When I heard this, it clicked into place why Kato felt he’d needed to bring his attorney along to the grand jury way back when. Simpson was making what was, most likely, a ham-handed attempt to manipulate his testimony. Kato must have felt himself caught between a rock and a hard place. Clearly, he still felt that way, because I had to struggle for every shred of information from him. He never volunteered anything, and when I forced him to describe something, he’d give the sketchiest possible rendition, always skewed toward protecting his friend. It was like interviewing a defense witness.
Which, of course, he was.
And that meant I had to develop a strategy for handling him on the witness stand.
First, I figured, I would get all I could the nice way. I wouldn’t alienate him before extracting everything he’d give me without a fight. Then I’d see how he did on cross. If he screwed up-tried to backpedal-it would actually make his direct testimony look more credible, because the jury would see how much he loved the defense. Then, on redirect, I’d hit him with the hard stuff. And I had an idea for how to do just that.
Kato Kaelin took the stand the morning of March 21, wearing a fashionable blazer and black jeans. His direct testimony was every bit the struggle I’d anticipated. Every time I asked Kato how Simpson had behaved, looked, or spoken, Kato, running his hands through his hair and chopping up his sentences like a sushi chef, went out of his way to describe it as the picture of normalcy. Simpson was “tired, “rushed.” Perhaps a little “upset,” because Nicole hadn’t let him see Sydney. But never “frazzled” or “angry.”
One of the facts that Kato had let slip during our pretrial interviews was that Simpson and Paula Barbieri had had a blowup on the night before the murders. Paula wanted to attend Sydney’s dance recital the following day as a show of good faith on Simpson’s part. She apparently wanted him to announce to Nicole and his ex-in-laws that she was his woman now. Paula was stung at Simpson’s refusal, and she ended up skipping to Las Vegas, where she checked into the Mirage Hotel as one of a party on a reservation guaranteed by singer Michael Bolton. But if Simpson attended the recital unaccompanied, hoping to patch things up with Nicole, his own hopes were dashed. Nicole wouldn’t have him. To make it worse, she dissed him in front of everyone by pointedly excluding him from the family celebration at Mezzaluna.
When he returned home to Rockingham in the wake of that disappointment, he said something disparaging to Kato about the sexy little black dress Nicole wore to the recital. Kato recalled the remark to me as something like, “Man, I see Nicole and her friends in those little tight-ass dresses and I wonder what they’re going to do when they’re grandmas.” At the grand jury, however, Kato said Simpson had simply appeared to be “joking” about the dress.
Now, on the stand, Kato once again did his best to downplay the implications of Simpson’s remark. The matter came up late, after his halting direct testimony, and, as I suspected, a cross-exam where Bob Shapiro cuddled up to him like a buddy.
It was now my redirect, and I was ready. “Your Honor,” I said to Ito, “I am going to ask the Court to take this witness as a hostile witness.”
There were several advantages in doing this. For one thing, it would underscore that Kato was a defense witness. That would give the jury notice that any evidence he gave to incriminate Simpson was the real goods. But even more important, once a witness is declared to be hostile, you get to ask leading questions. Ordinarily, when a lawyer calls a witness, he has to ask open-ended questions that don’t suggest the answer-that’s what distinguishes direct examination from cross-exam. With a hostile witness, in effect, you get to cross-examine your own witness.
Only then, with the freedom to ask leading questions, did I get Kato to concede that Simpson’s comment about Nicole’s little black dress was spoken with a certain degree of “upsetness.”
“Now, is it your testimony today that he was more upset about [Nicole not letting him see] Sydney than he was about Nicole wearing the tight dresses?” I bore into him.
“Yes.”
“But that was not your testimony before, was it, Mr. Kaelin?”
“No.”
“Earlier you had testified that he was ‘relaxed’ and ‘nonchalant’ when he spoke about Sydney and the recital?”
“That’s what I remember.”
“Isn’t it also true that you testified previously in this trial that he was more upset about Nicole wearing the tight dresses than he was about not being able to see Sydney, is that right?”
“Yes.”
“Now you are changing that testimony; is that what you are doing, sir?”
“Yes.”
After the verdict, when it became clear that Simpson’s acquittal would not restore his former status, Kato lost the surfer-boy stutter, bought a pair of specs and a blazer, and experienced a spell of enhanced memory. For the benefit of the plaintiffs in the Browns’ and Goldmans’ civil suits against Simpson, Kato could suddenly recall that Simpson had been upset and unsettled about Nicole since the day before the murders, when he’d watched The World According to Garp. The film’s oral-sex scene had reminded him of Nicole’s tryst on the couch with Keith Zlomsowitch. He’d been upset with Nicole at the recital and accused her of playing “hardball” by not letting him see Sydney. Kato Kaelin certainly wasn’t the only one to remember the truth by the time the civil trial came around. But he typified the appalling, self-absorbed popularity junkies with no moral compass who came creeping out of the woodwork to offer information that they’d shamefully refused to give us.
The weird thing about Kato’s trial appearance was that, despite all the pulled punches, his essential testimony would have been devastating to the defense if a thoughtful jury had listened. Take, for instance, his account of the trip to McDonald’s. Something about that whole business had struck me as phony from day one. Simpson comes to Kato’s room saying he needs to borrow five dollars to pay the skycap? All he’s got is hundred-dollar bills. In the next breath he’s saying that he’s going out to get something to eat. Common sense compels one to ask, “If he’s going out, can’t he get change himself?”
Kato then gives him a twenty but when it comes time to pay for the food at the drive-in window, Kato pays again. And Simpson gives him back all the change. By now, Simpson has had two opportunities to get change, but he bypassed them both. Why?
Because he intended all along to set Kato up as an alibi.
When Simpson went out back to the guest house to ask Kato for change, it was solely for the purpose of having Kato notice he was at home, and to give his McDonald’s outing as an explanation for his impending absence. But then Kato invited himself along and screwed up the plan. I had to chuckle privately at Simpson’s predicament. He thinks he’s home free when Kato-that perennial wad of gum stuck to the Bruno Magli loafer-crashes the dinner party. He can’t refuse to take Kato. That would look worse than not having spoken to him at all.
“You invited yourself to go with him?” I had asked Kaelin while still on direct. “He seemed real excited to have you come?”
Kaelin paused for a moment. “Wouldn’t you?”
Laughter rippled through the courtroom. But Kato had succeeded in sidestepping an important point. The moment was lost. I could have choked the little creep.
The fact is, Kato’s tagging along uninvited tightened the schedule that Simpson had given himself for committing murder. That explained why Simpson ate his burger while driving instead of taking it into the house, as Kato had. It would also explain why, when they returned to Rockingham and Kato began walking toward the front door, Simpson hung back at the Bentley. When Kato finally got the hint that Simpson had no intention of spending any more time with him, he returned to his room in the guest quarters.