Outrage (62 page)

Final summation is “the most important part of the trial for the lawyer”:
In recent years, the opening
statement
, which is at the beginning of the case, has taken on, in my opinion, inordinate importance in the eyes of trial lawyers, some claiming it’s the most important part of the trial. To me, opening statement is one-tenth, if that, as important as final summation, at least in a criminal trial. There is no comparison. They should hardly be discussed in the same breath. Among other things, in opening statement you are not even allowed to argue, i.e., draw inferences from the evidence and urge the jury to accept them. The rationale for the belief that opening statement is so very important is that first impressions are frequently lasting impressions. Indeed, at least one survey has shown that 70 percent of jurors who formed an opinion in favor of one side at the end of the opening statements voted for that side at the end of the trial. However, no one apparently bothered to consider that maybe the reason was that that side simply had the better case, as was apparent even during opening statements.

Implicit in the notion that an opening statement is enormously important is the false assumption that juries, without having yet heard one single word of testimony, are going to be permanently (or at least substantially) influenced in their view of the case. On grounds of pure logic, this appears very unlikely. Even when jurors
do
form an opinion during the opening statement, it certainly is not etched in marble, and can be overcome by actual evidence and testimony from the witness stand. Lawyers making opening statements are like two opposing coaches talking on television before a Super Bowl game about what their teams hope to accomplish on the field of play. Jurors, I’ve long thought, are in the position of TV viewers who tire of prelims and want the game to begin.

“…most lawyers give terrible summations”:
An important element in the preparation of final summation is to secure and read the transcripts of at least one or two summations given by your opponent in the past—to see the logic he is accustomed to employing, look for holes in his methodology, and learn his favorite examples and analogies.

It “isn’t Darden’s nature to be forceful”:
However lacking in fire, Darden spoke with a certain amount of fervor and emotion, more so than Clark. He conveyed sincerity, clearly spoke from the heart, and, though misguided, was a reasonably effective communicator of his views. Darden’s opening argument, as seriously flawed as it was, was far superior to his closing address. For whatever it’s worth, I feel Darden has talent, and the potential to be appreciably better than the average trial lawyer.

Clark performed differently before Judge Ito than before the jury, where she was more timid:
Her statement to the jury during voir dire—“You may not like me for bringing this case. I’m not winning any popularity contests for doing so”—was not only one of the most ill-advised statements that any prosecutor has ever made to a jury, but it was of course the antithesis of a forceful statement. Ms. Clark didn’t have to apologize for prosecuting O. J. Simpson. In fact, for what he did, he should have thanked God every day that the DA didn’t seek the death penalty against him, and that he wasn’t convicted and sent to death row. When Ms. Clark told the jurors she wasn’t winning any popularity contests for prosecuting Simpson, in effect she was telling them that the majority of people outside that courtroom didn’t even want Simpson to be prosecuted. And, by extension, if they brought back a verdict of guilty they would be going against the majority of people. What other reasonable interpretation of her words is there? Psychologically, I can’t think of anything worse a prosecutor could suggest to a jury. What a prosecutor wants to convey to the jurors from the very beginning of the case to the end is that based on the evidence they have
no choice but to convict
, that the evidence is so overwhelming that the People of the State of California (or New York or Texas, as the case may be), the people outside that courtroom, not only want but
expect
a verdict of guilty. That the victims, from their graves, are crying out for justice, and based on the evidence it is the jury’s sacred duty to return a verdict of guilty. Telling the jury “You may not like me for bringing this case. I’m not winning any popularity contests for doing so,” is definitely not the way to go.

“…Clark’s and Darden’s rebuttal”:
The first argument the prosecutors give at the
end
of the case is called their opening argument, not “closing” argument as most of the media would say. (The opening
argument
should not be confused with the opening
statement
, which is at the
beginning
of the case.) Then the defense gives its one and only argument. This is followed by the prosecution’s second argument (the prosecution is given two arguments to the defense’s one because the prosecution has the burden of proof), called rebuttal, or closing or final argument, or final summation. Generically, all the arguments for the prosecution and defense can be called final argument or summation.

The Simpson prosecutors let defense attorneys get by with continually interrupting their summation:
After forty-three objections, Clark was called to the bench by the court (i.e.,
not
because Clark asked to approach the bench to complain) to discuss the merits of a defense objection. Ito said, “I’m not optimistic we’re going to finish today,” and only then did Clark say: “Well, if you don’t tell them—you know, Judge, this is such an obvious ploy. Every other thing they’re objecting to.” Ito’s only response was to brush Clark off with “All right, you say [page] 25,962?” returning to the discussion in progress before Clark’s statement—i.e., there was no response one way or the other from Ito, and he said nothing to Cochran or Scheck. At no time during her entire rebuttal argument did Clark specifically ask Ito to admonish or sanction the defense attorneys for objecting (nor did Darden say one word at all), and as indicated, at no time during the two prosecutors’ summations did Ito, on his own, tell either one of the defense attorneys to stop making frivolous objections.

The four detectives wanted to “give Fuhrman a chance to start what he’s doing”:
Of all the
LAPD
detectives, Cochran had the kindest words for Lange, at times suggesting in his argument that he wasn’t one of the bad cops in this case. But this statement by him clearly accuses Lange of being part of the conspiracy to frame Simpson. And when Cochran alleged that Simpson’s blood had been planted on the back gate at Bundy after June 13, 1994, even though Lange had testified he saw blood there on the night of the murders, he was necessarily accusing Lange of perjury and hence being a part of the conspiracy. Likewise, when he told the jury that black
LAPD
photographer Willie Ford was “
the one
person [among all the
LAPD
officers and personnel involved in the case] who wasn’t part of the cover-up,” he was again accusing Lange of being a part of the conspiracy to frame Simpson. Lange, in his demeanor, reminds me of a legendary
LAPD
detective I worked with years ago, “Jigsaw” John St. John, who was liked even by those he relentlessly pursued and ultimately arrested.

Cochran and Scheck, in their summations, suggest a conspiracy by the police to frame Simpson:
Isn’t that nice? Police officers, particularly during the early years of their careers, risk their lives almost every day, not even knowing when they give a traffic ticket to a speeding motorist if he’s going to be some zany or an escaping criminal who might blow their brains out. Because of this daily risk of life, police officers are the most underpaid people in our society, hardly earning a living wage. They’re sued, they’re called pigs, and then, after detectives like Lange and Vannatter have put in twenty-five long and hard, gritty years serving the public and are about to retire and enjoy a few years with their families, criminal defense lawyers like Cochran and Scheck come along and falsely accuse them in front of millions of people of the foulest, most despicable and ignominious act imaginable: framing an innocent man for two murders. That’s really nice, isn’t it?

The defense attorneys, in their questions of the prosecution witnesses, suggested a police frame-up:
Many of the questions went beyond mere suggestion. For instance, Barry Scheck, to convey to the jury his belief that Dennis Fung had planted blood from Simpson’s vial of blood in the Bronco, asked Fung: “And at some point that morning, before you left to search the Bronco at the print shed, you poured off some blood from Mr. Simpson’s blood vial?” Fung: “No.”

Marcia Clark devotes but one paragraph to respond to central thrust of defense’s whole case:
The defense drenched the jury throughout the trial and in final arguments with the concept of a police conspiracy, and the DA did virtually nothing at all to disabuse the jury of the notion. The jury took that notion, virtually intact, back to the jury room with them, and concluded, by their verdict, either that Simpson had indeed been framed by the police or at least that this issue fell under the rubric of reasonable doubt. Many of the jurors have come right out and said that evidence was planted against Simpson, e.g.—” Somebody planted the glove,” Brenda Moran said; Gina Rosborough said she believed Fuhrman had “planted evidence” “the blood [on the back gate and in the Bronco] was planted,” juror Marsha Rubin-Jackson says in
Madam Foreman
, etc. Jurors Yolanda Crawford and Lionel Cryer said they weren’t sure, however, that all of the
LAPD
officers were in on the conspiracy to frame Simpson. Crawford said she felt the civilian criminalists at the
LAPD
were a part of the conspiracy.

“…been involved in such an enormous endeavor…”:
For instance, since the dark cotton sweatsuit Kato Kaelin saw Simpson wearing less than an hour before the murders never surfaced, for dark cotton fibers to end up on Ron Goldman’s shirt, the detectives would have had to go out and buy a dark cotton sweatsuit, remove fibers from it, check Goldman’s shirt out of the Property Division of the
LAPD
, and then embed these fibers into Goldman’s shirt. They’d have to remove fibers from the Bronco carpet, check the glove found on Simpson’s estate out of the LAPD’s Property Division, and embed them into the glove. A specified number of hairs (one hundred) were removed, by court order, from Simpson’s head for comparison purposes, so without the defense catching it, the detectives would have had to purloin several hairs from the tissue containing Simpson’s hair, and embed nine of these hairs into the black knit cap found near the slain bodies of the victims and one into Ron Goldman’s shirt: And so on as to twenty or twenty-five other things to illustrate to the jury how silly and absurd the defense’s allegation of conspiracy is; that a person would have to have a brain smaller than the point of a fine needle to believe a story like that.

In California, testifying falsely in a capital case in some circumstances can result in the death penalty:
A capital case, strictly speaking, is one in which the DA is seeking the death penalty. Although on September 9, 1994, nearly three months after the murders, the DA decided against seeking the death penalty against Simpson, certainly, on the night of the murders, with not one but two persons having been brutally murdered, any detective would have to assume there was a substantial likelihood the DA would seek the death penalty. Since I always, as indicated, work backward from my final summation, and since this is a very powerful argument which I would immediately know I would want to make, I would have had each of the four detectives, during my direct examination of them, testify to their knowledge and awareness of Section 128 of the California Penal Code. Section 128 provides that any person whose perjury helps procure the conviction and execution of an innocent person
shall
be sentenced to death or life imprisonment without possibility of parole. Prior to 1977, the death penalty was mandatory.

Some have criticized the District Attorney for not seeking the death penalty against Simpson, pointing out that if they had, they would have voir dired prospective jurors on their feelings regarding the death penalty. And since jurors who explicitly state that under no circumstances will they vote to impose the death penalty may be excused for cause (
Witherspoon v. Illinois
, 391 U.S. 510 [1968]), the jury that ended up hearing the case would likely have been more conservative, and hence more predisposed towards the prosecution and inclined to convict. Although a good case could be made that Simpson deserves to be on death row, and although he was treated with kid gloves from the very beginning by everyone in this case, including the police and prosecutors, the evidence is that he did not receive any special consideration on the DA’s decision not to seek the death penalty. I say that because even though Simpson was no longer married to Nicole, everyone, including the prosecution, still viewed this case as a “domestic violence” case, and traditionally in Los Angeles, the DA rarely ever seeks the death penalty in a domestic violence murder, even when, as here, a second party (Ron Goldman) is also murdered, viewing the relationship that gave rise to the murder as a “mitigating circumstance.” At a meeting Garcetti had with leaders of the African-American community (including Johnnie Cochran, who was not yet representing Simpson) on July 19, 1994, at the Los Angeles headquarters of the Urban League, the black leaders urged Garcetti not to seek the death penalty against Simpson.

“…but you never do anything to him”:
In this regard, couldn’t the prosecution at least have said to the jury: “Why would the same police department which sheltered Mr. Simpson all these years against domestic abuse charges suddenly want to frame him for murder?”

“I mean, he’d need a road map to get back to the hood”:
If I had been successful in getting in evidence of Simpson’s having turned his back on the black community years ago, and not helping the community even when requested to do so, I obviously would have made an argument on this, too.