In this case, in addition to their both speaking softly and without force (at one point, Judge Ito had to tell Darden, “Mr. Darden, if you would keep your voice up just a little bit so I can hear you”), there was the weak body language conveying a lack of confidence. Darden constantly shifted his body from side to side in front of the jury, rarely establishing eye contact with the jurors. In fact, the
New York Times
claimed, I believe erroneously, that Darden “never did look at the jury.” And Armanda Cooley, the foreperson of the Simpson jury, writes in her book that although she felt the prosecution believed in their case, “a lot of times Marcia would sigh and make gestures with her hands as though she were throwing in the towel. That didn’t help her.”
In addition to being weak in their demeanor and far too casual in the delivery of their words to the jury, the two prosecutors didn’t fight at all for fairness in the courtroom. Nowhere was this fact exemplified more clearly than in Clark’s and Darden’s rebuttal, where the defense interrupted the two prosecutors seventy-one times, which is unprecedented in my experience. No one whom I’ve spoken to has ever heard or read about such an egregious display of gross and improper courtroom behavior during an opponent’s summation. It simply isn’t done. Summation is the time during the trial when the court gives the lawyers far more latitude than in any other part of the trial. The lawyer’s inferences have to be based on the evidence, but they can be as ridiculous and unreasonable as can be; and outside the evidence, the lawyer can give examples, refer to matters of common knowledge, and literally tell stories, real as well as fictional, to illustrate his point. The opposing lawyers, through time-honored tradition in the legal profession, rarely object, interrupting only when the advocate clearly trespasses beyond the already broad perimeters of permissible oratory. And indeed, during the opening arguments of Clark and Darden, the defense objected a total of only three times.
The defense attorneys, of course, were well aware of the fact that objections are supposed to be extremely rare in final summation. Listen to Cochran’s statement to Judge Ito when he interrupted Marcia Clark for the first time in her opening argument: “I would like to ask to approach the bench because I don’t want to object to Ms. Clark’s argument” then later in the same objection: “I don’t want them objecting in my argument” then later still in the same objection, “…that is the reason I ask because I don’t want to object to Marcia’s argument.” Three apologies from Johnnie Cochran for just one interruption. Now listen to Barry Scheck when Clark objected for one of the very few times during his final summation: “I resent this interruption.”
But in Darden’s
rebuttal
argument (when the defense had completed its final summation, and knew the prosecution couldn’t reply in kind), Cochran and Scheck interrupted Darden twenty-one times. In Marcia Clark’s final address to the jury, the last address that either prosecutor could make in the case, and the most important address to the jury for the prosecution, Cochran and Scheck objected an incredible fifty times.
Even if Clark had been giving a powerful summation, constant interruptions would have substantially reduced its effectiveness. But because she was already giving a very weak summation, the interruptions made it almost pitiable. An objection destroys the speaker’s flow and momentum and the speaker’s and listeners’ concentration. Even something as minor as someone opening the courtroom door is a distraction, and if the judge doesn’t instruct the courtroom bailiffs to keep the door closed during summation, I always remind him to do so. But again, Cochran and Scheck interrupted the two prosecutors an astounding seventy-one times. Yet Judge Ito, knowing that Cochran and Scheck were deliberately making frivolous objections (the proof is that Ito sustained only two out of the seventy-one objections) to destroy the effectiveness of the prosecutors’ summations, did not once hold Cochran or Scheck in contempt of court, or even once admonish them to discontinue their outrageous, unprofessional, and yes, dishonorable conduct. This is the same judge who held Darden in contempt of court when Darden spoke over the judge’s voice just once to a serious insult by Cochran when they were at sidebar outside the presence of the jury, with absolutely no harm being done by Darden to anyone, much less the opposing side.
What Darden and Clark, particularly Clark, should have done after the third or fourth frivolous objection by Cochran or Scheck, the ill-mannered fighter from the streets of New York, was to ask to approach the bench. She could have said:
“Judge, you know that all of these objections, particularly those by Mr. Scheck, are frivolous and outrageous and designed solely to destroy the effectiveness of the people’s final address to the jury. I’m not asking you, I’m demanding that the next time Mr. Scheck interrupts me with a silly objection, you hold him in contempt of court. And if he continues after that, I want Scheck in the lockup. If either Mr. Cochran or Mr. Scheck continues to object and you let him get by with it, my remarks to you, as well as to them, will not be made here at the bench, but in open court before the jury and the millions of people who are watching. I can assure you, I’m not going to tolerate this anymore.”
If that would have been too difficult for Marcia Clark to do, after one of Cochran’s or Scheck’s interruptions calculated to frustrate justice, at an absolute minimum she should have turned away from the jury and toward Cochran (or Scheck, as the case may be) and, giving him a look that could freeze fire, say: “Mr. Cochran, there’s
going
to be justice in this courtroom.” Instead, Clark did absolutely nothing at all. She registered her disapproval of the two defense attorneys’ odious conduct only by rolling her eyes. The prosecutors were far too civilized for the defense attorneys. That would not have happened if I had been in that courtroom.
L
et me show you, with just one observation, how the summations of Marcia Clark and Chris Darden, based on this one point alone, could hardly have been any worse. The main core of the defense case was that their client, Simpson, had been framed by racist cops. This was so much the heart of their case that by the time of final summation they were deemphasizing somewhat the second prong of their defense—that contamination caused by the LAPD’s incompetence in the gathering and preservation of evidence had rendered all the subsequent scientific test results, mostly
DNA
, unreliable. With the exception of that portion of his final argument dealing with contamination, all the rest of defense attorney Barry Scheck’s argument strongly implied an
LAPD
conspiracy to frame Simpson. And virtually all of Cochran’s argument, the main argument for the defense, suggested, in paragraph after paragraph, rhetorical question after rhetorical question (“Isn’t it strange that…” “Why is it that…”), that the police had framed Simpson.
These are just a few of the literally hundreds of allegations by Cochran and Scheck, in their summations, of a police conspiracy to frame Simpson and then cover up their foul deed.
Cochran: “It took all four detectives [Lange, Vannatter, Fuhrman, and Phillips] to notify Mr. Simpson of what had happened? They didn’t have a criminalist to go over to notify him? Who’s fooling who here? They’re lying, trying to get over that wall to get in that house…. They just want to be inside that house and make her[Arnelle, Simpson’s daughter] leave to give Fuhrman a chance to start what he’s doing.” “Something’s wrong here, something’s sinister here.” “The depths to which they sunk, as part of this cover-up.” “From [officers] Riske to Bushey, you’ve seen this code of silence, this cover-up.” “Why would the glove be moist and sticky unless Fuhrman brought it over there and planted it there to try to make this case?” “We talked about socks where evidence was planted on them.” “You can’t trust him [Detective Vannatter]…this man with his big lies. You can’t believe anything he says.” “He [Fuhrman] put a bloody footprint in that Bronco.” “All them police officers, including Lieutenant Spangler, they were all covering for him [Fuhrman].” “How could the socks be there at 4:35 when they’re not there at 4:13? They’re setting this man up.” “They went and took [the socks] out of the hamper and staged [planted] it there.” “Was the blood planted at the back gate? Why didn’t they see the blood before that?” “[The prosecution’s case] has been reduced to a molehill under an avalanche of lies and conspiracy.” “Thank heaven [out of all of law enforcement in the case] there is only one person [the black police photgrapher] who wasn’t a part of the cover-up.”
Scheck: “You cannot convict Mr. Simpson when the core of the prosecution’s case is built on perjurious testimony of police officers, unreliable forensic evidence and manufactured evidence.” “It’s [Thano Peratis’s videotaped statement] obviously a convenient recantation and appears to have been prepared to suit the prosecution’s purposes when things just didn’t fit [i.e., Scheck is accusing the prosecutors of subornation of perjury].” “That Rockingham glove [the one found by Fuhrman] started at Bundy. Somebody took it somewhere else. And you know who that was.” “We can’t allow dishonest, manufactured evidence to lie at the heart of a case like this.”
At least 90 percent of Cochran’s five-hour argument and 60 percent of Scheck’s two-hour argument dealt, in one way or another, with the suggestion of a conspiracy by the police to frame Simpson for the two murders. Everywhere they looked, they smelled a rat. But who were the real rats in the courtroom?
So it was no secret that the heart and soul of the defense’s case was that Simpson was framed. Everyone knew this. In fact, if the prosecutors didn’t get the message during Cochran’s and Scheck’s summations, it had been obvious throughout the previous nine months of trial. Virtually every question the defense attorneys asked of most of the witnesses suggested a police frame-up. It got so bad at the trial that Hank Goldberg, the lead prosecutor on physical evidence, derisively asked all the
LAPD
criminalists and chemists (even those like young rookie Andrea Mazzola, who had never even heard of Simpson before this case): “Are you a part of any conspiracy to frame Mr. Simpson?”
And the newspapers reported the allegation of frame-up on a regular basis during the trial. Here are just a few examples. June 25, 1995,
Los Angeles Daily News
: “As Johnnie Cochran made clear in his opening statement five months ago, the defense maintains Simpson is the victim of a conspiracy between police investigators and criminalists who have planted or manufactured evidence to frame Simpson.” July 21, 1995,
Los Angeles Times
: “From the start of the trial, Simpson’s attorneys have suggested that police planted evidence in their quest to build a case against the former football star.” September 13, 1995,
New York Times
: “Defense lawyers contend that corrupt
LAPD
officers sprinkled the missing blood around anything incriminating in their conspiracy to frame Simpson.”
Since it had been obvious to everyone for months, then, that a police conspiracy to frame Simpson was the essence of the defense, as the prosecutor don’t you automatically sit down with your yellow pad and come up with seven, eight, or nine very powerful arguments why a frame-up in this case was ludicrous, and argue for at least an hour or two on this point alone? Since you know that if the jury buys the police-conspiracy, frame-up argument (which the Simpson jury, we know, did), the verdict will have to be not guilty, don’t you instinctively and automatically do this? I mean, this has nothing to do with being a lawyer. In any area of human endeavor, if you know the other side (to a contract, a war, a sporting event, argument at work, or what have you) is placing its primary emphasis in a particular area, and you want to prevail, again, don’t you automatically devote a lot of time, energy, and resources in your effort to counter and overcome the main thrust of your opposition?
Yet unbelievably, Clark, in her opening argument,
never uttered one single word to knock down the frame-up, conspiracy allegation
. She treated it like a nonissue. All she told the jury (her only words on the subject) was, “If there was evidence of a conspiracy, it would be my obligation to dismiss [the case], pure and simple, and I can go on to the next case.”
In reality, after commencing her opening argument on an affirmative note by arguing that, in looking at the case as a whole, it was clear that the evidence pointed overwhelmingly to Simpson’s guilt, she should have dealt with the conspiracy issue in depth in her opening argument. She should have done this
before
she got into the heart of her summation setting forth all the evidence, and the inferences from that evidence, that established Simpson’s guilt. The reason, I think, is obvious. If a lawyer doesn’t first try to eliminate the negative (here the allegation of a frame-up), then at the very moment he is making his positive arguments, the jury is thinking, “Well, what you say may be true, but what about this and what about that?” and this necessarily dilutes the force and persuasiveness of his argument. By the time the lawyer argues the strong points of his case, he should want the jurors’ minds to be completely clear and receptive to the arguments they are hearing. But again, Clark never said
one word
throughout her entire opening argument to knock down the alleged police conspiracy to frame Simpson! Did she feel that if she ignored it, somehow it would go away all by itself?
And in her rebuttal, her last address to the jury, she treated the issue so superficially that she commented on it for less than one minute, and she waited until the end of her argument to do so. After over one year to think about and prepare a strong response to the heart of the defense case, these are the only words she uttered to attempt to rebut the police-conspiracy, frame-up allegation in her final address to the jury: “Do you realize how many people would have had to have gotten involved in a conspiracy within an hour? Can you imagine how this could happen? Detective Vannatter and Detective Lange never even knew Mark Fuhrman until they met him that night at Bundy, and yet the allegation by the defense is that they got together that night meeting for the first time, the very first time, and everybody is covering up and conspiring all of a sudden. Impossible. Not only that, but there are other people involved as well, people we don’t even know who they are, according to the defense, who are willing to get involved in this. You realize how many people have to be involved? I mean it boggles the mind. We don’t even know who they are talking about. But that’s the contortion you have to go through to believe in this conspiracy theory.”