LOS ANGELES -- Perry Mason would have been lost at the O. J. Simpson trial.
The famed TV lawyer won his cases through surprise, pulling the rabbit out of the hat -- and the witness from the back of the courtroom -- at the last exciting minute.
But in 1990, the people of California decided that trials were exciting enough and they passed a voter initiative requiring both sides in criminal trials to reveal their witnesses to each other before the trial begins.
On Wednesday, however, the prosecution in the Simpson case sat in openmouthed amazement as lead defense attorney Johnnie Cochran dropped bomb after bomb when he brought up surprise witness after surprise witness in his opening statement to the jury.
There was Mary Anne Gerghas, for instance, who supposedly will testify that she saw four men, none black or resembling
Simpson, running from the vicinity of the crime scene on the evening of the murders of Nicole Brown Simpson and Ronald Goldman.
But yesterday the prosecutors vigorously objected that they should have been told all about Gerghas -- her name, her address and a transcript of her statement -- before Cochran opened his mouth about her to the jury.
Why? So the prosecution could have checked out Gerghas and dealt with her in its own opening statement, as the law allows.
"Had the prosecution known in advance, we would have discredited her," Assistant District Attorney Christopher Darden told Judge Lance Ito yesterday with the jury out of the courtroom. "We have now only known about her for 24 hours, but we know she has nine lawsuits pending against her, she has written $10,000 in bad checks, and has defrauded J. W. Marriott of $23,000 by staying in their hotel and not paying."
In fact, Darden continued, the prosecution believes the woman who the defense claims to be Mary Ann Gerghas may not even be the real Mary Ann Gerghas.
Then there was Dr. Ron Fishman, who the defense said was at the dance recital in which Simpson's daughter, Sydney, performed, on the day of the murders. The defense said Fishman could testify that Simpson was in a good mood and not "glaring" at Nicole as the prosecution claims.
But yesterday Darden said: "We believe if Dr. Fishman were honest and called to testify and testified honestly, we believe that he would testify that as Nicole Brown left the recital on June 12, he overheard this defendant say: 'I'm going to get her. I'm going to teach her a lesson,' words along those lines."
Darden said that if the defense had a statement from Dr. Fishman, then the prosecution should have been given it before opening statements to the jurors.
Darden added that when Simpson was arrested on June 17, the prescription drug Xanax was found in his possession and "the medication was apparently prescribed to Dr. Fishman's mother."
"I want to make the record perfectly clear," Darden said. "Their witnesses include heroin addicts, thieves, felons, and one of their so-called material witnesses is the only person I have ever known to be a court-certified pathological liar!"
Darden said the defense had been dishonest and unethical, and had "sandbagged" the prosecution.
True, the prosecution had also been late in delivering more than 200 witness names to the defense last year. But the names were revealed well before opening statements. Yesterday, the prosecution was complaining about names they had learned about only after opening statements.
"This is outrageous, disgusting, appalling to me as an officer of the court," Darden said and then added with a sneer, "This is the Dream Team, America's finest defense attorneys, and they have committed misconduct, have deceived the court, and violated the basic and fundamental rules of discovery and impinged on people's right to a fair trial. Well, the rules apply not just to poor civil service lawyers but to the Dream Team and the Dream Defendant."
The defense saw it differently.
Calling the defense's failure to reveal the names a "glitch" and information "that fell between the cracks", defense attorney Cochran attacked his attackers.
"They can't stand the truth!" he said of the prosecutors. "They cannot shut me up, Your Honor. I am going to tell the truth about this case! They are constantly trying to shackle me. They have 900 lawyers [in the prosecutor's office] . . . and they come whimpering into court and claim they didn't know something.
"We don't refer to ourselves as the Dream Team; we're just a collection of lawyers trying to do the best we can for our client. We never intended to deceive this court."
Unlike Wednesday, the day Simpson showed off his left knee to the jurors but was otherwise undemonstrative, yesterday, with the jury out of the box, Simpson laughed and chuckled with defense attorney Robert Shapiro several times. At the end of the lengthy wrangling, the prosecution asked that the jury be instructed to disregard all references to the surprise witnesses in the opening statements of the defense and be told that what the defense had done was misconduct. The prosecution also wants an opportunity to readdress the jury and a 30-day delay in the trial to investigate the new witnesses.
"When voters in this state passed Proposition 115, it was a clear message: No more sandbagging," Darden said. "The people have a right to a fair trial just like Mr. Simpson does."
Marcia Clark, the lead prosecutor, told Judge Ito that she "simply did not believe" that what the defense had done was an accident.
"It was willful, Your Honor," she told Ito in heated tones. "Yes, it's couched in nice smiles and ingratiating remarks, but that should not deceive the court."
Defense attorney Carl Douglas said he would not "dignify the vile, insidious and long-winded comments" of the prosecutors. He did say, however, that the prosecution did not have "clean hands" considering it had done the same thing it was accusing the defense of doing.
Meanwhile, the defense has still not finished its opening statement to the jury, as the entire day was taken up with arguments between the lawyers.
Complicating matters was the sudden illness of a key member of the prosecution team, William Hodgman. Visibly upset in court over the surprise witness matter Wednesday, Hodgman was later rushed to a hospital with chest pains.
Hodgman was resting comfortably yesterday, but it was not known when he could resume his seat at the prosecution table. He was the chief prosecutor at the Charles Keating securities trial, over which Judge Ito presided. Judge Ito has made clear his respect for Hodgman, and the prosecution would not like to proceed in the Simpson case without him.
Judge Ito recessed the trial until Monday but indicated that he might hand down his ruling on the prosecution request for sanctions as early as today.
And in about the only comment made yesterday that did not meet with any argument, Judge Ito said wearily: "This is going to be a long trial."