To fortify this argument, as well as weaken the bond of identification the blacks on the jury may have had with Simpson because of his color, I’d also point out to the jury that the police, if they were of the mind to frame a black, would likely not even look upon Simpson as a black man:
“Stop to think about it, ladies and gentlemen. Here’s someone who is a multimillionaire, lives in a very fashionable, virtually all-white neighborhood, divorced his black wife and married a white woman, Nicole, and moved and socialized exclusively in the white corporate and establishment worlds, with powerful connections. Why would they want to mess with someone like this? You jurors, particularly those of you who are black, know better than I do that this defendant is no typical black man. I mean, he’d need a road map to get back to the hood.”
Now let’s take Mark Fuhrman himself, the defense’s devil incarnate, who was the primary member of the alleged police conspiracy. Fuhrman went out to Rockingham in 1985 (there was uncontroverted testimony by Fuhrman on this at the trial—the defense never tried to challenge it), pursuant to a call from Nicole, and saw Nicole crying and sitting on the hood of her Mercedes-Benz, with Simpson standing nearby. Simpson, Nicole told Fuhrman, had in a rage smashed the window of her car with a baseball bat. So here we have a situation where Fuhrman (according to the defense such an extreme racist that he framed Simpson for the murders) has knowledge that Simpson had committed a crime, and to exacerbate the situation, this black man, Simpson, was with a white woman. Yet because Simpson was the celebrity he was, Fuhrman does nothing at all. In fact, he doesn’t even fill out a police report. Nothing.
So we have proof that even Fuhrman pampered Simpson
, gave him special treatment. Don’t you argue this to the jury if you’re the prosecutor?
Along the same line, don’t you argue to the jury that if Simpson was, in fact, framed, and was innocent, how did the
LAPD
conspirators get Simpson, who was innocent, to act like the guiltiest person imaginable? Did they come up to Simpson and say, “O.J., we’re going to frame you, but we could use your help, ol’ buddy. We need you to act guilty,” and Simpson replied, “No sweat. Tell me what you guys need”? The prosecutors should have pointed out to the jury that if Simpson was innocent, how did they get him to tell the monumental lie to the limo driver about having overslept and just gotten out of the shower, when the limo driver had just seen him enter his home thirty seconds earlier? To insist, when he and Kato Kaelin were putting his bags into the limo for the trip to the airport, that Kato not pick up, out of the five traveling bags, the one bag, the small dark one, that has never been seen again? To perspire profusely in the limo on the way to the airport on the night of the murders even though it was a cool night and the air-conditioning was on? To stay up virtually all night staring out the window on the flight he took that departed for Chicago at 11:45 p.m., even though he had been up since 6:00 that morning? To not ask the L.A. detective who called him in Chicago to inform him that Nicole was dead how, when and where it happened, etc.? How did they get him to write a suicide note, to get a gun, his passport, and a cheap disguise, and to flee instead of turning himself in? If there is a police conspiracy to frame Simpson, how did they get Simpson to be such an extremely cooperative frame? Did Simpson, by any chance, decide to join the conspiracy against himself?
Don’t you tell the jury:
“We have the incredibly ridiculous situation here where Mr. Simpson’s defense attorneys are claiming to you folks that he was framed by the
LAPD
for these murders, but not even their own client, Mr. Simpson, agrees with them. If you know you’re completely innocent of a crime, yet there’s a ton of evidence pointing to your guilt, you immediately know, of course, that you’ve been framed. Yet although Mr. Simpson’s defense attorneys have tried to convince you for over nine months that he was framed by the
LAPD
, Mr. Simpson himself has never told anyone or even vaguely suggested such a thing to anyone.
“If he knew or suspected he had been framed, wouldn’t he have said so in the thirty-two-minute interview he gave the police the day after the murders? Wouldn’t he have said so in the farewell letter he wrote five days later before he fled in his friend Al Cowlings’ Bronco? And during the slow-speed chase, when he was talking on his cellular phone to the police and his friends and family, he said nothing about being framed by the
LAPD
or anyone else. In fact, at the end of that chase, when the
LAPD
detectives took him into custody, he told the arresting officers, ‘I’m sorry, you guys. I’m sorry.’ He kept telling them he was sorry for having led them on the chase. Is that what you say to people you believe are framing you for murder? That you’re sorry for putting them out?
“I mean, when you’re being framed for murders you didn’t commit, don’t you shout out you’re being framed from the highest rooftops? Yet in all these times I’ve told you folks about when he had all the opportunity in the world to say he was framed, not one word, not one single word came from this man over here [pointing to Simpson] that he was framed. Mr. Simpson’s lawyers want you to believe something, then, that he doesn’t believe himself. There oughta be a law against things like this.
“Quite apart from all the scientific,
DNA
evidence in this case that conclusively proves this man’s guilt beyond all doubt, other than his getting up in court right now and confessing to you folks, he has already told you, by all his words and all his conduct, that he’s
guilty
. Guilty of these two murders.”
C
hristopher Darden’s opening
argument
(remember, we are talking about a part of the final summation) to the jury was an attempt to establish the motive for the murders. The essence of his argument, as in his opening
statement
many months earlier, was that Simpson was obsessed with controlling Nicole and when he lost control, he felt he had no choice but to kill her.
A few preliminary observations should be made. One is to distinguish motive from intent, two terms which are sometimes used interchangeably in the criminal law. Motive is the emotional urge which induces a person to say or do something. It is different from intent, for a person may intend to steal property or kill someone, and will be guilty of the theft or homicide irrespective of what his motive was (e.g., need, avarice, revenge, jealousy, etc.). While intent is an element of every serious crime, motive is never an element of the
corpus delicti
of any crime. Therefore, the prosecution
never
has to prove motive. The former Los Angeles DA referred to earlier who was a commentator for one of the networks during the Simpson trial, and who has never prosecuted a felony case, proclaimed in print and on TV that “a jury will almost never convict unless they think they understand why somebody did it.” This isn’t so at all. I’ve put people on death row without knowing for sure what their motive was—that is, why they did it. All I knew for sure was that they had put someone in his or her grave and had no right to do it. And if I, the prosecutor, didn’t know for sure what their motive was, how in the world could the jury have?
However, even though the prosecution doesn’t have any legal burden to prove motive, it is always better if it can, because just as the presence of motive to commit a crime is circumstantial evidence of guilt, the absence of motive is perhaps even stronger circumstantial evidence of innocence. Motive takes on far more importance in cases where the defendant did not physically commit the crime, because if he didn’t commit it, number one, and number two, never had any ostensible motive or reason to have someone else commit it for him, it’s obviously difficult to secure a conviction under these circumstances. I was faced with this problem in the Manson case, because Manson was not present when the murders took place. And although there were supplementary motives for the Tate-LaBianca murders, the overriding motive Manson used to work his killers up into such an emotional lather that they were willing to commit murder was exceedingly bizarre—so bizarre, in fact, I knew that if the jurors heard the many components of it from the lips of just one or even two witnesses, they might think there was something wrong with me to even offer such a motive for their consideration.
Briefly, Manson convinced his followers that the best way to bring about a new and better social order was to start a race war between blacks and whites, a war he called Helter Skelter. And he said the way to do this was to frame the black man for the murders. This would cause the white community to turn against the black community in an apocalyptic war to end all wars. At the murder scene, the killers printed words from Beatles songs in blood—code words like “rise,” “pigs,” and “Helter Skelter.” Manson preached to his disciples that the Beatles used these words to convey subliminally their own desire for Armageddon. During Helter Skelter, Manson told his followers, he would take them to the bottomless pit in the desert, a place he derived from Revelation 9, a chapter in the last book of the New Testament from which Manson told his followers he found complete support for his philosophies on life. (Manson equated Revelation 9 in the Bible with the Beatles song “Revolution 9.”) The bottomless pit, he said, was a land of milk and honey, twelve types of fruit on every tree, and his family (his followers) was going to grow to a size of 144,000 people, which refers to the twelve tribes of Israel mentioned in Revelation 7.
Manson believed that the black man was going to win this war because they had been stepped on for centuries by the white man and it was their karma, their turn to take over. But Manson was a racist, and he believed blacks were subhuman and less evolved than the white man, so he told his followers that even though the blacks would win this war, they’d never know how to handle the reins of power, because “blackie only knows what whitie has told him to do.” So the black man would have to turn over the reins of power to those white people who had survived Helter Skelter, i.e., Charles Manson and his family. Then, he said, “we’ll pat blackie on his kinky hair, send him on his way to picking cotton,” and take over the leadership of the world.
Again, since Manson didn’t participate in the murders, it was critical to prove that Manson had the motive to commit them, and that that motive was Helter Skelter. Through various witnesses testifying to different aspects of it (virtually all of whom were afraid to testify, fearing retribution from Manson), I put the whole picture of Helter Skelter before the jury, proving that Helter Skelter was Manson’s philosophy, that it was he who introduced it into his family and spoke of it all the time. And when the words “Helter Skelter” (the title of a Beatles song) were found printed in blood at the murder scene, I argued to the jury that this was tantamount to Manson’s fingerprints being found at the scene.
But in the Simpson case, although Simpson’s motive for the murders was important (and, as I’ve indicated, the prosecution should have presented more evidence of it than it did, such as the stalking, which showed obsession), it wasn’t nearly as critical as it was in the Manson case, because Simpson was the one who committed the murders. Since his blood was found at the murder scene and the victims’ blood inside his car and home, it didn’t make any difference why he committed these murders. Even if the murders arose out of an argument over basketball tickets, so what?
Darden’s argument to the jury on the
known
facts of physical and psychological abuse by Simpson against Nicole throughout their marriage as it related to motive was effective. But when he started to argue,
as fact
, exactly what was on Simpson’s mind during the days leading up to the murders, as well as on the day of the murders, including precisely why Simpson murdered Nicole, he was doing nothing but hurting the prosecution’s case with his speculation. For example, when Simpson and his girlfriend, Paula Barbieri, had an interior decorator over at Simpson’s house on June 6, 1994, six days before the murders, Darden told the jury in no uncertain terms: “The fuse is burning and it is getting short, okay? He is trying to erase her [Nicole’s] presence from his home, okay? He has hired an interior decorator to redecorate the bedroom and bathroom. He is going to erase her presence from the house, or at least he is going to try.” But isn’t one among several other possibilities that it was all Barbieri’s idea to redecorate?
Like his co-prosecutor Brian Kelberg with Dr. Lak, Darden was setting up a burden for himself that he not only didn’t have under the law, but had no way of meeting. As he was telling the jury everything that was going on in Simpson’s mind, I was thinking to myself, “How in the heck does he know for a fact what was going on in Simpson’s mind?” And if I, as pro-prosecution as anyone could be, was having these thoughts, one has to wonder what the jurors were thinking. So here, in a criminal case where the prosecution has the burden of proving guilt beyond a reasonable doubt, the prosecution was devoting a large part of its summation to the jury talking about things that could only be speculation on its part. But speculation and proof beyond a reasonable doubt are as incompatible with each other in a criminal case as a mouse and a hungry cat.
Everything Darden said would have been much more effective if he had gone about it differently. After prefacing his argument on motive by reading to the jury (as he did) the instruction that motive does not have to be proved by the prosecution, he could have then told the jury, “Based on the evidence, what probably happened, although we cannot be sure, and I want to remind you once again that we have absolutely no burden at all to prove this…” and then proceeded to say essentially what he said, but in a much more condensed form, which would have conveyed to the jury that proving what was on Simpson’s mind wasn’t so critical an issue in the case. Speculation isn’t as bad if you call it speculation. Darden did not do that. He claimed to know
for sure
what Simpson was thinking.