The closest encounter I’ve had with something like that was a murder case I prosecuted years ago against a man named Camden Davidson who murdered a man he learned had been having an affair with his wife while he was away in the service. When he got out, he stalked the man for two weeks and finally waited for him in the backseat of the man’s car, directed the man to a deserted lot, and shot and killed him. One thing I remember about the case was the rare beauty of Davidson’s wife, who attended every day of the trial, despite constant gawking from courtroom spectators. In any event, I had built up what I felt was a pretty solid case of circumstantial evidence against Davidson. About two or three days before final summation, there was a torrential downpour here in L.A., and the next day a young boy walking along a gully next to the Pasadena freeway found a gun that had been washed down from an adjacent hillside. I forget how the gun reached the
LAPD
(probably through the boy’s father), but the firearm people over at
LAPD
concluded that it was the murder weapon, and I was able to connect the gun indirectly to Davidson, actually fortifying, obviously, not undermining, my case against him.
One of the main reasons why lawyers spend so little time preparing their summation is that they don’t feel it’s the most important part of the trial. And I’ve never understood why. In life, if you want someone to come around to your viewpoint, isn’t it all-important
what
you say and
how
you say it? Is a trial any different? Isn’t the lawyer trying to convince someone, in this case, the jury, of the rightness of his cause? Therefore, shouldn’t most of his preparation and efforts be directed toward this final appeal to the jury? Not so, say many experts. Louis Heller, a former justice of the New York Supreme Court and before that a prominent trial lawyer, writes in his book
Do You Solemnly Swear
, “An address to the jury should be
extemporaneous
and reflect spontaneity.”
In my opinion, a summation must either be written out or set down in a comprehensive outline. The problem with even an outline is that although all the points the lawyer wants to make are there, he does not have the all-important articulations; that is, he does
not
have his points expressed in the most effective way. And it’s simply not possible to powerfully articulate a great number of points, one immediately following another, extemporaneously. There
is
a best way to make a point, and to find it takes time and sweat on the yellow pad. But whether one should write out one’s summation or put it into an outline, it has been my experience that the majority of trial lawyers—even many high-priced ones in major, nationally publicized criminal trials—do neither, addressing the jury after scandalously little preparation. Far too often this results in their delivering arguments which are disjointed and sterile in articulation, and which, most injurious of all to their clients, omit a number of salient facts and inferences.
In a complex trial involving many witnesses and thousands of pages of transcript, to discuss the highlights and nuances of the case and draw the necessary inferences, in the most telling sequence, always seeking simplicity and clarity of expression, requires an enormous amount of written preparation.
The one advantage in arguing extemporaneously is to be able to talk to the jury eye to eye, with the candor of spontaneity. But if a trial lawyer is willing to put in the hours, he can have such a grasp of his written or outlined argument that, like an actor on a stage whose lines flow naturally, he can deliver it to the jury giving the appearance of spontaneity. (Mark Twain knew whereof he spoke when he said, not just facetiously, that “it takes three weeks to prepare a good ad lib argument.”) If I’ve had adequate time to prepare, I only have to glance at my notes sparingly. I can look at one word on a page, and the whole page is vivid in my mind.
Final argument is nothing more than a speech, and I know of no great speech in history that was not carefully prepared before it was delivered. Lincoln’s Gettysburg Address consisted of only ten sentences. Of his 271 words, 202 of them were just one syllable. But these historic words went through five drafts and were the result of two weeks’ thought and preparation, handwritten on two pages that were in front of him as he spoke.
The conventional wisdom is that a summation should be succinct, focusing only on the main points in the case. Not only can’t a lawyer keep a jury’s attention for more than an hour or so, it is said, but discussing the smaller points only clutters and dilutes the thrust of the main arguments. I may be wrong, but my personal opinion is that this couldn’t possibly be a more serious mistake—in many cases, perhaps a fatal one. Juries, unaccountably, often base their verdict on (or are heavily influenced by) the most tangential, seemingly insignificant points. Just as in surveying the ocean bed “no rock or prominence can be left unnoted with safety to the mariner,” a lawyer should want to be heard on virtually every point in the case.
Moreover, I do not agree that it is difficult to hold a jury’s attention for more than an hour or so. In fact, it is not difficult to keep their attention for one, two, or even three days if the lawyer can deliver a powerful, exciting summation that is sprinkled with example, metaphor, and humor; and particularly when he makes it obvious to them that he has a lot of important observations to make about the case and they can only fulfill the oath they took to reach a proper verdict if they listen to him closely—that is,
if he convinces them that they need him.
My editor suggested that I write out in this book what my summation would have been in the Simpson trial if I had been the prosecutor. I told him, as I now tell the reader, that that is not realistic. If I had been the prosecutor in the case, I would have easily put three to four hundred hours into the preparation of my summation, and it would probably be close to a thousand transcript pages long. Here and there, however, I will set forth a few arguments, in bold type, that I would have made in the case.
For instance, since this was such a long and hotly contested trial, it’s possible—not being the prosecutor, and not having a sense of the feeling in the courtroom, this is just a possibility—I would have commenced my opening argument to the jury by making an obvious and rhetorical statement which, right at the start, might have psychologically jarred the jury back into reality:
“I’d like to make this observation, ladies and gentleman, about a matter that could be in your mind, either consciously or subconsciously. You folks have been sitting here now for over nine months, listening to a great number of issues being vigorously contested by each side. You’ve heard well over one hundred witnesses give thousands of pages of testimony. Because of this, it could be natural for you, as lay people, to think that there must be a real issue here as to guilt. I mean, if there was no issue, why have you been here for nine months? Well, ladies and gentlemen of the jury, we have been here for nine months not because there is any real issue of guilt. Mr. Simpson’s guilt couldn’t possibly be any clearer. When your blood is found at the murder scene, and the victims’ blood inside your car and home, that’s really the end of the ballgame. There’s nothing more to say. We’ve been here simply because he pled not guilty to these murders and came up with a desperate defense—as most people in his shoes would, too, if the only other option they had was to plead guilty and go to prison. In America, no matter how guilty you are, even if there are one hundred eyewitnesses to your crime, our system of justice—and I wouldn’t change it for anything—allows you to plead not guilty and have a trial. And that’s the
only
reason why we’ve been here in this courtroom the past nine months. There is no other reason.”
T
here are many elements that go into an effective summation, of course, and one of them is the way it is delivered. One thing I underline in speaking to trial lawyer groups around the country is that a lawyer cannot expect a jury to buy his cause if they detect that he does not believe in it
completely
himself. There is no question in my mind that Clark and Darden completely believed in their case. The problem is they didn’t clearly show it to the jury. Both of them were far too laid-back and casual in their presentation. There was no fire, no passion, at all. Cochran and Scheck, the ones who should have had much more difficulty summoning up fire and passion (since their client was guilty and they had to know it), spoke with more flame than the two prosecutors. In fact, throughout the trial, the sad irony was that the defense attorneys seemed to be fighting harder for injustice than the prosecutors were for justice. Christopher Darden, apparently, didn’t even have a strong sense about his
duty
to fight. In his book,
In Contempt
, he says that by mid September 1995 (over two weeks before the end of the trial), “All we could hope for was a few holdouts on the jury.” But, he added, if there was a retrial, “I certainly wouldn’t be back. I had no more energy for this circus, and I had nothing more to sacrifice…There was a sense that it was all perfunctory, that everything that could be said, had been said.” Can you imagine that? You have the strongest case in the world against Simpson, you know he is guilty, two people have been brutally murdered and are decomposing in their graves, and instead of fighting to the very end with every ounce and fiber in your body to bring about justice,
you give up
, as Darden, by his own admission, seems to be saying? Such an attitude, for the most part, is alien to the prosecutorial profession.
Although the soft sell (which both prosecutors embraced as their modus operandi before the jury) might be efficacious in selling a life insurance policy to someone in the privacy of his home, it hardly serves a trial lawyer well in summation, particularly if you’re the prosecutor. Not only are you asking a jury to put someone behind bars for life, but you’ve got the burden of proof, a high one at that. And it’s difficult to meet that burden if you’re not forceful. My sense is that it simply isn’t Darden’s nature to be forceful, but I have the sense that it is Marcia Clark’s. I have the feeling, and it’s only a feeling, that early on, long before final summation, she unfortunately bought into the notion advocated by many of the silly talking heads that in front of the jury she should not be forceful, but rather be sensitive, and soften her image. I don’t know if any of you readers noticed, but throughout the trial (particularly at the beginning, before she got beaten down by Judge Ito), Clark performed differently before Judge Ito outside the jury’s presence than she did before the jury. It was as if she had two different personalities. She was considerably more forceful and effective before Judge Ito than before the jury, where she was less dynamic and more timid.
But if the defendant committed the crime, the DA is the one in the courtroom fighting for justice, avenging the murders, as it were. And in doing so, the jury doesn’t mind it at all if the DA is forceful and aggressive. Not shrill or abrasive, but forceful. They even expect it. What the jury wants from the prosecutor is that he or she be eminently fair. Not sensitive, but fair.
One other distinct possibility for Clark’s schizophrenic performance at the trial is that since she had learned that black females disliked her, viewing her as pushy, she felt she had to change her natural personality in front of them and become much more soft. But if this is, indeed, the reason for her less forceful and dynamic performance in front of the jury, wouldn’t it have been the right and proper thing for her to have removed herself from the case before the trial started, rather than to perform in front of the jury in a way that was unnatural for her, and where she was therefore not at her best? Wouldn’t that have been in the best interests of justice?
No more than two minutes after Clark gave her opening statement at the beginning of the trial, which was months and months before her final summation, a reporter for the
New York Times
called me to evaluate Clark’s performance. The very first words out of her mouth were “Was she sensitive enough?” “
Sensitive
enough,” I said, “that was her problem. She was too sensitive. She wasn’t nearly forceful or dynamic enough.”
The same was true of Clark’s and Darden’s final summations to the jury, where both were surprisingly weak. Not only weren’t they forceful and decisive, they actually went to the other extreme, making statements which psychologically, with this jury, were very damaging to the prosecution. As I said earlier, Darden actually told the jurors in a passive manner, “
Nobody
wants to do anything to this man,” which is almost tantamount to telling them that everyone, whites as well as blacks, was hoping for a not-guilty verdict. That wasn’t even true, but even if it had been, nothing could be worse than to suggest to a jury that if it lets a defendant go, everybody would be relieved, perhaps even happy. It obviously makes it so much easier for the jury to return a not-guilty verdict.
Then he made an even more unbelievable statement. He told the jury that in deciding whether Simpson was guilty or not guilty, “whatever you do, the decision is yours, and
I’m glad that it is not mine
.” Now what the hell does that mean? Isn’t that the same thing as telling the jury that this is a tough, close case? It’s almost telling them it’s a reasonable-doubt case. The prosecutor, of course, should always convey to the jurors just the opposite, that the evidence of guilt is so clear, obvious, and overwhelming that they shouldn’t have any trouble at all reaching a guilty verdict.
Also, a trial lawyer
has
to be confident in front of the jury. If he’s not, then he has to be a good actor and at least appear to be confident. It’s one of the most important ingredients of a successful trial lawyer. If he’s not confident, the jury will pick it up just like that—in the way he talks, the way he walks, the expression on his face, the inflection in his voice. And again, a lawyer cannot expect a jury to buy his cause if they detect that he doesn’t believe in it completely himself. (A lawyer must be very careful, however, that he doesn’t cross over from confidence into the area of arrogance or condescension. That can only hurt him with the jury.)