In trials where the defendant does not testify, the defense makes every effort to make sure this fact is not spotlighted for the jury. And the prosecution doesn’t even indirectly comment on it at all before the jury, because in the event of a conviction, the comment could constitute reversible error.
Yet in this case, Cochran boldly and brazenly suggested to the jury, as oblique as the implication was,
that Simpson didn’t even have the right
to testify in his defense. He said: “Let me ask each of you a question. Have you ever in your life been falsely accused of something? Ever had to sit there and take it and watch the proceedings and wait and wait and wait, all the while knowing that you didn’t do it?
All you could do
during such a process is to really maintain your dignity; isn’t that correct? Knowing that you were innocent, but maintaining your dignity and remembering always that all you’re left with after a crisis is your conduct.”
When Cochran said that “all you could do” is maintain your dignity, wasn’t he suggesting that Simpson didn’t have the right to do anything else? If that’s all Simpson could do in defending himself from the charges, doesn’t that suggest he didn’t have the right to take the stand and respond to the charges? Is it possible that these jurors may have had that thought enter their minds after Cochran’s remark? Later, Cochran alluded once again, in my opinion, to the fact that perhaps Simpson didn’t have a right to testify in his own defense. He said to the jury: “There is one place you can’t take away somebody’s voice, and that is in the courtroom. If you want to tell the truth, for sixteen [sic] months this man sat over here and heard people talk about him day in and day out, judged him and prejudged him against the American way. What right, how dare they do that?
And he has one day or two days to have somebody stand up for him.”
Again, isn’t Cochran thereby implying that all Simpson could do was have someone stand up for him? That he couldn’t stand up for himself in his own defense?
In any event, all Cochran did by these remarks was leave himself and his client open to an argument by the prosecution (which the prosecutors, in their incompetence, did not make) that “Mr. Cochran suggested to you folks that all Mr. Simpson could do to fight the charges against him was maintain his dignity, and have someone else stand up for him in his defense. That, of course, is 100 percent untrue, as the court will tell you. He also had the right to testify in his defense, and he chose not to.” Note that this comment by the prosecutor would not be asking the jury to draw an inference of guilt from Simpson’s failure to testify. It would simply be clarifying two very misleading statements by Cochran. Normally, even that remark from a prosecutor would not be permitted, since he cannot even make any reference to the defendant’s failure to testify. But here, Cochran very clearly opened the door by making two improper, misleading remarks to the jury which the prosecution could have properly exploited to draw attention to the fact that Simpson, as guilty as sin, was remaining as quiet as a statue to the charges against him.
There were examples after examples of the prosecution’s showing not the slightest instinct for argumentation. When Cochran argued to the jury (concerning the failed glove demonstration), “If it doesn’t fit, you must acquit,” a singsong, childlike rhyme suggested to him in this case by co-counsel Gerald Uelman, don’t you automatically (in addition to all the arguments why the glove didn’t fit) say: “If it doesn’t fit, you must acquit?
Nothing
fits better than
DNA
.
DNA
fits a person to the exclusion of all other people on the face of the earth, better than any glove or any other item of clothing could possibly fit. And Mr. Cochran, with
DNA
tests putting his client’s blood at the murder scene, has the audacity to argue, “If it doesn’t fit, you must acquit”?
Quite apart from this easy, off-the-top-of-your head response to Cochran’s rhyme, there’s virtually no question in my mind that if the prosecution had requested it of Judge Ito, Ito would have told the jury that Cochran’s words were improper and misleading. Although Cochran obviously didn’t mean to suggest that if the gloves didn’t fit, the jury,
as a matter of law
, was required to acquit, this, indeed, is precisely what he told them, and it is hardly a defense to say, “Well, I didn’t really mean what I said.” “If it doesn’t fit, you
must
acquit” is no less an improper argument than if the prosecution had argued to the jury, “If the
DNA
matches, you
must
convict.” With Ito telling the jury that Cochran’s words were improper, as he really would have had no choice but to do if the prosecution had requested it (in fact, Ito, on his own, should have clarified this matter for the jury), Cochran’s rhyme would probably have ended up hurting the defense more than helping it, since the judge, in effect, would be telling the jurors that the fact the gloves didn’t fit didn’t mean as much as the defense wanted them to believe it did. But like docile lambs, the prosecutors neither responded verbally to Cochran’s rhyme nor requested Ito to clarify the matter with the jury. And like trained mynah birds, two jurors after the trial informed the media, “If it doesn’t fit, you must acquit.”
Cochran referred to Detectives Vannatter and Fuhrman as “the twins of deception,” and argued in his summation that the Book of Luke in the Bible says that if a man tells a lie, you can’t trust him on anything else he says. If you have even the slightest ability at the art of argumentation, don’t you, as the prosecutor—since you know Simpson had lied in this case many times—at a minimum argue during your rebuttal:
“Whether or not Detective Fuhrman used a racial slur within the past ten years obviously has no connection at all to the facts of this murder case. So his lie on this personal matter is irrelevant. But Mr. Simpson, Mr. Cochran’s own client,
on the night of the murders in this case
, tells an enormous, blatant lie to the limo driver that he had overslept, just gotten out of the shower, and would be right down, when the limo driver had just seen him enter his home thirty seconds earlier, a lie Mr. Simpson wouldn’t have had any reason to tell if he hadn’t just committed these murders. And Johnnie Cochran has the guts to argue the Book of Luke to you folks?”
When Cochran and Scheck pointed out to the jury that this was a case of circumstantial evidence, that is, no eyewitnesses, and Cochran added smugly, “The prosecution has no shoes, no weapon, no clothes,” I kept waiting for one of the prosecutors to forcefully respond with words to this effect:
“Common sense is going to tell you folks that there rarely are going to be eyewitnesses to a premeditated murder, as these murders clearly were. Someone who premeditates a murder doesn’t go down to Pershing Square here in Los Angeles, get on an orange crate, and with a megaphone announce his plans to the world. In a premeditated murder, as opposed to one committed on the spur of the moment, the killer obviously takes steps to help ensure that no one sees him commit the murder. That is why most premeditated murders are committed, like these ones were, in the dark of night. If, as Mr. Cochran suggests, the prosecution needed eyewitnesses, the murder weapon, and the killer’s shoes and clothing to get a conviction, in effect we’d be telling prospective killers—make sure no one is watching and dispose of the murder weapon and all of your clothing and you’re home free. But it’s not quite that easy, ladies and gentlemen of the jury, and when you folks come back into this courtroom with your verdict of guilty, you’re going to be telling this defendant,
It’s not quite that easy
.”
I
mentioned earlier how Dr. Henry Lee’s credibility had been severely damaged by the testimony of
FBI
agent William Bodziak, yet the jury felt Lee was the most impressive witness at the trial, and although his “something is wrong” testimony was a conclusion of Lee’s about a small piece of evidence in the case, the defense and the jury treated it as if it were a description of the prosecution’s entire case. “In the words of Dr. Lee, something is wrong. Something is terribly wrong with the evidence in this case,” Barry Scheck told the jury in his summation. In fact, “something is wrong” became the anthem and theme of the defense’s final summation, Scheck using the term no less than sixteen times, and Cochran several more. Having knowledge of all this, wouldn’t you think that Clark, in her final, rebuttal argument to the jury, would have forcefully and mockingly pointed out to the jury how worthless the testimony of Dr. Lee was? Particularly when she had all the ammunition she needed to do so?
But she did virtually nothing with Lee in either her opening or her closing arguments. She did not even remind the jury that one of Lee’s “imprints” (that was supposed to be the shoe print of a second assailant) had proved to be from one of the workmen who had laid the cement years ago, and that a second “imprint” was actually “tool marks” made from the laying of the cement. She never uttered one word about these matters. Her entire statement on the shoe print and tool marks left by the workmen, and Lee’s destroyed credibility, was: “Now, Dr. Lee tried to tell us about a second set of shoe prints but I think Mr. Bodziak made it very clear what this was all about.” That’s all, Marcia? Nothing more? Just these couple of words? If you’re not going to recall, summarize, and emphasize Bodziak’s testimony on these points for the jury, and then draw inferences from it, why bother to give a final argument? This is just incredible. A clerk at a department store would have done a better job of handling this issue than Marcia Clark did.
On Lee, don’t you tell the jury something like this?
“How can this man come before you folks posing as the leading forensic scientist in the country and suggest to you, without expressly saying, that a shoe print made in concrete years ago, which he personally saw and photographed, could have been a shoe print belonging to a killer other than the defendant in this case? How dare this man not tell you that this ‘shoe print’ he said he saw and photographed was a permanent indentation in the concrete whose ridges and grooves you can feel with your fingers? How dare this man, who should have been ridden out of town on a rail, try to do this to you folks?
“If we hadn’t had agent Bodziak go back to that walkway and look at, physically touch, and photograph for you that permanent shoe print, we would have never known that Lee’s testimony was one hundred percent wrong. Pardon the pun, but we have ‘concrete’ evidence that something is wrong, terribly wrong, with Dr. Lee to give testimony like this.”
Don’t you make an argument at least similar to this when you have indisputable evidence to support you, and it’s obvious that Dr. Lee is a witness for the defense who can damage your case in a substantial way?
F
rom Johnnie Cochran’s opening statement through his closing argument, he kept telling the jury that in the LAPD’s “obsession to win” it had “rushed to judgment” against Simpson, ignoring any and all evidence that may have pointed away from him in a different direction. The “rush to judgment” argument was another big theme of the defense’s case. I kept waiting for either Marcia Clark or Chris Darden, in their rebuttal arguments, to respond to this, but they didn’t. Not one word. Only in Darden’s opening argument did he even mention the issue, and then very briefly and inadequately. Here’s what he said: “If this is a rush to judgment, why did the police stand out in front of 875 South Bundy that night for a couple of hours doing nothing, as the defense has asserted, doing nothing but waiting for Vannatter and Lange? That is a rush to judgment? This is no rush to judgment. Unfortunately, this is just how things go. Those cops got out there to conduct a murder investigation and that investigation led them to Rockingham. They followed the blood trail.”
Couldn’t one or the other of the prosecutors, in their final, rebuttal arguments, have said something like this?
“As you folks know from your everyday experiences, the evidence—I guess in your private lives you would call it the situation or circumstances—is what leads you in a certain direction. You don’t go to the door to open it for someone unless you hear the doorbell ring or there’s a knock at the door. If you wake up in the morning after an all-night rain and you find a puddle of water on the
kitchen
floor, when you call the roof man you don’t tell him to check for a leak above the
living room
. These things are so obvious it’s silly to even talk about them. But it’s just as obvious in a criminal investigation. You follow the trail of evidence, in this case the trail of blood that leads from the murder scene to Mr. Simpson’s car right up to and inside his home.
“
All
of the evidence in this case led to one person, and one person only, O. J. Simpson. There was no piece of evidence that led to anyone else. Under those circumstances, what were the police supposed to do? Pretend that evidence existed pointing in a different direction toward someone else? When Detective Lange was asked during the trial by Mr. Cochran if the
LAPD
had pursued the possibility that someone else may have killed the victims, as you recall he responded: ‘I had absolutely no other evidence that would point me in any other direction. There was nothing to pursue.’
“If Mr. Cochran is going to make the charge he has, don’t you think with all the police reports he has been provided on this case, and all the reports he undoubtedly has been given by his own defense team’s private investigators, who have been working on this case for over a year, full-time, that he should have told you, ‘Now, take this,’ and then given you some fact or circumstance? ‘Why didn’t the
LAPD
check this out?’ But he couldn’t refer you to even one such fact or circumstance, not one, that pointed in the direction of anyone other than his client being responsible for the brutal murders of Nicole Brown Simpson and Ronald Goldman.
Before we move on, I’d like to make one other observation about Mr. Cochran’s rush to judgment allegation. Even though I don’t believe it, let’s assume, just for the sake of argument, that there
was
a rush to judgment in this case. That the
LAPD
immediately suspected Mr. Simpson and started looking for incriminating evidence against him to the exclusion of everyone else. So what? Whether they rushed to judgment or not, they
still
found, for instance, his blood at the murder scene, not someone else’s. So what’s Mr. Cochran’s point? Does Mr. Simpson’s blood at the murder scene cease to be his blood simply because there was a rush to judgment in finding it? Again, what’s Mr. Cochran’s point?