But Ito let Johnnie flame on. The groundwork had been set for the defense to present for the jury a fantasy that had no place in a court of law.
Chris Darden appeared stricken. And what made things worse was the painful, public nature of his humiliation. The nakedness of it. With the whole nation-indeed, much of the world-watching, Johnnie Cochran accused a brother of selling out his race. What a despicable piece of shit!
I reached for the notepad and scribbled a note to Chris. “You were beautiful,” I wrote him. “You were great.”
To my deep astonishment, Ito did the right thing. In a ruling that was legally and logically sound, he stated that the defense would not be able to introduce evidence of racial animus unless they made an offer of proof showing how Fuhrman could have planted the glove. He even gave them a deadline: three days. If they could not come up with a proffer by nine A.M., Monday, January 23, there would be no N-words uttered in that courtroom.
I could practically hear the cheers from the eighteenth floor. Now, I thought, we really have a fighting chance.
On Monday morning-put-up-or-shut-up day-Lee Bailey stood and, without so much as a by-your-leave, reopened debate on the subject of racial animus. That he was allowed to do so was completely improper. The ruling had been made! Yet Ito allowed Bailey to rave on, unchecked, about how the N-word went to Fuhrman’s credibility.
“I cannot imagine a clearer case,” Bailey blustered, “of the defense having an absolute and inalienable, indelible, irrevocable right to smash into any person so low-life as to make those utterances and then to proceed to the witness stand and attempt to incriminate for murder through these defalcations and sporulation a member of the African American race… We’re not trying to prove that he planted anything because we don’t have to.”
(Bailey’s testimony sent me reaching for my Webster’s, which defines “defalcation” as “embezzlement” and “sporulation” as “the division of spores.” He may have been aiming for “spoliation,” which I see is defined as “the act of plundering.”)
In the face of this thunderous barrage of verbiage, Ito caved-and reversed himself. The defense could present witnesses who claimed to have heard Mark Fuhrman use the N-word within the past ten years.
I have never seen a man with so little spine.
If I had to point to the single most serious error that Ito made during this misbegotten spectacle, I would have to say that it was this inexcusable Fuhrman ruling. Race had no place in this trial. Once Ito had permitted the injection of racial venom, a conviction was remote, if not impossible. There would be at least one juror whose raw feelings would cloud his or her reason. From this point on, I sincerely believe, the best we could ever have hoped for was a hung jury.
I was both furious and demoralized. What we should do, I told myself angrily, was appeal the ruling to a higher court. It’s called taking a writ. But this was likely to be an exercise in futility. The Court of Appeals never likes to get involved in evidentiary decisions during the trial. In fact, I’d never heard of the prosecution’s winning one of those puppies. Besides, the real danger, of course, was that if I tried to get Ito reversed, he’d be so infuriated that he’d take it out on us for the rest of the case. Just what we needed-to alienate him hopelessly before we even reached opening arguments.
Looking back on this in the clear light of hindsight, though, I can see my reluctance for what it really was-a failure of nerve. I thought that if we could appease Ito and stay in his good graces, he would treat us fairly in front of the jury. If I’d known then what I know now-how he’d swat us around like stepchildren all throughout the trial-I would have taken that writ in the blink of an eye.
I didn’t realize that I had nothing to lose. I should have given it my best shot and taken the only opportunity I had to keep the defense from playing the race card.
I didn’t. And to this day it remains my most painful regret.
I was exhausted, feeling overwhelmed. Every night, I’d work till midnight, just shut the door and work. One afternoon I took a couple of hours off to get my hair done and I felt like a truant. Of course, I lugged along my law books to make the downtime count.
The next morning, I found myself mired in traffic. The rain was pouring down. I was totally frazzled. At home, my bedroom was leaking, my bed was soaked, and I kept getting sick. At court, they were about to hear a motion, but I was bumper-to-bumper in metal on the freeway. Ito was going to scream at me for being late, I knew it.
Everywhere I turned, I seemed to bang into a wall. There was Ito, increasingly cryptic and vain. He was starting to remind me of Marlon Brando in Apocalypse Now. There was Mark Fuhrman, either a bigot or a liar. There was the Brown family, avoiding us, but ladling out facts to a quickie biographer, and I’m thinking that the whole damned publishing world knows more about my case than I do. It was the most ridiculous situation I’d ever seen, and there I was stuck on the fucking Five, and every single thing I was seeing about human nature in this case was making me sick. I just wanted to cut out to an island somewhere, where I didn’t have to deal with anyone else.
For a while, I had been telling myself that once the opening statements were over, I could have some semblance of my family life back. But who was I kidding? Once the trial was under way, things would only get worse. Networks were going to devote their whole day’s programming to it. It was a goddamned industry. Without my having any say in the matter, I’d been turned into a symbol of Working Mother, Successful Professional, Voice of the People, Stand-in for Justice Itself. I took these things to heart and didn’t want to let anyone down. But, God, I was so tired.
On Saturday night, a little more than a week before trial, we were all bunkered into our offices, working. Bill came in to talk. He was unhappy. He confided that he felt he should retire as much as possible from the case; he felt very uncomfortable, he couldn’t relate to anyone or anything. “I don’t fit in,” he said, and I knew what he meant.
It was true. In one sense it was a woman’s case, it was a woman’s issue. In another sense, the defense had made it a race issue. Bill felt the jury would see him as a representative of the white male establishment, with no connection to the strong emotional issues of the case.
Chris felt he was in an ethical bind. He called me late one evening at home to fret about the Hodgman dilemma. We called each other more and more of an evening. I’d often talk to him while burning off tension on my exercise bike.
“We’ve got to give Hodgman some witnesses in the beginning of the case,” he’d insist.
Then I’d say, “No, don’t bother Bill. He doesn’t need it.” We just kept going round and round on this.
Right up to the last moment, the press and public assumed that Bill would make an opening statement. But it seemed awkward as well as cumbersome to divide the opening among three prosecutors. The way I envisioned it, Chris would lead off with the why of the crime, the motive: domestic violence. And I would follow with the how. A clean one-two punch.
There was work for Bill to do-and it wasn’t fun. It would be his job to question the coroner, Dr. Golden, whose reports were so flawed we didn’t want to flaunt them in the opening. The autopsies were also complex and difficult to summarize. In the meantime, we assigned to Bill the task of riding herd on Johnnie. Bill, sitting with us at counsel’s table, could register the objections whenever His Smoothness strayed out of line. That way, the jury wouldn’t become annoyed at Chris or me. Bill accepted this assignment with his usual grace.