'The People v. O.J. Simpson,' Episode 5: Our Fact-Checking Recap

Never mind the Juice — how well does this episode handle the rise of Johnnie Cochran?

Sterling K. Brown, left, and Cuba Gooding Jr. in 'The People v. O.J. Simpson: American Crime Story.' Credit: Ray Mickshaw/FX

We've spent a lot of time with the Juice in the first half of this season of American Crime Story — but for this episode, the writers largely ignore O.J. Simpson and concentrate on the rise of Johnnie Cochran. They also seem to delight in detailing the defense infighting that threatened to take down the “dream team." (Poor Robert Shapiro, grunting and scoffing as he accuses his mentor F. Lee Bailey of leaking embarrassing information to the press.)

But an early scene of this week's installment does an excellent job laying out both sides of the case as the prosecution and defense lawyers go into the trial — in particular, how the same evidence would be handled differently by each respective team. Both the series' Rosetta stone — Jeffery Toobin's The Run of His Life — and some supplementary material really bring the viewer back to 1995; now's the time to see just how accurate the episode is, per our signature one-to-five-gloves scale.

1. The prosecution tried to have O.J.'s domestic violence record excluded from the trial
"Your honor," John Travolta's Shapiro tells the honorable Judge Lance Ito. "This is a murder case. This is not a domestic violence case, nor is it an inquiry into the personality of Mr. Simpson." Watching this scene now, when we know that at least a third of all female homicide victims are killed by a male partner, this motion might seem ludicrous. And that's just how the prosecution approached it: "Counsel's reasoning is flawed and their logic is specious," prosecutor William Hodgman informs the court, proposing an absurd hypothetical that they don't even tell the jury that O.J. and Nicole had ever been married. While the lawyers who actually presented the points were different — Gerald Uelmen for the defense and Hank Goldberg for the prosecution — the arguments themselves were nearly identical.

A week after the hearing, Ito came back with a 10-page opinion that allowed the prosecution to use most of the incidents, though he did exclude a fearful call Nicole made to a women's shelter a week before her murder, as well as the descriptions of her abuse she'd written in her diary. "Ito correctly excluded Nicole's statement as inadmissible hearsay," Toobin wrote. "As are all 'statements by a homicide victim expressing fear of the defendant, even on the very day of the homicide.'" The jury wouldn't hear, in her own words, just how much Nicole thought that O.J. might actually kill her. (4/5 Gloves)
2. Darden tried to bar the defense from questioning Mark Fuhrman about his previous use of the N-word, but Cochran quickly shut him down
Though in reality it happened two days after the domestic-violence arguments, ACS does a brilliant job of recreating one of the most uncomfortable moments during the pre-trial hearings. "The N-word is a dirty, filthy word," prosecutor Christopher Darden says on the show, a near-verbatim version of what he said in the courtroom that day. "It is so prejudicial and so extremely inflammatory that to use that word in any situation will evoke some type of emotional response from any African-American. We're talking about a world that blinds people. If you mention that word to this jury, it will blind them to the truth. They won't be able to discern what's true and what's not. It will impair their judgment, it will affect their ability to be fair."

As Toobin explains, Darden had made his career looking into actual instances of LAPD racism, making O.J.'s defense seem that much more absurd to him. "Darden seethed to see O.J. Simpson — who had done precisely nothing for his fellow African-Americans over the course of his lifetime — capitalizing on his race. In his frustration, Darden started to ramble." In the courtroom that day he went on for nearly 20 minutes; luckily, the show keeps it down to less than two. But Cochran did stand up to rebut his opponent — declaring that the prosecutor was condescending to all African Americans by deciding for them which words they could or could not hear. And he did preface it by mockingly calling Darden "my good friend."

But the attorney did more than just sit and stare incredulously at Cochran. At one point, according to Toobin, "He stood up and walked in a tiny circle behind his chair, as if he were weighing whether to walk out." But he sat back down, "childish[ly]" taking the verbal beating from opposing counsel. Toobin writes that Cochran was late to a funeral, and so he hugged his client and made motions to leave. But ACS kept a distressing detail from Toobin's account, how Cochran whispered one last insult to Darden on his way from the court: "Nigger, please." (5/5 Gloves)

3. Judge Ito called Vanity Fair's Dominick Dunne into his office to give him unprecedented access during the trial
Early in the episode, Judge Ito pulls the Vanity Fair trial correspondent into his office to let him know he'll have a primo seat at the trial. While this exchange happened a few days after it appears in the show — Dunne later told the press that it wasn't until several days into the case that the judge told him the front-row seating was his idea — it seems largely true, down to the star-obsessed Ito showing him a hand-written note from Arsenio Hall (which definitely existed and he absolutely showed off). Dunne's daughter Dominique, a rising actress who had appeared in Poltergeist, had been killed by her boyfriend in 1982, and Ito felt that the families of Goldman and Brown would appreciate his presence. And while the journalist did become a singular voice observing the trial, the best part of his inclusion in this episode isn't the explanatory scene where he breaks down trial divisions for even the most distracted viewer. Rather, it's the casting of Robert Morse, who, if we're lucky, will dance his way off this show, too. (4/5 Gloves)

4. The defense redecorated O.J.'s house to make him appear more "black"
We'll let Dominck Dunne set this one up: "The jury will visit the crime scene and O.J's mansion, and O.J. will be there, too. Imagine, the first time he's been back, since the Bronco chase." From Dunne's lavish dinner party, the scene cuts to Johnnie Cochran scrutinizing his client's Brentwood mansion, shaking his head at a Norman Rockwell print of two boys playing football. Over an excellent montage, he and his staff swap out the photos of half-dressed white girls for portraits of the Juice and his mom, throwing in some African art ("on loan, from the Cochran collection") for good measure.

For this, it seems, the writers turned away from Toobin's largely legal tome to the 1996 Lawrence Schiller blow-by-blow account, American Tragedy: The Uncensored History of the O.J. Simpson Defense. According to that book, the defense wanted to show the murder scene to prove that it was such a small space, O.J. would have been covered in blood — and to show his home in order to convince them that he had too much to lose to commit the murder. The only problem, as Cochran saw it, was that his house's decorations wouldn't resonate with the largely black jury. So they did change out the pictures of white women — including a nude of his girlfriend, Paula Barbieri — with portraits of his black family. Funny enough, the art that came in from the Cochran collection, which Johnnie wanted because it "depict[ed] African American history," was a Rockwell print from his office ... one which depicted a young black girl, surrounded by federal agents, walking into school. (3/5 Gloves)

5. Bill Hodgman was so upset that Cochran used undisclosed witness names during his opening argument that he fainted in the courtroom and was taken off the case
"One might wonder why the prosecution didn't bring to your attention, Mary Anne Gerchas," Cochran begins his opening arguments on ACS. "Or Rosa Lopez. Or Joe Stellini." The prosecutors look baffled and begin rifling through their papers. Before Cochran can get much farther, Hodgman jumps up to object. "I hesitate to interrupt another lawyer's opening statement, but it appears that for some reason that these witnesses have not been turned over to the people!" The defense falls on its sword, with Cochran's associate Carl Douglas apologizing for the failure to disclose all their witnesses. Hodgman takes on a Marcia-Clark-Episode-Two-level shrillness, loses his breath, and loses consciousness. He suffers an apparent heart attack on the floor of the courtroom, as the world is watching.

Not quite.

Cochran started his opening with the Martin Luther King Jr. quote, but what he presented to the jury (and the cameras) that morning was longer, and darker, than what we see on the show. Before he got to the full roster of surprise witnesses, the defense star — dressed in a periwinkle suit with a striped shirt and tie, not a conservative number as he is on the show — took time to list every one of Nicole's post-divorce sexual partners. (The idea was to disparage her before, in particular, the black female jurors.) Hodgman objected 13 times — and Douglas defended his team with their usual "mea culpa" approach — but he did not have a heart attack in Ito's courtroom.

It wasn't until later that day, as he and Clark briefed District Attorney Gil Garcetti on the day's happenings, that he had the chest pains that would send him to the hospital, and take him off the case. This, Toobin explains, was no favor to the DA. "His absence deprived the prosecution of a day-to-day center of gravity, a voice of calm and maturity.... Clark and Darden … tried cases in an atmosphere of perpetual turmoil, much of it self-generated." Another blow to the DA's office, and another factor in the perfect storm that would eventually lose them the case. But a heart attack on television might have at least made them appear a little more human to the viewers at home. (2/5 Gloves)

Previously: Episode 4