“One very important footnote to this man’s dripping blood in his car and home and on his driveway on the night of these murders. Even if we made the extremely absurd and extravagant assumption that the coincidence of his cutting himself badly around the very same time Ron and Nicole were murdered is not farfetched which we know it is—has it ever happened to you, or to any adult you know or have heard of, that you cut your finger and the blood got all over your car and home? Don’t you see how silly it sounds to even make this argument? When you cut yourself, unless you’re in a frantic and frenzied state which Mr. Simpson obviously was in—you stop the bleeding with your hand or your handkerchief and you put on a bandage. You don’t bleed all over the place.
“Ladies and gentlemen of the jury, there is
no explanation
for what happened in this case other than Mr. Simpson’s guilt. None at all. Sometimes in life there is more than one possible explanation for an event. But not with what we’ve been talking about. If there were, obviously the defense would have presented that explanation to you. But not even a Houdini can pull a rabbit out of a hat when there is no rabbit in the hat. I repeat, even if there were no other evidence in this case, Mr. Simpson, in so many words, and from his own lips, admitted murdering these two victims.
Within minutes of these murders, there is blood all over his car, home, and estate.
And he says he has absolutely no idea how he got cut. Under these circumstances, it isn’t possible for him to be innocent—that is, not in the world in which we live. You know, I’m talking to you folks and you can hear me, there will be a dawn tomorrow, that type of world. Only in a fantasy world could this man be innocent. As sure as I am standing here, as sure as night follows day, this man is guilty.”
M
arcia Clark’s clumsy and inept way of arguing the most important piece of evidence in the case against Simpson extended to her discussion of reasonable doubt, the most important
legal
issue in the case. We will see in the Epilogue that Cochran also did not have a solid grasp of the doctrine. We know this from his having told the jury, during his opening statement, that it had to determine “the guilt or innocence” of his client, which is not the issue at a criminal trial. It’s whether the prosecution has proved guilt beyond a reasonable doubt. During his final summation, Cochran continued to betray his lack of knowledge of the doctrine of reasonable doubt by this new (at least I’ve never heard it before) and clearly incorrect statement: “This case is about whether these facts establish guilt
or innocence
beyond a reasonable doubt.” Accomplished criminal lawyers just don’t talk that way.
Clark articulated the doctrine of reasonable doubt in a way that could only hurt the prosecution. It was bad enough that she didn’t state the strength of the prosecution’s case strongly enough (“We have more than met our burden of proof in this case” and “The defendant has been proven guilty easily beyond a reasonable doubt” is fine for many cases, but when the evidence is as strong and unequivocal as this case, the prosecutor should argue to the jury that although the prosecution only has the burden of proving guilt beyond a reasonable doubt, in this case it proved his guilt beyond
all
doubt), but she also misstated the doctrine, telling the jury that reasonable doubt “is a doubt founded in reason.” One would think that would be correct—a reasonable doubt is a doubt founded in reason. But the courts in California and elsewhere have held that a judge instructing the jury that “reasonable doubt means just what it says, a doubt based upon reason” is an incorrect statement of the law (
People v. Garcia
, 54 CA 3d 61 [1975]).
I actually was quite surprised when I heard Clark, a supposedly experienced prosecutor, define reasonable doubt the way defense attorneys, not prosecutors, do. In fact, later in his summation, Cochran told the jury: “What [reasonable doubt] really is is a doubt based upon reason.” Chris Darden knew that Cochran’s defense articulation of reasonable doubt was incorrect. In his closing argument to the jury, he correctly told the jury (thereby contradicting Clark, his co-prosecutor): “Mr. Cochran said to you, ‘Reasonable doubt is doubt with a reason.’ That is not reasonable doubt.”
So the lead prosecutor and lead defense attorney in the most publicized murder case of our time were both defining reasonable doubt incorrectly to the jury, and unfortunately the incorrect definition they were using favored the defense.
Since virtually all people (including jurors) believe they are reasonable, any doubt they have must, by definition, also be reasonable. But we all know this isn’t true. In fact, the jury instruction obliquely alludes to this when it says that reasonable doubt “is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt.” Clark did go on to tell the jury: “I have a possible doubt that the sun will come up tomorrow. Do I have a reasonable doubt about it? No. I have no doubt founded in reason that that is going to happen.” Nonetheless, to these jurors, an extreme example like the one Clark gave to them is not going to eradicate the basic thought in their minds that since they are reasonable people,
any
doubt that’s not knowingly far-fetched must be reasonable.
What
is
a reasonable doubt? As I point out in the Epilogue, it does not lend itself to a definition, and the attempt to define it only confuses further, but I always told juries, without objection from the judge or opposing defense counsel, that a reasonable doubt was “a sound, sensible, logical doubt based on the evidence in the case.”
The most damaging word by far in the term “beyond a reasonable doubt” is “beyond.” When I first started out as a prosecutor, I was always troubled by defense counsel’s arguing to the jury that the prosecution had the burden of proving guilt “beyond” a reasonable doubt. They emphasized the word “beyond” as if the prosecution had to go beyond the horizon and to the ends of the earth to prove guilt, which is consistent with laypeople’s erroneous impression that guilt has to be proved “beyond a
shadow
of a doubt.” I sensed something was wrong, but I didn’t know what it was. So I sat down with my yellow pad (my security blanket) one day and started to analyze the word “beyond” as it related to the doctrine of reasonable doubt. Finally, it dawned on me that the word “beyond” was not only a needless appendage, but much more important, in the term “beyond a reasonable doubt,” it is misleading to the jury because it is not used in its principal sense of “further” or “more than.” If it were, the prosecution would have to prove there is
more
than a reasonable doubt of a defendant’s guilt, when obviously, they have to prove just the opposite—that there is
less
than a reasonable doubt. Instead, “beyond” is used in its secondary sense of “to the exclusion of.”
In my cases thereafter, after explaining to the jury the true sense in which the word “beyond” is used, I would say this to the jury: “The prosecution, then, has the burden of proving the guilt of this defendant
to the exclusion
of all reasonable doubt. With this in mind, we can completely eliminate the word ‘beyond’ from the term ‘beyond a reasonable doubt’ and come up with this [which I’d also write on the blackboard]: ‘If you do not have a reasonable doubt of the guilt of this defendant, convict. If you do have a reasonable doubt, acquit.’ We have eliminated the word ‘beyond’ from the term ‘beyond a reasonable doubt’ and we still have a very accurate definition and statement of the doctrine of reasonable doubt.”
When I was a prosecutor, I never had any judge or defense counsel object to the verbal surgery I had performed on the term “beyond a reasonable doubt,” and as a prosecutor I found this surgery to be an important point.
J
ohnnie Cochran’s final summation to the jury was his best performance at the trial. Contrasted to the uninspiring and flat delivery of the two prosecutors, Cochran spoke with more style, flair, and, though the facts were against him and he was attempting to thwart rather than bring about justice, more passion. One quality Johnnie Cochran has which most trial lawyers don’t have, one that is essential to being a successful trial lawyer, is that he’s a fighter. Not a superb one at all, but an adequate one. He clearly demonstrated that he was more of a courtroom battler than either of the two lead prosecutors in the Simpson case.
But although Cochran spoke with more passion, he definitely did not, as the media proclaimed, give a stirring, fire-and-brimstone speech remindful of a Southern revivalist preacher. If that is the simile, Cochran was a rather pale imitation of such a religious orator, as just a few minutes of TV-watching on any Sunday morning will show. In fact, Cochran’s few transparent attempts at such evangelical tent-preaching for the obvious benefit of the black jurors rang hollow, since his cadence and intonation were obviously changed for effect.
Cochran, surprisingly, was more specific in his summation than either Darden or Clark. He quoted the actual trial testimony much more than they, and wasn’t saying “I think” the way the prosecutors so often did. He came across as being more confident and knowledgeable about the facts of the case than the prosecutors. This is inexcusable. A prosecutor should have an unexcelled command of the facts, which gives the argument he makes force and credibility.
And Cochran proved to be better than the prosecutors at the art of argumentation. Although his argument was very poorly structured and he rambled discursively from one issue to another, with the help of the many lawyers on the defense team (and even lawyers not involved in the case sending in suggestions), at one point or another in his summation he managed to point out to the jury all the small problems with the prosecution’s case. Though he could have gotten appreciably more out of many of his articulations on these points, he was nonetheless effective since he
did
make the points, and his tone and delivery throughout suggested these were actually
big
problems with the prosecution’s case. And although it should have been the prosecution expressing outrage at the conduct of the defendant and his lawyers, it was Cochran, and later Scheck, who acted as if they were on the side of truth and justice and had been wronged by the
LAPD
and DA’s office.
For instance, though they interviewed him, the prosecutors failed to call Robert Heidstra, a defense “timeline” witness who testified he heard Nicole’s Akita dog start barking crazily at around 10:35 p.m. (several prosecution witnesses said the time was around 10:15 to 10:20 p.m.), narrowing the time for Simpson to have committed the murders and do what the prosecution alleged he did before being seen back at his estate at 10:55 p.m. Though this was an obvious argument, Cochran argued: “It came out that Robert Heidstra had been talking to the prosecution. But they don’t call him because [his testimony] doesn’t fit in their time-line. What about this search for truth? Can they handle the truth? You see, their job is not just to try to convict. Their job as prosecutors is to make sure the innocent go free also.”
Yet another instance where the prosecutors in the Simpson case gave the impression to the jury that it was they who were trying to suppress evidence, even though
outside
the presence of the jury it was the defense, of course, in motion after motion, who tried to keep out almost all the physical evidence in the case, such as all the blood, hair, and fiber evidence found at Simpson’s Rockingham estate. As Denise Brown, Nicole’s sister, so aptly put it: “If he’s innocent, why are they trying to keep out all the evidence?” But in front of the jury, where it counted, time and time again, by their abject incompetence, the prosecutors conveyed to the jury that they were trying to keep the jury from hearing relevant evidence.
Witnesses like Heidstra should have been called by the prosecution to preempt the defense, since the prosecutors knew that, despite some testimony from Heidstra that might hurt the defense (see discussion in next chapter), there was at least a fifty-fifty chance that the defense would call Heidstra if the prosecution didn’t. And there is really no huge problem with such a witness. Witnesses give conflicting testimony all the time. Five people see an auto accident and each one gives a slightly (sometimes substantially) different version. You call a Heidstra and later argue and point out to the jury that although there’s a diversity of opinion as to when the murders occurred, the decided weight of the testimony, as well as all of the surrounding circumstantial evidence, indicates the murders happened around 10:15 to 10:20 p.m. And you don’t lock yourself unnecessarily into this precise time, as the prosecutors did at the beginning of the trial, forcing them to retreat, before the jury’s eyes, as the defense called witnesses like Heidstra. Calling Heidstra as a prosecution witness would hardly have hurt the prosecution at all. But as a witness for the defense, his testimony was damaging to the prosecution.
In the same vein, with respect to the prosecution’s very imprudent decision not to call to the witness stand the deputy coroner who conducted the autopsies, Cochran argued: “Nobody around here can remember any time that the coroner who did the autopsy, the actual autopsy on a body, wasn’t called by the prosecutor. Why do you think they didn’t call the coroner? They spent eight days trashing their own coroner and they didn’t call him. Why is that in this search for truth? [I’ll tell you the answer to your question, Johnnie. It’s not the sinister motive you’re implying to this jury. The answer is pure and simple prosecutorial incompetence, the shocking kind.] They call somebody else who’s not even there at the autopsies…. It’s basic that you’ve got to call the coroner. But they did a number of things in this case, ladies and gentlemen, that had never been seen before.”
Since Cochran was facing two prosecutors who, by and large, were very weak at the art of argumentation, he was able to make loose and ill-advised remarks that left him vulnerable, and still get by with it. Take Simpson’s refusal to testify in his own defense. Prosecutors used to comment routinely to the jury during their argument that a defendant’s silence was evidence of his guilt. But in 1964, the United States Supreme Court (
Malloy v. Hogan
378 U.S. 1) ruled that if a defendant exercised his right against self-incrimination under the Fifth Amendment to the United States Constitution and refused to testify, he was “to suffer no penalty…for such silence.” The following year, the Court, in
Griffin v. California
(380 U.S. 609), held that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” The rationale? To comment on the defendant’s silence “cuts down on the [Fifth Amendment] privilege [against self incrimination] by making its assertion costly,” i.e., if, indeed, the defendant has such a privilege, he should not be penalized for exercising it.