Cochran’s opening statement represented a bold risk. Most defense attorneys use their opening statements to remind jurors of the presumption of innocence, to urge them to keep an open mind—and to make as few promises as possible. A defendant in a criminal case has no obligation to put forward any evidence, and few defense attorneys want to commit themselves at the beginning of a long trial to naming the witnesses they will call to the stand. So what Cochran did was all the more remarkable. He made scores of specific, factual claims about the evidence in the case, and described in detail some of the witnesses he would be calling. Cochran’s supremely confident opening statement demonstrated how central a figure he was to the defense strategy. He became the very incarnation of O.J. Simpson, his voice for the jury. Cochran sought to transfer his enormous prestige in the middle-class black community to his client. On the defense team, only Cochran had the stature—and the race—to do that.
There was another new player in the courtroom during opening statements, and he took an amused interest in Cochran’s tale of the nefarious Faye Resnick. Five and a half feet tall and nearly as wide, Lawrence Schiller would become a frequent presence in the corridors outside Department 103 and in the twelfth-floor media center. Bearded, balding, shoveling endless fistfuls of M&M’s past his yellowing teeth, the fifty-eight-year-old Schiller represented an apotheosis of sorts for the O.J. Simpson spectacle: the perfectly amoral profiteer. Schiller bore a passing resemblance to the actor Zero Mostel, and he appeared in the Simpson case as the reincarnation of Mostel’s character in the film The Producers—the man who tried to sell the public on a show called Springtime for Hitler.
A onetime photographer for Life and other magazines, Schiller operated on the fringes of show business for decades and left a trail of multiple divorces, embittered business associates, and bankruptcy. Schiller specialized in exploiting an arcane and odious corner of the literary marketplace: the purchase of book rights to murderers’ life stories. He made deals with Jack Ruby, Susan Atkins (of the Manson family), and Gary Gilmore. It was, in fact, Larry Schiller’s interviews with Gilmore and others that provided the raw material for Norman Mailer’s masterpiece The Executioner’s Song. The only real surprise about Schiller was that he took several months to surface in the Simpson affair. Schiller even had good entree: He was a longtime acquaintance of Robert Kardashian, and had lived near O.J. and his first wife many years before. Through Kardashian, Schiller inveigled an invitation to visit Simpson in jail. As he later described it to a friend, Schiller told O.J., “You are a literary resource. You need someone who can exploit it”—i.e., me.
Simpson agreed, and Schiller came up with the idea of a book of O.J.’s responses to the many thousands of letters he had received in jail. With Kardashian’s help, Schiller contrived to have his name placed on the list of “material witnesses” who were allowed to visit Simpson in jail. (There were, ultimately, fifty-two people on this list, and many of them, like Paula Barbieri, were Simpson’s friends more than potential witnesses in the trial; this arrangement is another example of Simpson’s favorable treatment by law enforcement authorities.) Schiller acknowledged privately that it was preposterous to suggest that he was really a “material witness” in the case, but the jail guards never challenged him, even when he began to lug a large, high-quality tape recorder into his meetings with the defendant.
At his home in Studio City, Schiller used his personal computer to edit the letters and O.J.’s responses, and even to lay out the pages. As Schiller put it together, the book was almost comically sympathetic to O.J. In a chapter called “Spousal Abuse,” for example, the first letter to Simpson began, “Mr. Simpson—One thing I wanted to say, everyone is focusing on the alleged abuse you inflicted on your ex-wife. No one has mentioned the abuse she inflicted on you.…” Simpson responded to these letters with a series of banal pieties, most of them focusing on his supposed great faith in God. (In fact, before his arrest, Simpson neither attended church nor showed any interest in spiritual matters in conversations with friends.) Speculating about his life after prison, Simpson wrote, “I know that I will raise my children differently in relationship to God. Without a doubt. I can visualize it. I have already visualized each Sunday. I won’t play golf. Sunday we will go to church.…”
Wandering around the pressroom, Schiller chuckled at the notion that Simpson’s protestations of innocence might be true. His interest in the matter was purely commercial. In concert with his publisher, Little, Brown, Schiller arranged for the book to be printed under false names at three plants around the country. Then, according to the plan, the trucks would roll up to bookstores just before Cochran was to begin his opening statement. In perhaps his greatest marketing coup, Schiller arranged for an audiotape of Simpson reading excerpts from the book to be sold at the same time. Schiller thought the tape itself might be profitable, but he knew that the news media would rush to give the public the opportunity to hear Simpson’s voice—and thus give the book enormous free advertising.
Schiller’s plan worked to perfection. The book, called I Want to Tell You, was released a few days early, on January 7, and it became an enormous success, selling more than 650,000 copies. As Don Vinson might have predicted, booksellers found that black women bought the book in especially large numbers.
It wasn’t just Simpson’s obvious guilt that Schiller found amusing. He also scoffed at the notion that Simpson actually wrote or said all that was attributed to him in the book. One of the most quoted passages in the book came on the very last page: “I know in my heart that the answer to the death of Nicole lies somewhere in the world that Faye Resnick inhabited.” According to Schiller, “I put that in at the last minute.”
It was all, thus, part of a coordinated attack on Nicole, her lifestyle, and especially her friends—Uelman’s elliptical hints about drug dealers; one of Cochran’s opening remarks about “these ladies [who] would go out two, three, four nights a week and stay out until five o’clock in the morning”; and finally, Schiller’s book. Through all these allegations—indeed, through the entire trial and beyond—not a shred of evidence ever surfaced linking any individual except O.J. Simpson to the crime. The defense never ventured an explanation of why drug dealers linked in some way to Faye Resnick would have wanted to kill Nicole Brown Simpson (much less Ron Goldman). That wasn’t the point of the defense strategy. The point was to muddy the character of the target of this homicide.
In the end, the reason for the defense’s obsession with Resnick can be found in the focus groups—that is, in the overwhelming lack of sympathy that black women felt for Nicole Brown Simpson. The “Resnick card” was just another version of the “race card”—in this case, an outlet for the resentment of black women toward the blond temptress who had snared this black hero.
The remainder of Cochran’s opening statement hewed predictably to the defense themes. He described what he called O.J.’s “circle of benevolence”—a phrase the lawyer used to describe the defendant’s financial contributions to charity (which in fact were minimal) and to Nicole’s family (which were considerable). He said that O.J. suffered from arthritis so severe that on the day of the murder, “he could not shuffle the cards when he played gin rummy at the country club.” Cochran mentioned a dog walker by the name of Tom Lang (not the detective), who said he saw Nicole embracing a man on the street in front of her home on the night of the murder, as well as “a man that he described as Hispanic or Caucasian standing … there looking as though he was angry.” Cochran disparaged the work of the LAPD employees who had collected and analyzed the evidence, and he offered a brief criticism of the DNA evidence. At the same time, Cochran asserted that DNA tests (presumably reliable ones) proved that blood found underneath Nicole’s fingernails was inconsistent with her own, Goldman’s, or Simpson’s. Finally, Cochran returned again and again to Rosa Lopez—the next-door maid who would testify that O.J.’s Bronco was parked on Rockingham at the time that the prosecution asserted the murders were taking place. (In al
l, Cochran mentioned Lopez’s name more than a dozen times.)
It was, on one level, a remarkable opening statement. Cochran cited any number of specific witnesses who would directly contradict the government’s theory of the case. If the defense lawyers could back up Cochran’s claims, the prosecution’s case would be shattered. But as it turned out, they couldn’t; indeed, they didn’t even try. By the end of the trial, the defense would never back up any of Cochran’s startling claims. It would never call dog walker Tom Lang to the witness stand. It would never call Faye Resnick. It would never even call Rosa Lopez (although she would indeed become a participant in the trial.) The blood under Nicole’s fingernails turned out to be her own. The reason Simpson didn’t shuffle the deck of cards was because his friend Alan Austin didn’t let him: Austin knew O.J. always cheated when he dealt. And Cochran’s star witness, Mary Anne Gerchas, turned out to be a pathological liar who spent her life dodging creditors and who, shortly after Cochran’s opening statement, would plead guilty to defrauding the Marriott Hotel of more than $24,000. Before Gerchas pleaded guilty, she claimed that an impostor using her name had actually run up the bill at the hotel. The defense would never call Gerchas, either.
In his opening, Cochran built a Potemkin village of assertions. There was nothing beneath the rhetoric. No matter; the evidence mattered less than what Cochran said it would be. He had planted the seeds: The LAPD was corrupt; O.J. was virtuous; Nicole deserved what she got.
Cochran’s opening statement was also an unethical piece of lawyering. California discovery law obligated each side to turn over to the other all statements by witnesses it planned to call over the course of the trial. As part of the discovery process, starting even before the preliminary hearing, the prosecution had given the defense tens of thousands of pages of material. The defense, in contrast, had given the prosecution next to nothing. This was not in itself highly unusual—the defense in a criminal case always generates far less investigatory material than does the prosecution. But as the prosecution continued to demand defense-witness statements throughout the summer and fall and into the winter, the defense lawyers responded that they understood their obligations but had nothing to share.
Then, during Cochran’s opening statement to the jury, his majordomo, Carl Douglas, announced that he had found statements of twelve witnesses whom Cochran had suggested the defense was going to call. Many of these statements, including one by Mary Anne Gerchas, had been taken by the defense several months earlier. This discovery failure, as it is known, put the prosecutors at a real disadvantage—not so much because they couldn’t prepare for Gerchas’s testimony in the defense case, which would not begin for months, but because if Clark had known about Gerchas’s claims, she could have addressed them in her opening statement. The news of the Gerchas statement blindsided Clark and her colleagues.
The next day, Carl Douglas addressed the issue of the discovery failures by the defense team. Douglas made his living by keeping track of Cochran’s schedule and making sure Cochran had the right file in his hand at the right time. When the center of operations in the defense camp shifted from Shapiro’s office to Cochran’s after the first of the year, it was Douglas’s thankless task to untangle the files.
Now, in his arch, almost archaic speaking style, he tried to explain that the withholding of the documents had just been an unfortunate mistake. “The Court is well aware that we have been working diligently in this matter,” Douglas said. “The Court is equally aware that the work in this case has been divided among a couple of offices and investigators, et cetera. It perhaps is regrettable that I stand before this Court, that we have not coordinated all of our defense efforts as well as I would have liked before this point. I say that because, Your Honor, I have some documents that I do intend to give over to the people.… Your Honor, I acknowledge and I anticipate that there will be strenuous efforts to impugn both my personal integrity and the integrity of the defense team. I tell this Court, looking the Court straight in the eye with all seriousness, that it had been an oversight, and I am embarrassed by it and I take full responsibility.”
Ito, who had been studying the prosecution table as Douglas spoke, observed, “I have to say, Mr. Douglas, I’ve had long experience with Mr. Hodgman. I’ve known him as a colleague, as a trial lawyer, and I’ve never seen the expressions on his face that I’ve seen today.”
The judge turned to the bearded and usually stoic prosecutor and said, “Mr. Hodgman, why don’t you take a few deep breaths, and we’ll take a look at this.”
Among his other responsibilities, Bill Hodgman supervised the discovery process for the prosecution. The disclosure about these twelve witness statements came on top of the defense’s disclosure, one day earlier, that it had a list of thirty-four new witnesses it planned to call during the trial. These were appalling violations of the discovery laws, and Hodgman felt personally wounded by what he regarded as a dirty trick. In the Todd Bridges attempted-murder case, Hodgman had enjoyed a cordial relationship with Cochran; in a prosecution of financier Charles Keating before Judge Ito, Hodgman had likewise had the confidence of the court and his adversaries. As Ito observed, Hodgman now looked stricken.
Shapiro noticed, too. When Hodgman rose to speak, Jo-Ellan Dimitrius whispered to Shapiro at the defense table, “You know, Bill doesn’t look too good.” Shapiro agreed, then quipped, “Yeah, tomorrow they’re going to take him out on a stretcher.”
14. THANK YOU, CARL
I to broke for the day early on January 25 so that the prosecutors could regroup and decide what sanctions they would ask the judge to impose on the defense for its discovery violations. Hodgman trudged upstairs with his colleagues to weigh what they should do.
For Bill Hodgman, assignment to the Simpson case had paid few dividends. He did not escape all of his administrative responsibilities, yet he didn’t have full control of the trial, either. Though Clark had recently served as Hodgman’s assistant in the office, and though the two of them were nominally identified as co—lead counsel, the case remained fundamentally hers. Their temperaments were ill matched: Clark, mercurial, passionate, disorganized; Hodgman, methodical, contemplative, a little dull. He scheduled meetings at three-thirty, and Clark appeared at five. It wasn’t that Clark was slacking off—she probably worked more total hours than her colleague—but she did it in an anarchic manner that drove Hodgman to distraction. Hodgman felt betrayed, too, by the discovery violations and other ethical lapses of Cochran and his colleagues. In all, the pressure was great, the rewards few.
As Hodgman and Clark were briefing Gil Garcetti on the day’s events, Hodgman noticed a strange feeling in his chest. Not pain, exactly, but a tightening. He got up and walked around, but the sensation didn’t go away. At Garcetti’s suggestion paramedics were called, and at about 6:20 P.M., an ambulance took Hodgman to the California Medical Center. He was, at the time, forty-one years old. Doctors found an irregular pattern in his electrocardiogram and decided to keep him overnight. A senior member of Garcetti’s staff called Ito at home to give him the news, and by morning word of Hodgman’s hospitalization had leaked out to the news media. The hospital was promptly besieged by television satellite trucks, and white-jacketed doctors began conducting briefings in a manner usually associated with presidential illnesses. In the end, Hodgman was fine; his condition was temporary, seemingly the result of stress and overwork. Though he returned to the D.A.’s office after only a few days at home—and he continued to supervise the case—Hodgman had to yield his courtroom role. Henceforth, the case would be tried by Marcia Clark and Chris Darden.
Hodgman’s departure would turn out to be one of the most important events of the trial. His absence deprived the prosecution of a day-to-day center of gravity, a voice of calm and maturity. Hodgman could tell the difference between an everyday dispute and a bona fide crisis. Clark and Darden, in contrast, tried cases in an atmosphere of perpetual turmoil, much of it self-generated.
The shift in mood was immedi
ately apparent. Addressing Judge Ito about the discovery violations, Clark and Darden nearly became unhinged. True, the defense had engaged in rather cynical misconduct, but in the context of a long trial, the withholding of a few witness statements was probably not going to amount to much. What should have mattered more to the prosecution was simply getting the case under way and its witnesses on the stand. Instead, for several hours, Clark and Darden ranted.
Clark: “Unfortunately, because of the nature of this misconduct, which is egregious and flagrant and not the minor violation that [Cochran] attempts to represent to this court, he’s attempting to sweep it under the rug, claim ignorance and use Mr. Douglas as a sacrificial lamb, and that is absolutely inappropriate. Counsel should bear the brunt of his own misconduct, which is willful and deliberate and intentional, and it is in effect a thumbing of his nose at this Court’s order.…” And so on.
Darden’s behavior was even stranger. Cochran’s stature in L.A.’s black legal community was such that the relatively inexperienced Darden was, perhaps understandably, intimidated by his mere presence (and the older man would use this against the younger man time and again during the course of the trial). Cochran’s hold over Darden bordered on the mystical—or, more precisely, the parental. This often led the prosecutor to behave like an adolescent, appearing alternately to disdain and beseech his elder. When Cochran spoke in court, Darden would often hunch over in his seat, hold his head in his hands, puff his cheeks, and pout theatrically.
On this day (and several others during the trial), Darden seemed to blurt out the first thing that came into his head. “Had we known about some of these witnesses,” Darden said to Ito (and, quite obviously, the television camera), “we could have informed counsel that they are heroin addicts, thieves, felons, and that one of these witnesses, one of their so-called material witnesses, is the only person I have ever known to be a court-certified pathological liar.” This was a scandalous remark to make about a dozen people who had done no more than have their names mentioned by a lawyer in a criminal trial. To be sure some of them, like Gerchas, were questionable characters, but others were upstanding, ordinary citizens who had cooperated with both sides and simply remembered events in a manner helpful to the defendant’s case. Darden’s group libel reflected his own immaturity more than the witnesses’ true natures.
The Run of His Life Page 30
