The Search for Justice (51 page)

Bailey was going to do the cross on Bodziak, in spite of my objections. Scheck and Neufeld were equivocal, and Bob Blasier
was cautious. “We ’ve worked with him, brought him up to speed,” Blasier said. “But I ’m not sure he ’s done the work.”

Between the direct examination and the cross, Bailey went into the back room with a clothing bag and changed suits. He ’d
been wearing a gray suit in the morning; when he began his cross-examination, he had on a blue pinstripe.

Bailey ’s cross was all over the place, going off on tangents. He misstated the evidence that was brought out on direct examination,
calling the shoe a twelve and a half when it was a twelve, and a European size forty-six and a half when it would have been
a forty-six. He was frantically trying to embarrass a witness who was calm, cool, articulate, and professional. And Bailey
was breaking his own cardinal rule: Unless there ’s something to accomplish on cross-examination, less is more.

During the break, O.J., Johnnie, Carl, and I went into the lockup together, and Johnnie jumped all over Lee.

“I told you to stay on point,” he said. “You promised you would. You ’re trying to show how smart you are, and all you ’re
doing is showing how smart
he
is.”

To his credit, Lee was chastened, and he went back to conduct a more focused, to-the-point cross.

Nevertheless, O.J. was livid at Bailey ’s performance. “That ’s it, I don ’t want to see him up in court again. The man will
do no more witnesses.” It was something I ’d been hearing for months, but it was a pledge nobody would stick to.

On June 21, Cochran and Darden were each fined $250 for trash-talking at a sidebar. Darden had only $112 in his wallet, and
Ito ordered him to turn it over immediately. The judge then reduced both fines to $100. I offered to pay half of Cochran ’s
fine, saying, “We ’re a team.”

On June 23, Peter Neufeld cross-examined Dr. Bruce Weir, a respected population geneticist. The issue at hand was the possibility
or likelihood of people sharing the same DNA characteristics. Neufeld had done his homework and was able to discover mathematical
errors in Weir ’s calculations—errors that worked against O.J.

Weir was dumbfounded. “I ’ve made a mistake,” he said. “I ’ll have to live with this the rest of my life.” At 10:30 there
was a brief recess. “I ’ve heard so much of this stuff,” O.J. said, “that by the end, I ’ll know more about DNA than Johnnie
Cochran does.”

During the break, as often happens, Weir went out, conferred with the prosecutors, and came back to court a somewhat better
witness. Although he ’d improved, he had not recovered. I suggested then to Peter that he wind up his cross and just leave
it alone.

I had been watching the jury ’s faces as the scientific witnesses paraded on and off, giving their jargon-filled testimony
and statistics. I didn ’t believe for a minute that they understood the specifics of what they were hearing. Occasionally,
just to check my theory, I ’d talk to the reporters, to see if
they
understood the scientific testimony. If they had problems, if they had questions, if they didn ’t understand, it was clear
to me that the jury wouldn ’t understand either. The reporters could bring on experts to explain; the jury would have to rely
on themselves. And I frequently found that the reporters were confused. But nobody would forget Dr. Weir, a prosecution expert,
saying, “I made a mistake. I was wrong.”

During Weir ’s direct examination, Neufeld was once again sanctioned, for talking too loud at a sidebar conference. He was
fined two hundred and fifty dollars, and he was furious. Throughout the whole trial, Ito was tougher on Peter Neufeld than
on any of the rest of us. In spite of my continued reassurances that it wasn ’t personal, that Ito actually respected him,
Neufeld was adamant. “No judge has ever treated me this way,” he said. “I ’m not paying the money. I ’m going to jail.”

I talked to Johnnie, and we agreed that it wouldn ’t look good for one of our lawyers to land in jail for contempt. Since
I had paid Peter ’s last fine, Johnnie would pay this one.

Mid-morning on the day Weir testified, Kardashian faxed us asking for a late-lunch meeting at Martoni ’s on Beverly Drive.
Johnnie, Carl, Skip Taft, and I met with Kardashian. Bailey, who ’d already had lunch, stayed at the courthouse.

“We ’re all very unhappy with Bailey,” Skip Taft told us. “We don ’t want him participating in the courtroom anymore.” Bob
Kardashian concurred with Taft. Lee ’s work on the case had ceased to be about O.J., or on behalf of O.J.—it was about his
own reputation, his own ego. He was going to solve the case, he was going to be the hero.

The immediate problem of taking Bailey out of the courtroom was that he ’d been assigned to argue a motion to prevent the
prosecution from introducing certain hair and fiber evidence. “When am I going to argue my motion?” Lee kept asking Johnnie.

“See Carl,” Johnnie would tell him. Once again, Carl was the designated hatchet man. He did all the dirty work. In fact, he
did all the clean work. He did
all
the work.

Ultimately, after discussions with Neufeld, Blasier, and Scheck, it was decided that it was okay for Lee to do hair and fibers.
Blasier would go through the science with him and be at the table when he did the cross.

When we told O.J. that contrary to his expressed wishes, Bailey would be back in court, Johnnie wasn ’t in court that day.
He ’d gone to San Francisco for an interview and also to visit O.J. ’s mother. This was typical of the way Johnnie would let
us know about his side trips. “I ’m going to go up and see O.J. ’s mother,” he ’d say. “And by the way, while I ’m up there,
I ’m going to do an interview.”

The Demon was reading a John Grisham novel,
The Rainmaker.
We had seen her walk out with it; somebody said that it
dealt with a sports hero who was a wife beater. Cochran called the book to Judge Ito ’s attention. Ito called the juror to
a sidebar and told her he ’d have to take the book away. She was mad and sulked the rest of the day. When Ito returned the
book to her a few days later, she looked over at the defense table and gave us a caustic smile.

The prosecution ’s FBI hair-and-fiber witness, Doug Detrick, testified in late June and into the first week of July. At one
point, Bob Blasier got a look at Detrick ’s notebook and found an important report that had been sent to the D.A. ’s office.
We had not received it in discovery. Information from this report was incorporated in a prosecution graphics board exhibit,
and specifically mentioned an exclusive kind of fiber that was standard in the Bronco. Blasier objected strongly to the introduction
of this material and asked that it not be admitted.

Ito had been getting more and more concerned about discovery violations as the case went on, and he found this one to be particularly
egregious. He decided to bar the evidence completely, saying that it was too late for the prosecution to introduce it.

In the world of scientific analysis, hair and fibers carry only limited weight. That ’s because experts cannot conclude absolutely
that a hair or fiber from a sample is the same as a hair or fiber that is randomly found. The best they can say is that one
is “consistent with” the other. Marcia Clark was well aware of this; however, she kept using the word “match” when talking
about the hair and fibers. Bailey, properly, kept objecting. Clark apologized, said it was a slip of the tongue, and then
did it again. And again. Bailey objected again, his hands and his voice both shaking. Finally, Judge Ito had had enough.

“Ms. Clark, you ’re flirting with contempt,” he said. “If I hear you use that word again, you ’re gonna spend the weekend
in jail.”

In answer to Bailey ’s final question, Detrick finally admitted, “The courts have never recognized hair examinations as a
positive
means of identification,” and he paused slightly before he continued, “and we don ’t either.”

Marcia Clark was back to flirting regularly with Johnnie Cochran, and he was back to responding. Once at a sidebar conference,
she said to him, “You just call these sidebars so you can stand next to me.”

The flirtation was obviously galling to O.J., who didn ’t see it as being the harmless pastime Johnnie kept claiming it was.
If the jury was noticing, it was a confusing message for them to get.