The Search for Justice (40 page)

Monday, February 1, Brent had the day off from school. I had asked him if he ’d like to go to court with me. I was pleased
when his response was an enthusiastic yes.

As large as this story was playing in the rest of the country, it was even larger—yet somehow more personal—in Los Angeles.
Everyone had an opinion. Linell and I frequently heard from our friends about marital battles occasioned by a husband being
on one side and a wife on the other. It was no different for the city ’s kids, especially for the children of the attorneys.
Brent had heard from some of his classmates that things had changed on the defense team. He was aware of the publicity and
he was feeling a little protective toward me.

I explained how some of the changes affected me—that although I was responsible for overall strategy and had to be prepared
for all the testimony, the real responsibility for the presentation of the evidence wasn ’t mine now that we were in trial,
and I had to be realistic about what that meant.

“And I want you to be nice to Lee,” I cautioned him on the way to court. “We ’re having a business dispute, but it ’s nothing
to do with you. He ’s still your godfather.”

“Oh, I have no problem with being nice to Lee, Dad,” Brent said. “I really hate Johnnie Cochran, though.”

“Oh, come on,” I said. “Johnnie ’s a very fine lawyer and very important to the team. I want you to be respectful, Brent.”

Brent was in a good mood. His hockey team had won the night before, four to one. As he had become more involved with competitive
sports, he was learning to take hits, even to lose sometimes, to “play hurt,” as O.J. would say.

“Okay,” he said, a faint grin on his face. “I ’ll behave, Dad.”

In the weeks leading up to the trial, the other lawyers wanted to know what kinds of questions I was going to ask of the witnesses
I would be cross-examining. The question a lawyer asks is dictated by the answer he gets on the question he
previously
asked. The process is somewhat like weaving, in that each thread is connected to the one that comes before it. I ’ve learned
that I have to be flexible enough to go with the ebb and flow of a witness, yet focused enough to bring the testimony back
to the center.

A lawyer may have a list of specific questions, because of course he ’s looking for specific information. Even though a judge
will instruct a jury that questions are not important, only answers are, it ’s clear that jurors focus closely on lawyers
and their questions and the manner in which those questions are asked. You can ’t get lost in the narrative, you can ’t lose
the thread, or you fall into the trap of getting an answer that surprises you. In addition, there ’s the Golden Rule: Don
’t open up anything in front of the jury that can be used against you in rebuttal.

To me, every witness is evaluated and approached as an individual, relative to his or her specific role in a case, like a
piece of the puzzle. Memory is flawed, recollection changes in
tiny increments with each telling: A witness whose story plays exactly the same with each telling, like a recorded statement,
is often giving a carefully constructed story, not a memory.

Some lawyers use the take-no-prisoners approach, where every witness is an adverse witness and should be discredited. Sometimes
it ’s appropriate; more often, in my opinion, it ’s not. O.J. was often uncomfortable when a defense attorney unnecessarily
took a witness apart. “Why are we beating up on this witness?” he ’d ask. “This is an honest person.”

In fact, there ’s a great risk in attacking witnesses, although you ’d think, by watching television, that it happens in every
courthouse in the country. However, to the jury a harsh attack on a witness often reflects negatively on the lawyer and, by
association, his client. When cross-examining a witness, lawyers must be careful to balance the need to impeach that witness
with the need to bring out favorable information. A good cross can sometimes turn a witness for one side into a positive witness
for the other.

When Johnnie ’s game plan looked like it was going to involve only attack questioning, I gave serious thought to not doing
any of the examinations at all. Alan Dershowitz talked me out of that almost immediately. And so on Friday, February 3, I
would be cross-examining the prosecution ’s star witness, Denise Brown, Nicole ’s sister.

A defendant sitting in a courtroom is definitely in a Catch-22 position. If he shows his emotions, he ’s accused of being
manipulative. If he ’s resolutely poker-faced, he ’s accused of being heartless and cold. And now, with television in the
courtrooms, there was an additional reason to be self-conscious. Just as when Shipp was on the stand, O.J. was obviously frustrated
by not being able to respond directly and point out errors in the way Denise told anecdotes about his life. He tried to make
eye contact with her, and he shook his head whenever she said something he disagreed with.

Under direct examination by Chris Darden, Denise was emotional and teary. Nicole ’s acquaintance Candace Garvey
had testified that at Sydney ’s dance recital O.J. was talking companionably to his friend Ron Fischman. However, Denise testified
that he was alone and angry and looked “scary.” She also told of a night when she was with O.J., Nicole, and a group of friends,
when O.J. grabbed Nicole ’s crotch and said, “This is where babies come from, and this belongs to me.”

“That ’s a lie,” O.J. said, loud enough to be heard by the visitors in the first row. “I would never say that. Nicole had
C-sections.”

Denise ended her testimony that day in tears, telling of how in the middle of a fight, O.J. had picked Nicole up and thrown
her against the wall. It was a vivid and troubling image, and the prosecution had timed it well: The jury would have the weekend
to reflect on it.

From watching her on the stand, I knew Denise was likely to cry at any opportunity, and I didn ’t want to bring those tears
back. The prosecution suspected that I would be tough on her, and they hoped it would backfire on me. They guessed wrong.
I didn ’t want to focus the jury ’s attention on me as the bad guy striking out at a vulnerable, grieving woman. Nor did I
want to give her the opportunity to open a discussion of battered-woman syndrome, or outline her theory of these crimes. So
my approach was deliberately soft, understated, respectful. There were some points I needed to make—for instance, that she
herself had battled with a substance-abuse problem—but I didn ’t see a necessity to be cruel when I did it.

Before I cross-examined Denise, I handed the prosecution almost one thousand pages that we had compiled from a database search.
The pages contained everything said by and about Denise Brown since her sister ’s death. I was under no legal obligation to
give the material to the prosecution, and I didn ’t intend to use any of it, but I wanted them to believe that I might. Perhaps
they would overprepare her; perhaps it would put them all a little off balance.

When I examined witnesses in the trial, I preferred not to use the center lectern but rather the same one the district attorneys
used, an arm ’s length from the jury. When Darden had finished questioning Denise, he saw me head for the lectern. He turned
and deliberately pushed it back against the prosecutor ’s counsel table and computer equipment, so that I couldn ’t get behind
it and position it.

“Excuse me,” I said evenly as we passed each other and the jury looked on, and then I moved the lectern forward again.

The cross-examination went well, as quietly and subtly as I ’d hoped, although there was little question that this particular
witness would have preferred to be at a beheading: mine. The questioning did nothing to disparage her character, but I managed
to reveal factors that might have impaired or skewed her vision or ability to be objective about Nicole and O.J. Primarily,
I wanted to emphasize that the physical abuse that Denise witnessed was limited, that at the time it didn ’t alarm anyone,
even her sisters, and that often the incidents she witnessed were during times of considerable intoxication on the parts of
all parties.

When I went back to the table, Johnnie said, “Bob, you went too easy on her. What about all the information in the file about
her private life? We need to discredit her, and I need something concrete for the closing statement.”

“Look,” I said to Johnnie, “if you want to ask that kind of question, then you do the recross. It ’s a bad idea, and it ’ll
open up stuff we don ’t want to open up.”

“O.J. ’s the client,” Johnnie argued, “and you have to listen to the client.”

“I ’m the lawyer,” I said, “and the client should listen to me.”

“Don ’t be such a baby,” said Cochran.

I had come to understand the fundamental difference in our philosophy of client representation. Johnnie always told O.J. what
he wanted to hear. My position had always been that the client hired me to be the lawyer. Just as I insisted my client tell
me the truth, I was determined to tell him the truth as well. It wasn ’t always happily received.

Johnnie didn ’t take me up on my offer to do the recross; I did it. Denise ’s testimony that O.J. looked scary at the recital,
that he looked like a “madman,” gave me the opportunity to show the home video that we ’d received only two days before from
the prosecution. It revealed a smiling and relaxed O.J. after the recital, warmly shaking hands with Lou Brown, hugging his
son Justin, and being affectionately kissed good-bye by his former mother-in-law, Juditha, and by Denise herself.

When I got back to the table, I said to O.J., “Look, I ’m sorry I got pissed at you, but I can ’t always make decisions just
to please you.”

“No problem, Bob,” he said. “Sometimes you just have to get in my face.”

O
n February 7, we lost another juror. That day, the prosecution presented crime scene photographs, including pictures of the
two victims that had never been shown outside the courtroom and by court order could not be broadcast by the television cameras.
Once again, O.J. looked away.

Police Officer Robert Riske, the first cop on the scene, testified that he arrived at 12:09
A.M
. “I called my watch commander and told him we had a double homicide and that O.J. Simpson was somehow involved.” He knew
this, he said, because he could see a large picture of O.J. inside the house, and when he used the phone in the kitchen (without
putting on gloves or dusting for fingerprints) he saw an envelope with O.J. ’s name and return address. He then called the
detectives.

On cross-examination, Johnnie Cochran elicited information from Riske that showed that the crime scene was improperly secured—no
gloves and booties on officers, no dusting for prints. Although if they ’d found O.J. ’s prints, it would ’ve been no surprise.
In his initial statement to police, O.J. told them, “Oh, Christ, I ’ve slept at the house many, many, many times, you know?
I ’ve done everything at the house, you know? Roughly, I was in her house maybe two weeks ago, ten days ago.”

That day Bill Hodgman returned to work, as the out-ofcourt case manager of the Simpson trial, and still holding his position
as district attorney ’s director of the bureau of central operations. We would see him in court only sporadically during the
trial. I was sorry not to have had him at the prosecution table every day; he was a steadying influence not just to his own
team but to all of us.