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Chapter One: In the Air -- What the Jurors Probably Knew
From the moment O.J. Simpson became a suspect in this double murder case, it was "in the air," perhaps as in no other case within memory, that he might get off despite the conclusive evidence of his guilt. In fact, even before the murders, it was in the air, Nicole presciently telling her close female friends that "O.J. is going to kill me someday and he's going to get by with it."
It was in the air from the day (June 17, 1994) when mental midgets stood atop the freeway overpasses holding "Go O.J., Go" signs during the slow-speed chase prior to his arrest. Everywhere one looked, it was in the air. People saying confidently, "This jury will never convict Simpson -- they wouldn't convict him even if they were shown a film of him committing the murders." People carrying signs outside the courtroom during the trial declaring "Free O.J.," "Save the Juice," and even "Whether you did it or not, we still love you, O.J." The incessant jokes and tasteless comedy routines on TV and radio about the case, which could only serve to subliminally trivialize the murders of the victims. U.S. Senate Chaplin Richard Halverson beginning the Senate's day on June 23, 1994, with a "prayer for O.J. Simpson." The first juror called for questioning in the case happening to be juror number 32, the number Simpson wore throughout most of his football career, prompting Judge Ito to say, "I don't know if this is an omen," and Simpson to smile and nod his head in agreement. Marcia Clark, during jury selection, making one of the most ill-advised statements ever made to a jury by a prosecutor: "You may not like me for bringing this case. I'm not winning any popularity contests for doing so." Chris Darden's almost equally incredible and ill-advised statement to the jury in his summation at the end of the case: "Nobody wants to do anything to this man. We don't. There is nothing personal about this, but the law is the law." (Can you imagine being almost apologetic to a jury when you believe the person you're prosecuting committed a brutal double murder?)
To this day, virtually everyone refers to Simpson only as "O.J.," a friendly nickname that implies the speaker still likes Simpson or at most views him as one would an errant friend or relative, certainly not a brutal murderer. "How's O.J. doing?" Larry King would solicitously ask any guest of his who was a Simpson intimate and who had visited Simpson recently at the jail. These and many other small signs of respect, or awe, or affection, indicated that Simpson, even if guilty, might be given some break tantamount to a papal dispensation. In the absence of a powerful prosecution, it became almost a self-fulfilling prophecy that he would be found not guilty.
This feeling, this sense, which permeated every segment of our society, was obviously known to the jurors before they were selected, even manifesting itself during the trial. Because when something is in the air, it reaches everyone, by osmosis, by accident, or, if by no other means, by the weekly conjugal visits to the sequestered jurors. Surely, no one can doubt that the jurors were speaking to those loved ones who visited them in the privacy of their quarters. Everyone knew this. You don't have to take my word for it. What conceivable reason would Marcia Clark have had to beg Judge Ito not to let Simpson make a statement near the end of the case, when Simpson wanted to do so outside the presence of the jury, if she didn't virtually know that what Simpson said would get back to the jury?
This "in the air" phenomenon couldn't help but contribute, in some way, to the eventual not-guilty verdict. It made it so much easier, either consciously or subconsciously, for the jury to give Simpson every benefit he was legally entitled to, and then some. In such an atmosphere a not guilty verdict would no longer seem to the jury like the very worst thing that any jury could do-let a brutal murderer walk out the door a free man. They were just doing what everyone had already predicted they were going to do, and apparently what most people wanted them to do. Wasn't that really what prosecutor Darden himself was suggesting when he said, "Nobody wants to do anything to this man"?
I've been asked to explain more than once why, right from the beginning, I was saying publicly that there was no question Simpson was guilty. I take no pride in having been the first public personality to come out publicly against Simpson. It just happened that way. I was asked by the media how I felt about the case way back in the early summer of 1994, and I decided to be candid. Before I tell you why I did, I should point out that some people objected to my having done so. One reason was the presumption of innocence in our society. Also, they felt that as a member of the bar, I should, therefore, not have spoken of Simpson's guilt before the verdict.
Contrary to common belief, the presumption of innocence applies only inside a courtroom. It has no applicability elsewhere, although the media do not seem to be aware of this. Even the editorial sections of major American newspapers frequently express the view, in reference to a pending case, that "we"--meaning the editors and their readers--have to presume that so-and-so is innocent. To illustrate that the presumption does not apply outside the courtroom, let's say an employer has evidence that an employee has committed theft. If the employer had to presume the person were innocent, he obviously couldn't fire the employee or do anything at all. But of course he not only can fire or demote the employee, he can report him to the authorities.
Actually, even in court the are problems with the presumption of innocence. The presumption of innocence, we all know, is a hallowed doctrine that separates us from repressive regimes. It's the foundation, in fact, for the rule that is the bedrock of our system of justice--that a defendant can be convicted of a crime only if his guilt has been proved beyond a reasonable doubt. However, legal presumptions are based on the rationale of probability. Under certain situations, experience has shown that when fact "A" is present, the presence of "B" should be presumed to exist unless and until an adverse party disproves it. For example, a letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail delivery. But when we apply this underlying basis of probability for a legal presumption to the presumption of innocence, the presumption, it would seem, should fall. Conviction rates show that it is ridiculous to presume that when the average defendant is arrested, charged with a crime, and brought to trial, he is usually innocent. But obviously, the converse presumption that a defendant is presumed to be guilty would be far worse and, indeed, intolerable. Our system, for readily apparent reasons, is far superior to those in nations, mostly totalitarian, which presume an arrested person is guilty and place the burden on the accused to prove his innocence.
The solution would seem to be simply to eliminate the presumption-of-innocence instruction to the jury, keeping those two necessary corollaries of the presumption which do have enormous merit: first, the fact that the defendant has been arrested for and charged with a crime is no evidence of his guilt and should not be used against him; and second and more important, under our system of justice the prosecution has the burden of proving guilt. The defendant has no burden to prove his innocence. It is one thing to say that the defendant does not have to prove his innocence, and that in the absence of affirmative proof of guilt he is entitled to a not-guilty verdict even if he presented no evidence of his innocence at all. To go a step further, however, and say that he is legally presumed to be innocent when he has just been brought to court in handcuffs or with a deputy sheriff at his side seems to be hollow rhetoric. One day a defendant is going to stand up in court and tell the judge, "Your Honor, if I am legally presumed to be-innocent, why have I been arrested for this crime, why has a criminal complaint been filed against me, and why am I now here in court being tried?"
As any seasoned criminal trial lawyer will attest, most juries see through the transparent fiction of the presumption of innocence. Whether they verbalize it or not, as reasonable human beings they know that if the defendant seated at the counsel table in front of them were truly presumed to be innocent in the eyes of the law, they would not have been empaneled to hear and adjudicate the charges brought against the defendant by the law. It is even possible that the articulation of the presumption of innocence by the judge to the jury may, on balance, work to the detriment of the accused. If the jury knows the presumption of innocence is a legal fiction, yet the judge intones the presumption to them in a very sober manner, and with the straightest of countenances, could it be that he thereby loses a speck of credibility in their eyes? And when he subsequently instructs them on those matters which are legally sound and designed by the law to protect the rights of the defendant (e.g., the doctrine of reasonable doubt), they may not take his words as seriously as they should?
With respect to the supposed inappropriateness of my speaking out because I am a member of the bar, the Rules of Professional Conduct of the American Bar Association, specifically Rule 3.6, provide that the prosecutor and defense attorney on a case should not make any statement outside of court as to whether the defendant is guilty or not guilty. Yet, the defense attorneys in the Simpson case consistently voiced their opinion to the media that Simpson was innocent. I don't have any problem with that. I think Rule 3.6 is unrealistic and unduly restrictive. But the point I want to make is that if lawyers on the Simpson case who were not supposed to state their opinion did so, certainly someone like me who was not involved was entitled to do so. The First Amendment to the United States Constitution allows this.
However, even given the fact that I was not prohibited by Rule 3.6, or by the presumption of innocence, I would normally have felt it unseemly and in poor taste for me, a member of the bar, or for any public official to speak out on an accused's guilt before the verdict, and this was the very first time I ever did so. I had objected when President Nixon (also a lawyer, by the way), during the Manson trial, said to reporters in Denver he believed Manson to be guilty. That statement made headlines throughout the country and almost caused a mistrial. I spoke out in the Simpson case for two reasons. The main reason should be self-evident to the reader by now. The "in the air" phenomenon attending the Simpson case was, at least to my recollection, unprecedented for any criminal case. Because this was a highly unusual situation, I departed from my customary policy. There was no doubt in my mind that the "in the err" phenomenon had the potential of having a prejudicial impact on the prosecution's case, since the jury couldn't help but be aware of it and probably be adversely influenced in the process, and I was trying to counter what was happening. I obviously was unsuccessful.
There was another related reason I spoke out early on, months before the trial. I was disgusted by the tremendous groundswell of support for Simpson, even though two human beings had been brutally murdered, and all the evidence pointed to Simpson as the perpetrator. He had received 350,000 letters of support at the time, and although each revelation of his guilt the media learned of was clinically and dispassionately reported in the news, nearly all of the commentators on television nonetheless treated Simpson as if he were a very special human being, and not one of them dared to say one negative word about him. He was being given special treatment at the Los Angeles County Jail; thousands of people were calling in on radio talk shows asserting his innocence; some, unbelievably, stating or strongly implying that even if he was guilty, he's O.J., let him go he has suffered enough. As I've indicated, even today, everyone still calls him O.J. You know, O.J. this and O.J. that. Well, he's no longer O.J. to me. He's Simpson. Someone who carves up two human beings like sides of beef forfeits his right to any endearing nicknames, at least in my view. Again, why there was this enormous support for some often very bad, and undoubtedly have contributed to many, many deaths throughout the years) are mentally retarded? No, they're just incompetent. Normal people.
Have you ever moved into a brand-new home? Aren't there one hundred defective things, many of which require your calling the workers out three or four times to fix once and for all? Do you really believe all these carpenters, plumbers, electricians, etc. are morons? Of course not. They are perfectly normal, incompetent people. It is just too much for them to do their job well, even though the work they do is relatively simple work they do every-working day, and it's almost mechanical, necessitating very little thinking.
How about all the consumer products that are difficult to operate because whoever manufactured them was too incompetent to make it easy? Or the instructions that are hopelessly confusing and sometimes flat-out wrong? How about the large office buildings either without street numbers on them or with numbers located on the building in such a way they are difficult to see from the street? Or floors and room numbers at some hotels which require an Indian guide to find? Or the recorded voice in the shuttles at some airports that are virtually impossible to hear or understand? Do you really believe the airport administrator has a much lower IQ than the average lawyer? How about the incompetents at the telephone company who decided a few years back to improve the perfectly adequate and easy-to-use touch keys on public pay telephones by adding a metal cusp on each side of them, making it actually difficult to punch the numbers? In fact, it is virtually impossible to punch the keys fast without hitting at least one or two cusps instead of the keys. Do you really think that all the people involved in this multimillion-dollar project at the telephone company are certifiable idiots, with IQs lower than those of trial lawyers? If you think so, you are wrong. There are of course countless other examples of incompetence. These are but a few.
If incompetence is so endemic in our society, even among people doing simple, repetitive things with a lot of time in which to do them, doesn't common sense tell you that the incompetence is going to be even more common and pronounced with trial lawyers who deal with different witnesses in every case, with different facts and evidence, who are constantly forced to think on their feet under pressure of time, and who have an opponent who is trying to thwart and negate their every move? Yes, common sense tells you this. Rut this is not the way society sees it.
The reason is the extremely strong myth in our society--the genesis, I imagine, being from novels and films--that criminal defense attorneys, particularly those on big cases, are brilliant, great, high-powered, silver tongued; that they're magicians, able to pull rabbits out of hats, etc. Although there is incredible incompetence everywhere in our society, for some curious reason, because of this myth, defense lawyers are perceived to be an exception.
The reality is that the vast, overwhelming majority of trial lawyers in criminal jury trials are either incompetent or operating at a very low level of competence. And if most prominent trial lawyers met their reputations out on the street, they wouldn't recognize each other.
In addition to novels and the screen, the media have been very complicity in perpetuating the myth. For example, cross-examination as bland as pablum is routinely reported to be "rigorous" or "withering." Why? Because cross examination is supposed to be rigorous and withering.
Similarly, there are some easy ways to destroy the credibility of an adverse witness that even a relatively unskilled cross-examiner can manage--introducing prior inconsistent or contradictory statements, showing the witness's bias or vested interest, his poor character for truth, etc. It's always amusing to me when I see laypeople and the media being so impressed when a lawyer does these simple, obvious things in court, things an average person would instinctively know to do. Here is how ingrained the myth is: How many times have you heard a layperson, talking about a weakness in a case, say, "A clever lawyer would . . ." and then-proceed to tell you what the layperson thought to do himself? Why? Because lawyers are supposed to be clever.
For example, in the June 27, 1994, edition of Newsweek, the writer, referring to the apparently delirious behavior of Simpson during the slow-speed chase, wrote: "A clever defense lawyer might try to turn his bizarre ride around the L.A. freeways into evidence that he was mentally unhinged." The writer, of course, was not tactless enough to be complimenting himself here for his own idea. He was unconsciously playing into the myth, and once he furnished the lawyer with his, the writer's idea, he praised the lawyer's cleverness. Again, why? Because the criminal defense attorney, not the writer, is supposed to be clever, even if, as here, the idea required no intelligence at all.
Let's look at the Simpson case and Simpson's lawyers, and I will then tie it all in to the damage the above myth most likely caused the prosecution's case. It's not going to be a pretty or flattering picture I paint of the trial abilities of the main lawyers for the defense. (Specific examples of their incompetence are found in the Epilogue.) If any of you are thinking, "Well, they won, didn't they?" my reply is that surely no intelligent person can assess someone's performance simply by looking at the final result. The result can frequently be traceable to factors and dynamics that have nothing at all to do with the abilities of the victor. I intend to demonstrate throughout this book that the defense won this case because of the terrible jury that heard it and the incredible incompetence of the prosecutors, not because of anything special at all done by the main lawyers for the defense.
Right from the very beginning, the media immediately started referring to the lawyers for the defense (at that time, the lead defense attorney was Robert Shapiro) as "the best that money could buy." Why? Because they immediately assumed that if your life or liberty is on the line and you have a lot of money, you automatically get the best. Because that is the way it should be (which presupposes, erroneously, that the defendant would have any idea at all what trial lawyer to employ, or if he sought the advice of lawyer friends of his, that they would have any idea who the best criminal trial lawyers were, or had ever seen any of them in action), these simpletons unthinkingly assume that's the way it actually is, totally ignoring the backgrounds and records of the lawyers involved.
The reality is that most celebrity defendants are extremely unknowledgeable, naive, and vulnerable, and if they get into trouble they usually call their lawyer friends who handle criminal cases, and if they don't know any, they call their business lawyers, who then refer them to lawyer friends of theirs. It's very incestuous, and that's apparently what happened with Simpson.
The first lawyer he called was a close friend of his, a celebrity lawyer named Howard Weitzman, who I don't believe has ever handled a murder case in his life. What had Weitzman done recently in the legal arena? The actress Kim Basinger had called him to represent her when she was sued for her backing out of a film, Boxing Helena, in which she had originally agreed to star. The strong consensus in the entertainment industry was that this was a highly winnable case for Ms. Basinger, since she backed out when she learned there were nude scenes, and the central character was too unsympathetic. Perhaps even more important, there had been only an oral agreement between her and the plaintiff producers, not a written contract, and in Hollywood, backing out of oral agreements is so common it's rarely the subject of a suit. Samuel Goldwyn, the master of malaprop, once said, "A verbal contract isn't worth the paper it's written on." And the further consensus was that if she did happen to lose, the damages would be very negligible. Weitzman not only lost, but the jury returned an award against his client that was so great, $8.1 million, that Ms. Basinger was forced into bankruptcy.
Weitzman's only big successful criminal case was the drug-trafficking case of John DeLorean. In the DeLorean case, DeLorean is seen engaging in a cocaine transaction on film, yet he was found not guilty. That indeed would be pulling a rabbit out of the hat if Weitzman and his co-counsel Donald Re had convinced the jury that DeLorean did not, in fact, engage in the transaction. But that wasn't the issue. The issue was whether DeLorean had been entrapped, and since there was considerable evidence he had been, this was a relatively easy ease for the defense. You don't even reach the issue of entrapment in a criminal case unless the jury concludes that the defendant did commit the crime.
How did Weitzman do during the brief period he represented Simpson? I was on Larry King Live with Johnnie Cochran before Simpson even was arrested. It was long before Cochran became a member of the defense team, and Cochran said during the show that if he were Simpson's lawyer he wouldn't let him talk with the police. I interjected that his first lawyer (Weitzman) already had, and that it was a monumental blunder, an enormous gift to the prosecution. Even if Simpson was innocent, in the emotionally traumatic state he was in on the afternoon after the murders he could have said things deleterious to his interests. But if he was guilty, it would have been virtually impossible for him to be grilled by detectives for over half an hour, trying to walk between raindrops, without telling one provable lie after another, without making one inconsistent or conflicting statement after another, all of which could be used by the DA to show a consciousness of guilt.
A few days after I said this on national TV, and others started to criticize him, Weitzman said he had tried to stop Simpson from talking with the police. But it would seem that the only reason Simpson would have had for consenting to be questioned by the police is that if he refused he'd look guilty. However, if his lawyer was advising him not to talk and, if necessary, insisting that he not do so, he had a way out. "Look, guys, I had nothing to do with these murders, and I'd love to talk with you, but my lawyer won't let me." That would have been the end of it. Period. Whether or not Weitzman advised Simpson not to be interviewed, we do not know. What we do know is that Simpson made sufficiently incriminating statements in the interview alone to convict him of murder, but because of the remarkable incompetence of the DA's office, the jury never heard the statement. I will have much more to say about this later.
And astonishingly, while Weitzman's client, Simpson, was being interrogated by the LAPD about a double murder for which he was the prime suspect, Weitzman chose not to be at his client's side. Even a first-year law student, even laypeople reading this book, would know the advisability of Simpson's lawyer being present during the interrogation. But you have to realize that Weitzman was considered to be one of the premier criminal defense attorneys in town, and brilliant, high-powered lawyers do things like this, right?
Detective Philip Vannatter testified at the trial that Weitzman had elected to go out to lunch rather than sit in on the interview, his only request to the detectives being that they record the interview. Weitzman has since come up with an allegation I have never heard before in Los Angeles law enforcement, one that is absurd on its face. In defense of his conduct, he told the media that "when Mr. Simpson chose to be interviewed by the police, contrary to my advice, he and I were told that the;e would be no interview if he wanted an attorney present." No one, but no one, could possibly believe an allegation like that. As Will Rogers once said, "It's the most unheard of thing I ever heard of." At no time anywhere near the interview did Weitzman complain publicly (as he would be expected to do) or privately to the LAPD or DA's office that he wasn't allowed to be present during the interrogation of his client. What we do know is that Weitzman walked outside Parker Center during the interview, and when waiting reporters approached him, he said: "O.J. is upstairs trying to get his wits about him, and is answering whatever questions he can to help law enforcement investigate this case." Not even Simpson, Weitzman's client at the time, supports Weitzman's story. The detectives gave Simpson his Miranda rights at the start of the interrogation, which included (I've heard the audio of the interview) telling him, "You have the right to speak to an attorney and to have an attorney present during the questioning." Simpson said he understood all his rights, and when they then asked him, "Do you give up your right to have an attorney present while we talk?" he responded, "Mmm-hmm. Yes."
My guess is that Simpson had convinced Weitzman of his innocence, and Weitzman had assumed no great harm could come to Simpson as a result of the interview. Weitzman either quit or was fired as Simpson's lawyer, and Robert Shapiro, another celebrity lawyer like Weitzman, became the lead lawyer.
Shapiro has always been a well-respected lawyer in the legal community, but he has never distinguished himself as a trial lawyer. He has been known mostly as a plea bargainer. In my Playboy interview, which as I've said came out before the trial started, I pointed out that the Simpson case was apparently Shapiro's first murder trial. (He did represent Christian Brando, Marlon's son, in a homicide case a few years earlier, but he pled Brando guilty and Brando was sentenced to ten years.) That revelation in the interview shocked a lot of people. There were 1,159 journalists credentialed to cover the upcoming trial, with very little to do except do research on the case and its participants, as well as interview witnesses who were expected to testify in the trial, yet to my knowledge not one of them had learned that Simpson's chief defense attorney, in a case they had already christened "the trial of the century," had never tried a murder case before.
It wasn't too long after the preliminary hearing in July 1994 that Johnnie Cochran joined the defense team and soon emerged as Simpson's lead trial lawyer. I had tried a few criminal jury cases with him years earlier when I was down at the DA's office and recalled him to be above average, which, of course, isn't saying anything. Cochran was one of those people who (prior to the Simpson case) it had always been hard not to like. He has a reedy smile and warm, jovial manner with everyone, rolls with the punches, and doesn't project arrogance or pomposity. Cochran's motto seems to be "Live and let live." He has always been very well liked and respected in the legal community and is particularly known and respected in the black community. Prior to the Simpson case, however, although he may have done so, I had never heard of Cochran ever winning a murder case before a jury. (He's claimed to reporters that he has won a great many, but not one reporter has ever thought to ask him to name just one of these cases.) In fact, in his thirty-two-year career as a lawyer in Los Angeles, the only murder case I'd ever heard of his trying before a jury that even got minimal coverage in the newspapers was when he defended a Black Panther name Elmer "Geronimo" Pratt in 1972 for having murdered a white schoolteacher on a Santa Monica tennis court. Cochran lost that case and Pratt was sentenced to life imprisonment.
Cochran had mostly made a name for himself as a civil lawyer, not a criminal lawyer, successfully representing several black plaintiffs in police brutality cases against the LAPD and L.A. Sheriff's Department. Cochran was also a friend of Simpson's and had been for years, going back to when Simpson was married to his first wife, Marguerite. Along with former law school dean Gerald Uelman, who hadn't tried a case for years and years, Shapiro and Cochran were the only lawyers representing Simpson in court during most of the court proceedings prior to the trial.
I had commented in the Playboy piece that for all of Simpson's money, it was nothing short of remarkable that he still didn't have one lawyer representing him in court who had demonstrated any real competence in murder cases. But if you were to listen to the media throughout this period, one would never have known this. Their reasoning was that if Shapiro and Cochran were on this big celebrity case, and presumably charging a lot of money, they must be the best. Who am I to quarrel with such powerful logic? When Mike Tyson was on trial, the media said the same thing--that he had the best defense team money could buy. You know, of course, where Mike spent the past several years. This is what one national magazine said later about Tyson: "He watched as his $5,000-a-day attorney fumbled his way through a closing argument."
F. Lee Bailey, an experienced and savvy trial lawyer who had distinguished himself in several murder cases, hadn't yet appeared in court, and no one knew what his role was going to be. Lee's last big case had been the Patti Hearst bank robbery case over twenty years earlier in San Francisco. Because the prosecution had conceded that Hearst had, in fact, been kidnapped by the SLA and she had no prior history of criminality, many in the legal community thought this was a very winnable case. But among other things, Lee gave a very short and weak final summation, and his client was convicted, propelling Lee's career into a seemingly irreversible decline since that time. He and Shapiro had been associated for years in the practice of law, each appearing on the other's letterhead, and Bailey was the godfather to one of Shapiro's sons. It was believed that Shapiro wanted to bring Bailey aboard, albeit in a limited way, to resuscitate Bailey's career and at the same time avail himself of Lee's considerable intelligence and experience.
Harvard Law professor Alan Dershowitz was also aboard. Alan has certainly distinguished himself in the legal profession, but it has been as a prominent appellate lawyer, not a trial lawyer. He is someone you go to after you've been convicted, though it took months for the media to finally figure this out. To almost all of them, in fact, Dershowitz was routinely reported at the time to be another name criminal defense attorney representing Simpson in his upcoming trial, one who had successfully defended, they would write, Claus van Bulow in his trial for attempted murder. But Dershowitz had not defended von Bulow, had not handled a single witness at von Bulow's trial. His involvement, admittedly critical, had been in securing a reversal, on appeal, of von Bulow's earlier conviction so there could be a second trial. To the media this was too much of a subtlety for their minds to digest without very substantial reflection.
The two DNA lawyers from New York, Barry Scheck and Peter Neufeld, had not yet appeared in court and were rarely, if ever, referred to by the media. But it was unnecessary. The media already had Shapiro and Cochran in court, and Lee Bailey in the wings. It had become holy writ--and to my knowledge, virtually all members of the media accepted the apparently unassailable verity--that Shapiro, Cochran, and Bailey were the very best lawyers in the county that money could buy. They were "the Dream Team," as almost all of the media started to call them, and no one was going to change that. It had become official.
The question I had at the time--and the trial only confirmed my need to ask it--was, how do you take a lawyer who has never tried a murder case before (Shapiro), another who isn't even primarily a criminal lawyer but a civil lawyer who may have never won a murder case before a jury in his career (Cochran), and another who lost the last big case he tried over twenty years ago, and convert them into the Dream Team, the best that money can buy? Under what bizarre, convoluted logic or theory do you do this? I'll tell you folks the theory. It's called the willy-nilly theory. Only the media people could come up with nonsense like "Dream Team" to describe these lawyers.
The term "Dream Team" is only properly used to describe the best in the field, like the 1994 Olympic basketball Dream Team consisting of players like Michael Jordan, Larry Bird, and Magic Johnson. The NBA itself has the best basketball players, by far, in the world, and the Olympic Dream Team was the best of these great players who night in and night out perform at an incredible level of skill above their contemporaries. The 1995 U.S. Davis Cup tennis team was called the Dream Team, but the team consisted of Pete Sampras and Andre Agassi, the two top tennis players in the world. It wouldn't bother me as much if the media who called these lawyers the Dream Team used the term tongue-in-cheek. But they were very serious about it. Dead serious.
Even an editorial in the Los Angeles Times referred to the defense lawyers as "the best that money could buy." Can you imagine that? This is the intellect of people sitting on the editorial board of one of the major papers of the world, the opinion-makers of our society. Wouldn't you think that at least one of these geniuses would say to another: "George, I understand this Cochran fellow has been practicing law in Los Angeles for thirty-two years. We've had countless murder cases throughout the years, many we've covered in fair depth. I can't recall ever seeing his name associated with even one of these cases. Have you?" I realize that thinking is hard work. That's why, as they say, so few people engage in it. But how much thinking is required to produce this type of question?
The point is, no one had to check. Being on a big case was enough. To hell with one's record. Don't confuse me with the facts, I've already made up my mind. On those occasions when reporters decided to do puff profiles on the backgrounds of Cochran and the others, they committed a cardinal error that is exasperatingly common among professional writers. How many times have you read a magazine or newspaper article with a dramatic or bold assertion in the caption or opening paragraph, only to search vainly for the support in the piece? Isn't it just common sense that when you set up a burden for yourself you at least have the decency to try to meet it? In a January 29, 1995, cover story on Cochran in the Los Angeles Times Sunday Magazine, the Times reporter typically and predictably and breathlessly described Cochran as a "brilliant" lawyer, and said that, "his effect upon a jury seems to be magical." He quoted unnamed lawyers as saying, "Cochran has an approach with the jury that is unbeatable," and "If, Johnnie tells the jury that a turkey can pull a freight train, they'll look for a rope." Fine. But unless you're an incompetent writer, don't you say to yourself: "Since I'm accepting all of these candied observations as true, I had better get the evidence to support all of this."
But the writer proceeded to name only one--let me repeat, only one--felony jury trial Cochran had ever won (I'm sure he's won other felony jury trials), the acquittal of actor Todd Bridges in 1989 for an attempted murder inside a "rock house" in the South-Central section of Los Angeles. Bridges, who was using about fourteen grams of cocaine a day at the time, testified at his trial that he was so intoxicated after a four-day cocaine binge that he could not remember shooting the victim. Most of the article was about Cochran's civil cases (two are mentioned, one of which he lost), the Pratt murder case, which he lost, his representation of Michael Jackson on the child-molestation civil lawsuit, which was settled, and the well-connected life he led. And that was it. The writer felt he had met his burden of proof.
Time magazine, which almost consistently was more mature, disciplined, and sensible than its competitor Newsweek in its reportage on the Simpson case, fell down in its January 30, 1995, edition. In another puff piece on Cochran, after the author made her obligatory reference to Cochran's legal "brilliance," she spoke of his "extraordinary" talent in the courtroom, but only cited one case to support what she was saying--again, the Todd Bridges case. Then the writer really outdid herself, telling how "extraordinary" Cochran's successful representation of Michael Jackson was. I don't know if any of you readers recall, but the Michael Jackson child-molestation case was a five-month jury trial, and the evidence was overwhelming against Jackson, but Cochran gave a brilliant four-hour summation, turning the jury completely around and gaining an acquittal for Jackson. If you don't recall this it's because the brilliant and extraordinary way Cochran got his client off in this case was not by winning in a court of law (I was just being facetious earlier, of course) but by having Jackson pay the young lad reportedly around $20 million. Yes, you read right--$20 million. This requires, of course, the ability of a top-notch trial lawyer before a jury.
Listen to Newsweek's early (July 11, 1994) puff piece on Simpson's main lawyers at the time, Shapiro, Dershowitz, and Bailey. These were "powerhouse" lawyers, Newsweek proclaimed to its readers, and to support its point (finally, with Newsweek, we're in the big leagues now; it knows it has to meet the burden it sets up for itself) said the three had defended such clients as Claus von Bulow (Dershowitz, as indicated, did not defend von Bulow at his trial), Patti Hearst (lost by Bailey), Leona Helmsley (not defended by Dershowitz, who did represent her on appeal and lost), Marlon Brando's son (pled guilty by Shapiro, and up until recently was eating prison food), and the Boston Strangler (who was never prosecuted for the eleven murders he was suspected of committing; he was prosecuted, instead, for several felony sexual assaults, Bailey defended him, and Albert DeSalvo, the Boston Strangler, was convicted). Some support. So much for quality of research and reporting by one of the two leading national news magazines in America.
I realize that even if you lose a case, it may not be attributable to anything wrong you did, i.e., you may have been "brilliant in defeat." But I assure you the writers of the Newsweek piece did not have this on their minds, any more than did the media reporters who immediately called the lawyers on the Simpson case "the best that money can buy" and "the Dream Team." The only thing they knew was that these lawyers had been "on" or somehow associated with these big cases. That was enough for them. Again, who am I to quarrel with such powerful logic? I know when I'm out of my league.
It should be noted that I wouldn't be making so much out of this if such shoddy research were confined to the Simpson case. But it's not. It's typical. If any of you readers want to see how little the opinion-makers of our society know whereof they speak, become very knowledgeable about a subject (as I have about the drug problem in America), and then read the articles they write on the subject. You'll be shocked to learn they rarely know their posteriors from a hole in the ground.
Now that we know from their backgrounds and records that to call the defense attorneys in the Simpson case the best that money can buy is not only silly but approaching a sacrilege, how did they perform, nonetheless, at the trial? In my Playboy interview before the trial, I said, "I'll guarantee you this. If the outcome of the trial ends up being favorable to the defense--such as a hung jury--the result will have nothing to do with anything special the principal lawyers for the defense did. And the favorable result for them will have to be traceable to dynamics other than Simpson's innocence, since he is quite obviously guilty." I said these other factors could be things like "race, celebrity, and bogus allegations of police misconduct." I stand by that original assessment.
Whatever substantive yardage the defense made in this case during the trial (I'm excluding final summation, which I will discuss later) was achieved almost exclusively by the two lawyers from New York in their attack on the reliability of the prosecution's scientific evidence, particularly the DNA evidence. Also, because the defense team had almost unlimited funds, they could vigorously contest every issue, split every hair, and then proceed to split the split hair (almost all of this done by the New York lawyers), as well as hire expensive forensic experts, one of whom, Dr. Michael Baden, they paid in excess of $100,000.
But setting aside the two DNA lawyers (top-flight technicians rather than top-flight lawyers), as far as the principal lawyers for the defense were concerned (Cochran, Shapiro, and Bailey), they were spectacularly ordinary throughout the trial. If I were to grade their performance on a relative basis, i.e., vis-a-vis other defense attorneys, I'd give them a B. But were I to grade them on an absolute basis I'd have to be in a very generous and magnanimous mood (you know, the sun is shining brightly in the morning and the orange juice is good) to give them any higher than a D or C-. In fact, the only thing they did (with Shapiro's apparent disapproval; more on this later) was to improperly and fraudulently inject race into the case. Believe it or not, several of the inane talking heads thought this tactic was "brilliant." But thugs out on the street with IQs of 80 play the race card. I will have much more to say on the actual performance of the defense lawyers in the Epilogue.
And what did the media say about the prosecutors in the Simpson case? They depicted them in the same, stereotypical way that prosecutors are always depicted by the media. The almost automatic adjective to describe a prosecutor is "tough," that for a defense attorney, "brilliant." In this case, even before the trial, when Clark was at her best arguing in front of Judge Ito during pretrial hearings, and clearly outshone Cochran, over and over the media described Cochran as "brilliant," Clark "tough and steely." They attributed to the defense lawyers star-celebrity qualities, while treating the prosecutors dismissively. Two representative examples from right at the beginning of the trial. In the February 6, 1995, edition of Time magazine, the prosecutors were described (again by the same silly writer referred to earlier) as "scrappy, overworked state employees who appear to be just that when set against the silver-tongued [of course], moneyed and remarkably personable defense lawyers." Here's the Los Angeles Daily News, in its January 29, 1995, edition: "The trial puts the high-priced, smooth, charismatic and experienced defense lawyers, the legal Dream Team, against the workmanlike, civil-servant prosecutors." The prosecutors, in fact, were much more experienced in criminal homicide cases than Cochran and Shapiro, though not Bailey.
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