Darden asked about O.J.’s demeanor that night.
“Um,” said Denise, “he had a very bizarre look in his eyes. It was a very faraway look.… It wasn’t like O.J., just walking into a place and being, you know—‘Hey, here I am’—you know, kind of sure of himself type of attitude. It was more of a—of a—like a glazed over, kind of frightening, dark eyes. It just didn’t look like the O.J. that we knew.”
Perhaps Denise really did see O.J. this way. But Cochran had these jurors pegged; unmoved by her tears, they regarded Denise with cold, hard stares.
Denise Brown’s testimony essentially closed the domestic-violence part of the prosecution’s case. To a jury predisposed to believe such evidence—or one inclined toward hostility for the defendant—the presentation might have had considerable impact. After all, O.J. had been convicted of beating his wife, and there had been a handful more of incidents of violence, at least according to her sister. The 911 tape from 1993 suggested that O.J. was certainly capable at least of violent anger toward his wife, and the stalking evidence, even if ambiguous, suggested a continuing obsession on his part. Overall, however, the domestic-violence evidence was just short enough of overwhelming that the defense could continue to ignore it. Shapiro, for example, barely cross-examined Denise Brown. Cochran’s mantra from his opening—this is a murder case, not a domestic-violence case—remained the core of the defense strategy.
So the prosecution, at this point, set out to prove its murder case. Marcia Clark called a series of witnesses who had testified at the preliminary hearing: the waiters at Mezzaluna who had served Nicole and her family on June 12; the bartender who took the call from Juditha Brown at about 9:40 P.M. and then ran out to the sidewalk to locate her dropped glasses; the dog walkers who tended to Nicole’s bereaved Akita and then located the bodies. The defense lawyers mostly gave these early witnesses a pass—until the police officers started taking the stand.
Cochran’s entire demeanor changed when he rose to cross-examine Robert Riske. A uniformed patrol officer, Riske had been the first member of the LAPD on the crime scene at Bundy, arriving at 12:13 A.M. on June 13. Under Clark’s questioning, Riske had testified about being directed to the bodies by Sukru Boztepe and his wife, Bettina Rasmussen. Riske had actually done very little. After briefly inspecting the bodies, he had walked through the house, collected Justin and Sydney from their upstairs bedrooms, and called for reinforcements. (Racial antennae were high even during this innocuous testimony. Riske mentioned that a sergeant named Coon arrived on the scene, prompting Clark to ask, “That Sergeant Coon, is he any relation to another one?” As this jury surely knew, Stacy Koon was one of the officers who had beaten Rodney King. There was no relation.)
Two themes stood out in Cochran’s cross-examination. First, he asked any number of questions about the cup of Ben & Jerry’s ice cream that Riske had discovered on a back stairway. Riske had said the dessert was “melting,” not “melted.” To Cochran’s way of thinking, that meant that the time of the murder must have been at 11:00 P.M. or even later; otherwise the ice cream would have been completely “melted.” What kind of ice cream was it? Did you take any pictures of it? Where exactly did you find this ice cream? Why didn’t you photograph the ice cream, preserve it, analyze it? Incredibly, Cochran spent several hours on this trivia with Riske and the officers who followed him.
The other theme was the coroner, who had not arrived on the scene to remove the bodies until 9:10 A.M. Again, according to Cochran’s suggestions to the jury, if the coroner had arrived on the scene earlier, he might have been able to pinpoint the time of death. Many more hours of cross-examination were devoted to this subject as well.
These two subjects had another common thread: As defense arguments, they were absurd. The police had no way of knowing for sure how melted the ice cream was when it was first placed by the stairs, presumably by Nicole. Thus, examining or photographing the ice cream later would have yielded no relevant information. Likewise, even if the coroner’s representatives had come to the murder scene within minutes of Riske’s arrival, they could not have made a relevant finding on the time of death. The prosecution asserted that the murder took place starting at about 10:15 P.M.; the defense claimed 10:35 P.M. or later. Forensic pathology is simply not capable of narrowing down with such precision a time of death. However, these arguments over the ice cream and the coroner still served Cochran’s purposes. As the questions were raised over and over again—to Riske; to his boss, Sergeant David Rossi; then to Detectives Ron Phillips and Tom Lange—Cochran put the officers on the defensive. By sheer force of repetition, Cochran made it sound like there had been some major police lapse at the crime scene. The focus thus shifted from O.J. Simpson to the deficiencies of the LAPD.
Cochran spent four days cross-examining Lange, the co—lead detective with his partner, Vannatter. Lange would not be riled. In fact, sometimes it seemed the detective was having trouble staying awake. Bald, with a bushy mustache that seemed to camouflage any change in expression, Lange met each of Cochran’s sallies with a phlegmatic reply. No, he didn’t call the coroner right away; no, he didn’t preserve the ice cream. In some respects, Cochran broke the rules of cross-examination. He didn’t ask closed-ended questions—that is, questions that can be answered only yes or no. Cochran’s attention wandered, and he let his witnesses wander, too. But what Cochran did very effectively was tell stories. The answers to his questions almost didn’t matter. Cochran was talking to the jury.
Telling a story is precisely what Cochran was doing when, early in the cross-examination of Lange, he asked about the detective’s arrival at the murder scene. “And then you drove from your home in Simi Valley down to the location, is that right?”
“Yes.”
“And how long did it take you to get from Simi Valley to the location in Brentwood?”
“Perhaps fifty minutes …”
The incantation of the fact that Lange lived in Simi Valley was anything but accidental. The place—even just the words “Simi Valley”—was anathema to black (and many white) Angelenos because it was the site of the notorious acquittal, on state charges, of the police officers who beat Rodney King. Overwhelmingly white, highly conservative, and not coincidentally the home of many Los Angeles police officers, Simi Valley had a reputation as the paradigmatic racist Southern California community. Cochran wanted the jury to know that Lange lived there.
The reference had actually been long planned. Bill Pavelic, the ex-LAPD renegade working for the defense team, had run the detectives’ names through several directories and never learned where they lived. But one time when Pavelic and the detectives were standing around during a search at Simpson’s property, Pavelic decided to make conversation with Lange. It was all very casual.
“Did you get much damage in the earthquake?” Pavelic asked.
“Not too bad,” said Lange.
“Oh, where do you live?”
“Simi Valley.”
Knowing he could use it, Pavelic filed the information away, and eventually he passed it along to Cochran.
During the cross-examination, shortly after the first two references to Lange’s home in Simi Valley, Cochran asked another question about some evidence the detective had found at Simpson’s home.
“You took those shoes home to Simi Valley with you?”
“That is correct,” Lange said.
Cochran used the early part of his cross-examination of Lange to expand on his theme of Nicole-as-sexual-predator. He asked pointedly if Lange had requested that Nicole’s body be tested with a rape kit. Since there was no evidence that she had been sexually assaulted—no removal of her clothing, for example—the only purpose of such a test would be to see if she had recently had intercourse. Cochran dwelled lovingly on the number of candles burning in the house when Lange arrived. In the living room? Yes. In the bedroom? Even in the bathroom? Yes. And, of course, the large bathtub was full of water.
“So would you say there were at least n
ine candles altogether burning at this point?”
“Yes.”
There was even music playing. “What kind of music did you hear?” Cochran asked.
“It seemed to me to be a new-wave-type music, instrumentals,” Lange said, apparently searching for the term New Age.
Cochran asked: “Kind of soft, romantic kind of thing?”
Lange said he couldn’t be sure, but the answer to a question like that one doesn’t matter.
Cochran interspersed a series of questions about frequent visitors to Nicole’s home, pointing out that Marcus Allen, the football star, seemed to be among the regular guests. He let linger the issue of what Allen was doing with Nicole.
“Did you know whether or not Miss Nicole Brown Simpson had a visitor that evening after 10:00, a male visitor? Do you know that?”
Ito overruled an objection and let Lange answer: “The only male visitor I’m aware of is the other victim.”
As if the point could be missed, Cochran followed up with “But in your investigative capacity, you decided not to order this rape kit which you could have ordered. Isn’t that correct, sir?”
It was correct, and Cochran wasn’t asking about rape. It was as if he had heard every argument made by Don Vinson, the prosecution’s ignored jury consultant. The questions reinforced the jury’s picture of Nicole as a slut who pursued men in general and craved black men in particular.
Chris Darden suffered as he watched Cochran push these buttons, and he took out his frustration in a particularly inappropriate way. On the night of February 22, the first day of Lange’s cross-examination, Darden was working in his office when he saw the daily discussion of the trial on Rivera Live, on the CNBC cable network. Darden called in to the station to add his own analysis (although, implausibly, he later asserted that he did not know his comments were being broadcast). Speaking with Geraldo Rivera, Darden laid into Lange’s performance as a witness. “I would like the officers to be a bit more aggressive,” Darden said. “They are answering the questions being put to them, and I think some of the questions, I think, are a bit ridiculous. And I wish that they would point that out to the jury on occasion.” Speaking of Cochran, Darden added, “I am sure he is scoring some points.”
Darden’s ill-advised phone call did nothing but make trouble for him. For starters, it was unseemly for a prosecutor in the middle of a murder trial to shoot the breeze with a talk-show personality. That alone violated the D.A.’s office policy. More important, Darden was publicly criticizing an ostensible ally, Lange, and implicitly chastising all of the officers who had testified. On Thursday morning, February 23, Darden’s colleagues made it clear to him that he should cease his role as a TV trial analyst. Lange and Vannatter—who stewed throughout the trial about a perceived lack of support from Clark and Darden—were furious.
Cochran sensed this prickly atmosphere and sought to exploit it. His suggestions on his second day of cross-examining Lange were even more outlandish, especially when he returned to his favorite project, dirtying up Nicole.
“Now,” Cochran began, “during the course of your investigation, do you know who Faye Resnick is?”
“Yes.”
“And how did you become aware of the name Faye Resnick during the course of your investigation?”
“When I learned that Faye Resnick was a friend of victim Nicole Brown Simpson,” the detective explained.
Cochran wanted his Faye Resnick theory in front of the jury—the idea, which never had any evidence to support it, that the murders had been committed by drug dealers looking for Resnick. To that end, Cochran needed to establish that Resnick had lived with Nicole for a few days in the beginning of June. But Cochran did not want to call Resnick as a defense witness. She loathed Simpson, thought he was guilty, and asserted that O.J. had told her he wanted to kill Nicole. Under the rules of evidence, Cochran couldn’t call her as a witness to tell some things (that she had moved in with Nicole) but not others (that O.J. had told her he wanted to kill Nicole). So Cochran tried to get his desired sliver of the story in through Lange.
“Did you learn,” Cochran asked Lange, “whether or not Faye Resnick moved in with Nicole Brown Simpson on Friday, June 3, 1994?”
Clark objected. The answer called for hearsay—i.e., what someone had told Lange. Ito sustained it.
Cochran tried another tack. “Did you ever ascertain whether or not Miss Nicole Brown Simpson had anyone who lived with her in the month before June 12, other than the children?”
Yes, said Lange.
“Did you find out … that Faye Resnick moved in with Nicole Brown Simpson on or about June 3, 1994?”
Clark objected, but this time Ito let Lange answer, and the detective said he had heard that Resnick had moved in on that date.
When Cochran asked another question about Resnick, Judge Ito called the lawyers to the sidebar. He posed a question that revealed much about his judicial philosophy, asking Clark if Resnick really had lived with Nicole. “Is this a disputed fact?” As always, Ito cared more about getting accurate information to the jury than about some of the finer points of evidence law. Clark was so angry she could barely speak. “I’m not—” Clark sputtered, “I’m not sure when Faye Resnick lived with her, if they ever lived there on any kind of a permanent basis.… It doesn’t matter whether it is a disputed fact or not.… We have all kinds of slop in the record now that has been thrown in front of this jury through counsel’s method of cross-examination by saying, ‘Have you heard this,’ ‘Do you know about that.’ ” Clark said Cochran should call a witness who could testify from firsthand knowledge that Resnick lived there.
Hearing this, Cochran decided to twit his adversaries. “I can choose the witness that I want,” Cochran said. “They obviously haven’t tried any cases in a long time, and obviously don’t know how, but this is cross-examination.”
Darden rose to Cochran’s taunting, saying in a voice loud enough to be heard across the courtroom: “Who is he talking about, doesn’t know how to try the case?”
“Wait, Mr. Darden,” Ito instructed. In an effort to keep some semblance of order, the judge had made a rule that only one lawyer per side could speak on any issue. This was Clark’s issue—and besides, Darden was just sparring with Cochran.
But Darden didn’t wait—he couldn’t control himself where Cochran was concerned, and he kept on talking against the judge’s orders. “Is he the only lawyer that knows how to try the case?” Darden blurted out.
Ito was appalled at Darden’s direct violation of his order: “I’m going to hold you in contempt,” the judge threatened.
Darden couldn’t stop. “I should be held in contempt. I have sat here and listened to—”
“Mr. Darden,” Ito continued, “I’m warning you right now.”
“This cross-examination is out of order,” Darden shot back.
Ito moved from his position by the sidebar back to the bench. Sighing, he excused the jury. The lawyers returned to their respective tables. The brief pause should have broken the tension and given Darden a moment to compose himself.
After the jury left, Ito turned to Darden. “Mr. Darden, let me give you a piece of advice. Take about three deep breaths, as I am going to do, and then contemplate what you are going to say next. Do you want to take a recess now for a moment?”
“I don’t require a recess,” Darden said.
“I will hear your comments at this point. I have cited you. Do you have any response?”
“I would like counsel, Your Honor,” said Darden. (It is not a good sign when a prosecutor feels the need to have his own lawyer in the middle of a murder trial.)
“You can have counsel,” Ito said coolly.
It was so simple. All Ito wanted was an apology. Every trial lawyer knows that judges sometimes act irrationally, rule incorrectly, act impetuously. Here Ito had arguably made a mistake by letting in hearsay evidence, and Darden had exploded. His job, his obligation as a prosecutor, was to apologize and get on with the case
. Gracious and tolerant to a fault, Ito could not have been clearer about what he wanted, saying, “I invite counsel to … think very carefully about what they are going to say to the Court next. That is an opportunity to get up and say, ‘Gee, I’m sorry, I lost my head there, I apologize to the Court, I apologize to counsel.’ When I get that response, then we move on.”
Ito gave Darden a moment to confer with Clark. They stepped aside, and Darden shook his head. When Ito asked what they had decided, Clark said again that Darden wanted a lawyer for the contempt proceeding. Ito gave Darden more time to think it over. Once again, Clark said that Darden wanted to be represented by counsel. He would not apologize. Darden stood alone by the jury box, head down, arms crossed in front of him, agonizing.
Ito would be pushed no farther. “I’ve offered you now three times an opportunity to end this right now. This is very simple.” More silence.
Gerry Spence, the Wyoming attorney, was seated in the press section of the courtroom. (He was doing commentary on the trial for CNBC and other television stations.) Spence was so frustrated by Darden’s intransigence that he slammed a pad down on his thigh and said, “Jesus Christ!”
“Mr. Spence, your comments aren’t necessary,” Ito said.
Still, Darden said nothing.
Christopher Darden was no fool. He knew he should have learned to ignore Johnnie Cochran. Yet Darden’s feelings were so intense that he couldn’t help himself.
In some respects, Darden’s family story bore an uncanny resemblance to Cochran’s. Both their families had come from the South, and both had arrived on the West Coast as part of the great migration of African-Americans drawn by the prospect of work in factories during World War II. The Cochrans came from Louisiana and settled first in Oakland; Chris Darden’s father came from outside Tyler, Texas, and settled in Richmond, the city next door to Oakland. While Johnnie Cochran, Sr., had found work building troop ships for Bethlehem Steel, Eddie Darden welded submarines for the navy.
The Run of His Life Page 33
