None of this is balm for O. J. Simpson, wondering whether he’ll have to spend years behind bars. The defense’s strategy seems to be fraying badly, even before it gets to present its case. Bailey’s melodramatic cross-examination of Detective Mark Fuhrman scored some key points but not the knockout that Simpson needed. One by one, witnesses who were expected to provide alibis or build the theory that he was framed by a racist cop are self-destructing. The latest was Cordoba, whose on-again, off-again claim that he was called ““nigger’’ by Fuhrman would surely cause jurors to suffer credibility whiplash. A weary defense source acknowledged as much to Newsweek. ““He’ll be another one we s—can,’’ he predicted – meaning not call. The Fuhrman-framed-me defense appeared so tattered, in fact, that Simpson’s lawyers were readying another one. Bailey implied that the actual killer tossed a bloody glove on Simpson’s property to confuse police.
The defense, which won’t present its case for at least a month, needn’t prove anything, of course. It can toss out as many theories as it wants, hoping something sticks – and that’s about what it seems to be doing. But in his opening statements in January, lead lawyer Johnnie Cochran put himself in a bind by naming individuals who would be key witnesses for Simpson. Already two of them are in vapor-land. One is Mary Anne Gerchas, who Cochran said would testify that she saw four men leaving the crime scene. But since the start of the trial, Gerchas has been arrested twice on felony charges involving fraud. She pleaded not guilty. Last week Cochran withdrew her for now as a potential defense witness.
Then there’s the alibi witness. Rosa Lopez, the Salvadoran maid who claimed that Simpson’s Bronco was parked outside his house when prosecutors say the murders took place, was shredded in a cross-examination noted for her inconsistencies. As a result, the defense might not play her taped testimony to the jury. But not calling Gerchas and Lopez risks alienating the jury. ““The defense’s opening statements made a big splash, but now the defense is drowning in its own promises,’’ says Laurie Levenson of Loyola Law School.
Cordoba had been expected to bolster the Fuhrman-as-racist theory. This was crucial to the defense, for if it could be shown that the detective was a bigot with a badge, then a juror might find that Fuhrman had a motive for planting evidence against Simpson. But Cordoba seemed to implode last week – and was responsible for setting off the row between Bailey and Clark. It started when Bailey told Judge Lance Ito that Cordoba, a former marine, would testify that Fuhrman called Cordoba a racial epithet a decade ago. And, Bailey assured Ito, Cordoba told him personally – ““marine to marine’’ – that he would take the stand to say so. But that night Cordoba told ““Dateline NBC’’ that he hadn’t spoken to Bailey. Armed and dangerous the next morning, Clark ridiculed Bailey and his machismo, accusing him of lying. When Bailey tried to interrupt, Clark, her back turned contemptuously to the famed lawyer, snapped, ““Stand up and speak when it’s your turn.''
Things got curiouser that night. Cordoba told ““Dateline’’ that in fact he did speak to Bailey; he had ““blanked’’ when asked. But that flip-flop isn’t the only grist for the prosecution should he be called to testify. He told prosecutors and news outlets months ago that Fuhrman had never made racial slurs to him. Why did he remember now? Because he dreamed of the incident in January, he told ““Dateline,’’ which set off ““flashbacks of what transpired.’’ The tension between Bailey and Clark flared again when the defense lawyer tried to introduce a glove into evidence. Clark objected: ““Size small,’’ she said sarcastically. ““I guess it’s Mr. Bailey’s glove.’’ Ito later forced the two lawyers to apologize to each other.
Things weren’t all bleak for the defense. Bailey opened some holes in Fuhrman’s testimony that could be exploited later. The detective admitted he was alone at the crime scene for five seconds, which Bailey posits was enough for him to grab the second bloody glove, stick it in a plastic bag and hide it in his sock – marine style. Fuhrman’s denial that he made racist remarks to Kathleen Bell, a real-estate agent, will undoubtedly be contradicted by her testimony. Fuhrman also denied he has used racial slurs in the past 10 years – although Newsweek reported earlier that Fuhrman conceded during a mock grilling by prosecutors that he had. And as for the long list of complaints Marcia Clark leveled against him last week, Bailey can rest assured that it’s not size that counts.
