In 1981, I wrote an article titled “Not Guilty and Innocent—The Problem Children of Reasonable Doubt.” The article dealt with the critical distinction between the terms “not guilty” and “innocent.” (It is nothing short of remarkable that with legal treatises having been written on virtually every point of law imaginable, apparently none had ever been previously published on the subject in America. At least, none is listed in the Index to
Legal Periodicals
, or the
Criminal Justice Periodical Index
.) The genesis of the distinction is in the requirement that guilt must be proved “beyond a reasonable doubt.” But what does that hallowed phrase actually mean?
The doctrine of reasonable doubt is, as Sir Winston Churchill once said of Soviet Russia, “a riddle wrapped in a mystery inside an enigma.” “This elusive and
undefinable
state of mind,” said J. Wigmore, the foremost authority on the law of evidence, in reference to reasonable doubt. “It is coming to be recognized that all attempts to define reasonable doubt tend to obfuscate rather than to clarify the concept,” said E. Morgan, another authority. However, one all-important principle is implicit in the term—namely, that a jury does not have to believe in a defendant’s innocence in order to return a verdict of not guilty.
Even the jury’s belief in his guilt,
if only a moderately held one, should result in a not-guilty verdict. To convict, their belief in his guilt must be
beyond a reasonable doubt
. In federal courts throughout the country, the judge properly instructs the jury that to convict, guilt must be proved beyond a reasonable doubt. Inconsistently, however, in the very same instruction (No. 11.06 of
Federal Criminal Jury Instructions
by Devitt and Blackmar), the judge tells the jury: “You are here to
determine the guilt or innocence of the accused
.” Under existing law, this added instruction should not be given, since it is not the central purpose of a criminal trial to decide the factual question of the defendant’s guilt or innocence. Yet even the U.S. Supreme Court, in case after case, uses this language, continuing to define loosely and erroneously the jury’s function in a criminal trial. Needless to say, far less insightful state, county, and municipal courts throughout the land, as well as authorities on the criminal law, make the same mistake.
In ordinary lay usage, the term “not guilty” is often considered to be synonymous with “innocent.” In American criminal jurisprudence, however, the terms are not synonymous. “Not guilty” is simply a legal finding by the jury that the prosecution has not met its burden of proof, not that the defendant is innocent. While a defendant’s guilt or innocence obviously is the most important
moral
issue at every criminal trial, the ultimate legal issue for the jury to determine is whether or not the prosecution has met its legal burden of proving guilt beyond a reasonable doubt. If the jury does not fully understand this critical distinction, its ability to fulfill its function as the trier of fact will almost necessarily be impaired.
Instead of the correct term “guilty or not guilty,” the incorrect “guilty or innocent” has insidiously crept into the American language and consciousness. Although the precise date and locus of its misconceived birth are not known, it has led a very robust life, shows no signs of aging, and, as I have said, has received the imprimatur of the highest court in the land.
When jurors are deliberating, the media report that they are deciding “the guilt or innocence” of the accused. So, too, in novels, theater, movies, and television. With this constant bombardment, many jurors start out believing that their principal duty is to determine “Did he do it, or did he not do it?” as opposed to “Did the prosecution meet its burden of proof or did it not?” This is not the forum to debate whether guilt or innocence should be the issue at a criminal trial. Many philosophical and societal considerations are involved. But since it is not the issue, as long as juries are told (along with the correct instruction) that it is, thousands of defendants throughout the nation will continue to be tried before juries who are misinstructed on the most fundamental issue at a criminal trial.
Instead of clearly and unequivocally disabusing jurors of their misconception, courts throughout the land repeat the incorrect notion. Along with judges, the great bulk of prosecutors use the phrase “guilt or innocence.” Chris Darden did so in this case. And defense lawyers everywhere, like Cochran, can be heard arguing to juries that the prosecution has not proved guilt beyond a reasonable doubt, and in the next breath stating, “Now, in determining the guilt or innocence of my client, take into consideration…” In fact, the textbook of the Association of Trial Lawyers of America states that “the determination of guilt or innocence is the sole province of the jury, and is the essence of our system.”
So here we had the highest-profile murder case in this nation’s history, and remarkably, the chief lawyer for the defense didn’t even have a solid grasp of the most basic and fundamental issue at a criminal trial—the doctrine of reasonable doubt. Again, he understands it, but not well, because if he did, those words would have never come out of his mouth. His grasp of reasonable doubt, like that of so many lawyers, exists in what Dutch Protestant theologian Willem Visser’t Hooft has described, in a different context, as “a twilight between knowing and not knowing.”
In opening statement, a lawyer can only tell the jury what he expects the evidence will show. He cannot argue, i.e., draw inferences from that evidence. Yet Cochran improperly argued throughout his opening statement. His arguing was so constant, and such a flagrant violation of the rules, and he referred to so many matters that he knew he couldn’t possibly introduce at the trial, that co-prosecutor William Hodgman was forced to object several times. The unfailingly civil and gentlemanly Hodgman told Ito at the bench that “the prosecution has been severely prejudiced. This conduct [by Cochran] is outrageous and unbelievable.” In fact, Hodgman was so upset he was hospitalized with chest pains at the end of the day, and never returned as a trial prosecutor in the case, although continuing to work full-time behind the scenes as a member of the prosecution team.
And Marcia Clark told Ito that Cochran, in his opening statement, had “carefully and cynically weighed the risks and benefits of his misconduct. It is outrageous. It’s disgusting, and it’s appalling to me as an officer of this court.” She said Cochran’s conduct was “egregious and a willful desire to flout the law.” The prosecutors actually asked Ito for a thirty-day delay in the trial because of Cochran’s improper opening statement in referring to the many witnesses whose identity and statements the defense had not provided them. Ito did not grant the request, but, because Cochran’s conduct was so improper, Ito did allow Clark the highly unusual right to reopen her opening statement for five minutes to respond to Cochran’s improper remarks.
W
ith respect to Cochran’s cross-examination at the trial, it was the most rudimentary type imaginable. He could hardly have been more mediocre. Watching him I asked myself how it was possible he could have been a trial lawyer for thirty-two years and not have picked up even the slightest degree of skill at cross-examination. Not only did he appear virtually weaponless as a cross-examiner, but he magnified his lack of expertise by obviously minimal preparation and fumbling, inarticulate questions. He basically limited himself to seeking to elicit from the prosecution witnesses he cross-examined information he had learned was helpful to his side, i.e., cross-examination in an important but very unsophisticated form.
Before getting into Johnnie Cochran’s direct examination, let me digress for a moment to discuss briefly two adjectives that the media used to describe Cochran at this trial, silver-tongued and smooth. There is nothing silver-tongued about Johnnie Cochran, even remotely so. These are just featherbrains in the media who have no respect for the English language, and have been thoughtlessly using this flattering adjective to describe criminal defense attorneys since time immemorial. The first simple metaphor (they don’t really even require this) or colorful word a criminal defense attorney uses qualifies him for this appellation in their minds. They could listen to C-Span and hear much more colorful and powerful oratory and wouldn’t think of using the word “silver-tongued” to describe it. That’s mostly reserved for criminal defense attorneys. I understand.
The other adjective to describe Cochran is “smooth.” Reporters who use this word use it in a complimentary way. What they don’t realize is that in the context of a trial lawyer before a jury, the word “smooth” is pejorative. I say that because “smooth,” though not an exact antonym, suggests the opposite of honest, sincere, the very qualities a trial lawyer seeks to convey to a jury in his quest to garner their trust, his quest for credibility. “Smooth” might be a complimentary term for a riverboat gambler, or even a Bourbon Street hawker, but not for a trial lawyer. I don’t know how the black jurors in front of whom Cochran performed in the Simpson case viewed him, but to me (and this is subjective and I could obviously be wrong), he came across more like a hired gun than a sincere and dedicated advocate. In fact, of all the lawyers for the defense, he came across as the least sincere to me.
As far as Cochran’s direct examination of his own witnesses, Cochran descended below mediocrity into outright incompetence when he actually called several witnesses to the stand whose testimony was more favorable to the prosecution than to the defense.
For example, it was Cochran, not the prosecutors, who put on the only witness (Robert Heidstra) who testified to seeing a
white
utility vehicle, which he said could have been a
Ford Bronco
, rapidly leaving the crime scene area. Cochran did get in return the witness’s testimony that he heard Nicole’s Akita dog barking at around 10:35 p.m., twenty minutes later than a host of prosecution witnesses did, but he admitted he wasn’t sure of the time. In fact, Heidstra conceded on cross-examination that he normally started walking his dogs every evening around 10 p.m., which if he had done so on the night of the murders, would have put his hearing of the Akita barking at around 10:15 p.m., the same time the prosecution witnesses heard the Akita.
Also, Simpson did an exercise video for Playboy Enterprises Inc. just one month before the murders. It was introduced by the prosecution during cross-examination of a defense witness. Since it was
already
clear to the jury from the video that Simpson’s mobility was not 100 percent, Cochran (who was trying to show that Simpson was too infirm to have committed the murders) had very little to gain by calling Richard Walsh, the fitness instructor for the video, to testify to this lack of complete mobility and the fact that Simpson was given a chair and ice packs during the breaks. But on cross-examination by the prosecution, Walsh said the shooting for the video went on for close to fifteen hours, being completed in one day, and Simpson showed remarkable stamina and determination, being able to exert himself vigorously for minutes at a time without letup. He also testified that Simpson was a lot more physically fit than he thought he’d be. As if that weren’t bad enough, he added that while Simpson was shadow-boxing on the tape, he twice made unscripted remarks which many feel implied that he hit his wife. “You just gotta get your space,” Simpson said once, “if you’re working out with the wife, if you know what I mean. You could always blame it on working out.”
The question is, how could any lawyer, even an inexperienced one, call such a witness to the stand? And yet Cochran did exactly that.
Wherever one looked with Cochran, one found an obvious lack of preparation, and preparation is the single most important ingredient of a successful trial lawyer. A key piece of evidence the defense claimed was planted by the
LAPD
to frame Simpson was the bloody socks which were found at the foot of Simpson’s bed by the police on June 13, 1994, the day after the murders. (On the flight to Chicago after the murders, Simpson was observed to be wearing no socks.) Since the socks, with Nicole’s and Simpson’s blood on them, were black, the
LAPD
criminalists at first did not see the blood.
LAPD
criminalist Dennis Fung had testified that he picked the socks up around 4:30 p.m. on June 13. But
LAPD
photographer Willie Ford testified later for the defense that when he videotaped the defendant’s bedroom at 4:12 p.m. (routinely done to protect the city from claims the police stole or damaged anything inside a searched home), he did not see the socks, the defense therefore suggesting that the police must have planted the socks at some time thereafter.
However, Ford acknowledged on cross-examination that Fung instructed him to video the room
after
Fung had completed his search and picked up all items of evidence (which would have included the socks, and hence, either Ford or Fung had been innocently wrong on the time). Nevertheless, the defense still trumpeted Ford as one of its star witnesses for the police conspiracy, frame-up argument, contending that since the socks weren’t there at 4:12 p.m., they had to have been planted there later by the
LAPD
.
There is further proof that the socks weren’t planted in Simpson’s bedroom
after
Ford’s video at 4:12 p.m. Cochran subpoenaed
LAPD
detective Adelberto Luper to testify to the search for evidence at Simpson’s home, and on direct examination by Cochran of his
own
witness, mind you, Luper testified that he saw the socks there earlier in the day, at 12:30 p.m., confirming that the socks were there all the time, not planted there after Ford’s video. When I called Luper on December 26, 1995, to ask him if Cochran had even bothered to interview him, he said he had not. “He just came up to me in the hallway a few minutes before calling me to the stand and told me the three areas he was going to be asking me questions about.”
Cochran’s not bothering to interview most, maybe all, of the prosecution witnesses was bad enough. But not even interviewing his
own
witnesses? I’m confident that if I checked more I’d find that Detective Luper wasn’t the only one. Even in simple drunk-driving or petty-theft cases, in fact in all cases, in preparing for trial you have to interview your witnesses and go over their projected testimony with them, because you obviously have to know what their testimony is going to be, and what they’re capable of testifying to. Here, the lead defense attorney for the “Dream Team” in the “Trial of the Century” is calling his witnesses cold to the stand.