“Your Honor,” Johnnie interrupted. “She is starting to argue now.”
“Sounds like argument to me,” Lance agreed.
The objection annoyed me, but I pressed on.
“My job is to seek justice,” I continued. “… You will have to remember what this case is about: justice for all. Ladies and gentlemen, if those words are to mean anything, we must all be equal in the eyes of the law and we cannot use a sliding scale to judge guilt or innocence based on a defendant or a victim’s popularity. We live in very, very strange times…”
Once again Johnnie broke in, “Your Honor, she is arguing.”
“Counsel,” Ito addressed me impatiently. “This has all been argument for the last five minutes.”
Now this may not sound like any big deal to you. But, believe me, it was a very big deal. In opening statements all that we lawyers are allowed to do is to lay out the facts, not attempt to persuade. The distinction, however, is often blurred. As a practical matter a judge will allow both sides considerable latitude in their openings. I felt my remarks were well within bounds. Johnnie was just prodding to see how easily he could shut me down-and, more important, if Lance would let him.
Lance did. He sustained the objection in such a cutesy, condescending way as to make it clear that he and Johnnie were on exactly the same page.
I tried to continue.
“We cannot succumb to the temptation to thwart justice and throw truth out the window.”
“I’m going to have to stop you right here,” Lance announced. And he dragged me over to sidebar-in full view of the jury-and scolded me for ignoring his admonishments.
Now, I’ll tell you what’s bad about that. It sends a message to the jury that the judge has no great respect for the prosecutor. And that’s a real unfair message to send-especially on the very first day, when the jurors have their antennae up, looking for clues as to whom to believe. Lance’s attitude toward me had a lot to do with his own ego. As an ex-prosecutor, he felt compelled to show us, “I used to do what you do and I did it better.” Whenever Johnnie rose to speak, however, Lance’s whole demeanor changed. He was beneficent. He was indulgent. It seemed to me Lance Ito just loved the idea of being Johnnie’s friend.
Lance still had me at sidebar. And now he was ordering me to “say ‘thank you, ladies and gentlemen,’ and wrap it up.”
I was seething. Nevertheless, I returned to the podium, smile pasted on my face, and delivered my parting line as gracefully as I could.
“Ladies and gentlemen. I want to thank you very much for your kind attention in this matter… We all know it is difficult and we appreciate all of your dedication to duty and service in this case. Thank you very much.”
After I sat down, there was a minor hullaballoo. Court TV’s cameraman had inadvertently photographed an alternate juror. Ito went ballistic and threatened to pull the cameras from the courtroom. So much time was pissed away resolving this fracas that Johnnie did not get to begin his own opening that afternoon. There was much wailing and gnashing of teeth on the defense side about how unfair it was to the poor defendant to let the jurors go back to their rooms and dwell on the prosecution’s allegations overnight.
The fussing was just a smoke screen. In fact, we were about to be ambushed-but good.
Ito had ordered both sides to produce any exhibits they intended to use within forty-eight hours of opening statements. Our graphics people had worked into the wee hours of the morning to make that deadline. The defense guy in charge of discovery, Carl Douglas, had led me to believe his side was similarly squeezed. It wasn’t until the evening before Johnnie was to give his opening that Carl handed me some eight-and-a-half-by-eleven reproductions of the display they intended to use. Most were too smudged to be legible.
“You call this discovery, Carl?” I asked him, incredulous. After I showed him one particularly muddy page, he agreed to go over the particulars with me. “Just because I like you, my sister.”
Before we broke for the night, Carl mentioned that there might be “a few more… nothing major.” I was sympathetic to the problem of having to produce everything so quickly, so I asked him to let me see what he had first thing in the morning. He agreed.
Next morning, when I walked into court, I saw fifteen boards stacked against Deirdre Robertson’s desk. What the hell was this? There were about twice as many exhibits as Carl had shown me the night before. As I got close enough to read them, I was horrified. One entire display was devoted to the results of serologist Greg Matheson’s analysis of the evidence. This included the socks found at the foot of Simpson’s bed. Under a column labeled “Testing,” there was an entry that read “Blood search. [None obvious.]”
The quote was taken from Greg’s own notes. He made them in June 1994 after examining the dark socks for blood under natural light. He’d found “none obvious.” But then he scheduled the socks for a blood search. Several weeks later, after blood was found, conventional serology testing confirmed the blood markers belonged to Nicole. The defense display board juxtaposed the June finding of “none obvious” with the later results showing Nicole’s blood on the socks.
Now, why was this such a big deal? Because it played right into the defense’s conspiracy theory. If they could get the jurors to believe that there was no blood on the socks as of June, then the blood tested later had to have been planted. At my angry insistence, Ito made them change the labels on the board to reflect the truth. But he gave us only fifteen minutes to study the remaining exhibits. There was simply no way we could uncover and correct all the deceptions.
The imbroglio over the displays, it turned out, was just the warm-up number. When it came time for his opening, Johnnie launched into a flame that was one part sermon, three parts argument. It, like the exhibits, was shot through with misrepresentations. He called the jury’s attention to a report that showed that blood found under Nicole’s fingernails was type B. That was not her type; nor was it Ron Goldman’s or O. J. Simpson’s. Logical inference? The blood under Nicole’s nails must belong to the “real killer.” What Johnnie failed to share with the jury was the very next line in the report: “Nicole cannot be excluded as a source of blood if… type B observed on the items were degraded from BA [Nicole’s blood type] to… type B.”
Further DNA testing revealed that it was, indeed, her blood.
Johnnie rambled on and on, tossing out the names of witnesses who had never been introduced in discovery. This was strictly illegal. During the pretrial hearings, Judge Ito had sanctioned the prosecution for two-week delays between taking witness statements and turning them over to the defense. But the defense had been sitting on some of these statements for over seven months, seven months!! And they were introducing these witnesses only now-during Johnnie’s opening.
One of these lamers was Mary Anne Gerchas, who, Johnnie promised the jury, would testify that she saw four men-two Hispanic and two white-running from Nicole’s condo the night of the murders. Johnnie also promised that a mystery witness-a maid of one of Simpson’s neighbors-would tell how she saw Simpson’s Bronco parked on Rockingham right around the time of the murders. And then, of course, there was Dr. Lenore Walker, the so-called mother of the battered women’s syndrome, who would supposedly testify that O. J. Simpson’s abuse of Nicole was not the sort of violence that normally precedes a homicide. From the moment I heard that, I vowed to take the cross of Dr. Walker on myself. Of course, she evaporated, like so many of the phantoms Johnnie invoked during his opening.
Lance just let Johnnie run on. Chris and I were sitting at counsel table hissing to Bill. “Object! Object! Bill, are you going to object?”