not even bothered to mention the fact that he was waiving his right to testify.

I was fairly choking with fury.

“Since he would like to make these statements in court,” I raged, I would like the opportunity to examine him about them. May he take a seat in the blue chair and we will have a discussion.”

Lance never responded to my objection. In fact, he ignored me. All he said was “Thank you.”

Johnnie held a press conference afterward, shrugging off my objections. “We’re not worried about angering Miss Clark,” he gloated. He insisted that his client’s comments were unscripted and from the heart. He was lying. According to
American Tragedy
, the book published more than a year and a half later by Simpson’s
I Want to Tell You
co-author, Larry Schiller, on September 8 Johnnie Cochran, Robert Kardashian, and Robert Shapiro helped Simpson draft the “waiver” speech. Simpson spent the next two weeks refining and rehearsing it.

The fact that they could conceive of a judge letting them get away with that was remarkable. The fact that they succeeded was not remarkable in the least.

S
oul Survivor

CAR TAPE.
It’s Monday, September 18. We started working on closing argument in earnest this weekend and Chris and I had a huge fight. I think it’s primarily because he wants to take a big role in the closing argument, but he’s also afraid to because he doesn’t know the case that well
. . .

Originally, I’d intended to do the closing all by myself. I knew this case better than anyone else. On the other hand, I knew the task ahead was awesome. I had to distill the more than 40,000 pages of testimony into a swift, eloquent, compelling argument that would show that the evidence in the case pointed to Orenthal James Simpson, and to him alone. Which, of course, it did. But would this hostile jury ever see that?

The elements of that argument were threefold: opportunity; identity; motive. Opportunity presented no problem. Here was O. J. Simpson, a man whose face was recognized everywhere he went, who had no one to document his whereabouts for what we now computed as seventy-seven minutes, the exact period during which Nicole Brown and Ron Goldman were murdered. Identity was also a lock. We had identified O. J. Simpson six ways from Sunday as the man whose blood was at the murder scene—
and
in the Bronco
and
on the bloody Rockingham glove, where it was mixed with the blood of his victims.

As I’ve said, the prosecution never needs to prove that the defendant had motive, only intent. It is usually useful, however, to suggest to a jury why the defendant might have gone so far as to slit another human being’s throat. The motive for this particular murder was sexual rage. And I felt that now, in our final moments, we were compelled to pull this jury’s nose flat up against the truth. O. J. Simpson was a sadist who’d terrorized his wife for years—until she’d finally stood up to him and paid for it with her life.

Chris wanted to put on the DV. That was understandable—it was his baby. The problem was, he also wanted to argue premeditation. I didn’t want him to. Arguing premeditation required a command of both law and the particulars of the coroner’s findings. The manner in which someone is killed is one of the primary ways to show premeditation. The more elaborate the attack, the more successfully you can argue it was a premeditated murder. I didn’t feel Chris had paid close enough attention to the coroner’s testimony to explain how it proved premeditation. I didn’t know if he could get up to speed on the law. So he and I went back and forth, back and forth, back and forth.

That’s how it was between Chris and me. Always. We were like siblings: close, loyal to the end, but inclined to squabble. Toward the end of the trial we both said and did things we didn’t mean, only because we were so strung out on stress. I must say that during these, some of my darkest hours, I felt a gentle hand at my elbow. It was Bill Hodgman come once again to my rescue. Bill knew I hadn’t the reserves to waste on infighting. Patiently, tactfully, he drew Chris aside to try and bring him up to speed.

The reports I got back from Bill weren’t good. Chris wasn’t getting it. There just wasn’t enough time. Finally he realized that and gave up the fight.

I was relieved. Chris would argue the domestic violence, but I would take premeditation. Once the program was set, nobody blinked, no one looked back. We charged ahead full-throttle toward closing arguments.

One screwball rumor making its rounds after the trial was that I had thrown my argument together at the last moment. “Crammed like a college kid,” I believe, was the expression. Nothing could be further from the truth. In the broadest sense, I had been preparing for my closing for nearly fourteen months. I’ve had a system that has served me well lo these fourteen years as a prosecutor. From the moment I catch a case, I start an accordion file labeled “Closing Argument Ideas.” I stash away clippings in it; also magazine photos and newspaper columns. Sometimes I’ll wake up in the middle of the night with an idea, scribble a note, and next day, stick it into the file. When the juror questionnaires come in, I’ll look through them to see if there are any expressions, buzzwords, or sentiments they seem fond of. Anything like that goes into the file.

The Simpson case was no exception. My county-issue accordion file had overflowed to a second, then a third.

Everyone was working hard. For several weeks before closing arguments were set to begin, the entire staff had been holding brainstorming sessions in the conference room next to Gil’s office. Hank would unroll a scroll of butcher paper on the long granite table and print on it our topics: “Contamination,” “Planting,” “DNA,” and so on. Over the course of a workday, deputies would drift in, add their two cents, then drift out again. By the end, we had over 150 entries pointing to guilt. It was too much for a summation, so we boiled it down to eight key pieces of evidence—each of which had an irrefutable connection to O. J. Simpson:

The knit cap.

Ron Goldman’s shirt.

The shoe prints up the Bundy walk.

The droplets of blood leading from Bundy.

The blood in the Bronco.

The Rockingham blood trail.

The Rockingham glove.

The socks found at the foot of Simpson’s bed.

We’d originally included the Bundy glove as well, but it had less significant blood, hair, and fibers. Ultimately, we left it out. It didn’t add to proof of guilt.

(One episode of the civil trial that gave me a chuckle was when the defense tried to suggest that the Bundy glove had been switched for a ringer. This, like so many other “stunning developments,” led to nothing, of course. But I thought to myself, “If you were going to switch a piece of evidence, why not pick one that was incriminating?”)

CAR TAPE.
Our genius Judge Ito… has preplanned a trip up north for Friday and Monday the twenty-ninth and October second. And he will not cancel for anything or anyone. Instead, he prefers to be going to night sessions after dinner, arguing 7 to 9… . That’s ridiculous
—
we argue to a jury that’s half asleep? God, you know, Ito would rather inconvenience the whole fucking world than himself for one day
.