That night, when I’d headed home and was preparing to drop into bed, Chris called me and told me to tune into Dateline. Quick. I switched on the TV in my bedroom and there was old Max Cordoba talking to Jane Pauley. He was denying ever having spoken to F. Lee Bailey. Not marine to marine. Not any other way.
Thank you, God.
The next morning, I awoke feeling as if trolls in knuckle studs had worked over my cerebral cortex. Mark Fuhrman was still on the stand. I groaned and pulled the covers tight over my head.
Now I accept it as a fundamental fact of survival that when one gets up in the morning, one must be prepared to do battle before the day is through. Not today. I couldn’t face it. I dragged myself into court intending to dump Bailey on Chris. But Chris would have none of it.
“C’mon, baby, you’ve got to do it.” He grinned. “Get in there and break off a piece for Daddy.”
I turned to Jonathan Fairtlough, who’d brought a copy of the Dateline tape.
“Cued up?” I asked him. My head was still pounding.
“All set, boss. You just say when.”
“No matter what you hear or see,” I instructed him, “when I tell you to play the tape, just do it.”
The point I rose to make that morning was a serious one indeed. An attorney for the defense had willfully misled the court. He’d claimed that he’d spoken to a witness when, in fact, he had not. It was this kind of fast-and-loose gamesmanship that in any other court would get a lawyer held in contempt.
“This is the kind of nonsense that gives lawyers a bad name, Your Honor,” I said. “He was intending to convey to the court that he had personal knowledge of what this man said because this man said it to him personally-‘marine to marine.’… That is nonsense.”
I asked Jonathan to roll the tape. Bailey saw what I was up to and began to yell at the top of his lungs that this was “outrageous.”
“Mr. Bailey-you can see how agitated he is-has been caught in a lie,” I observed to the court, “and you know something? Not in this case. You don’t get away with that. There are just too many people watching.”
Poor Jonathan looked like a deer caught in the headlights. But I calmly repeated, “Jonathan, roll the tape.”
Bailey continued screaming, but for once Ito wasn’t listening. He’d turned to watch as Cordoba, now blown up larger than life on the big screen, denied ever having spoken to Bailey. It was amazing. Only by seeing the events in his own courtroom on television could Lance understand what had happened! He asked me what sanction I felt should be imposed on the defense.
“I think that the witness should be precluded from testifying,” I said. “I think that Mr. Bailey should be cited for contempt and fined substantially. As an officer of the court, he has lied to this court.”
Bailey put his hand on the podium, trying to edge me out, but I wouldn’t budge.
“Excuse me, Mr. Bailey,” I told him. “Stand up and speak when it’s your turn.”
In a sidelong glance, I caught the hatred in his eyes. Bailey was an old-school lawyer. He was used to being able to bluster and bully his way through everything. He wasn’t prepared for a woman to take him on that way.
Lance looked thunderstruck. I could see he knew he’d been played for a fool. It was clear that Bailey would not be able to use his crazy Cordoba story in the Fuhrman cross, but I was really hoping Lance would also make Bailey pay for his deception. I was wrong. Bailey claimed he’d spoken to Cordoba through an investigator and how Cordoba had just forgotten that Bailey himself had come on the line to talk with him for a few moments.
Bottom line, Ito hated fighting more than he hated being duped. All he wanted to do was end the hostilities. He called Lee and me to apologize to each other and bury the hatchet.
I’m sure the look on my face said, Yeah, I’ll bury the hatchet-in his head, because when Lance saw it, he knew I was neither repentant nor inclined to fake it. He turned to Chris and asked him to try and reason with me.
“I don’t want to apologize,” I said under my breath. “I have nothing to apologize for. He lied and now he’s covering it up.”
But Chris didn’t listen to me. He turned to the bench and announced, “I’ll apologize for my warrior if you’ll apologize on behalf of yours.”
You motherfucker,” I mouthed to Chris. He’d just rolled me out like a Persian rug. When he returned to the table, I lit into him. “This is payback for the contempt thing. You’re still pissed about that, aren’t you? His expression was perfectly straight, but his shoulders shook with laughter. I couldn’t blame him. Lawyer gets caught lying on national TV. Judge won’t do a goddamned thing. What can you do but laugh?
The truce between Lee Bailey and me lasted about two seconds. Once again he was up on his feet, asking to address the court out of the presence of the jury. He’d brought along some props: a plastic bag and a pair of brown leather gloves. He wanted permission to show Mark the plastic bag. He wanted to put the gloves inside the bag and demonstrate how the witness could have secreted the package in his sock-which, he claimed, was a habit of old marines. Of course, he had not one scintilla of evidence to prove that Mark had ever done such a thing. The defense had been discomfited by the revelation that Mark rarely wore a jacket. I’d introduced this fact during the cops’ testimony, through photos taken at the crime scene. So if he had no jacket, how the hell could he hide the glove until he could plant it? Now Bailey wanted to give the jury a fallback scenario: that Mark stuffed the glove in his sock.
By the way, this proposed stunt was strictly improper. The law stipulates that any experiment or attempt to re-create an event must duplicate the original circumstances as nearly as possible. The standard is “substantial similarity.” It doesn’t take a legal wizard to see that there were no “original circumstances” here. There was absolutely no evidence that anything like this had ever happened. The experiment proposed by Bailey would be substantially similar to-what? A nonoccurrence? What it had, however, was tons of graphic prejudicial value.
As Bailey continued to outline his proposal, I thought, I shouldn’t even have to respond to this, it’s so ludicrous. But I knew that if I held my peace, Ito might well allow it.
So I argued to the court that you couldn’t justify an experiment when there’s not only no evidence to support that the event occurred, but there is evidence to prove that it never occurred. No one ever said they saw a plastic bag in anyone’s possession that night. Not to mention that there was no second glove available at Bundy to go into that bag.
The gloves were lying on the defense table. I picked them up to study them. They were size small-not extra large, like the gloves in evidence. The defense was obviously afraid that if it used gloves of actual size, either they wouldn’t fit in the bag or the bag would make a conspicuous bulge in the sock.
“This is ridiculous,” I told the court. “There is no connection to this case. A leather glove of a different size, a different color, a different make, a different style, that has no relevance to this case… This is a fantasy concocted by the defense for which there is no evidentiary basis, no logical or factual connection to this case.”
Ito tried to sort this out for himself. There was a disparity between the sizes of the two sets of gloves…