I stumbled awake on September 26, the morning of closing arguments. After splashing water in my face, I caught sight of myself in the mirror. I looked skeletal; the circles under my eyes were the color of eggplants. What’s more, I had a flaming pain in my lower right jaw. I’ve had dental problems all my life and this particular discomfort left no doubt as to its cause: an abscessed tooth. A trip to the dentist was out of the question. You do not call in sick when you are scheduled to give the closing argument in the Trial of the Century.
I almost never rehearse my arguments. Sometimes I’ll read them aloud to a friend. But I don’t memorize them. I don’t want them to sound rehearsed, or insincere. Instead, I’ll commit the main points to memory and speak from the heart. And that is what I did the morning of my summation in the trial of
People v. Orenthal James Simpson
.
“Good morning, ladies and gentlemen,” I greeted them.
“Good morning,” they replied in unison. They were looking more cheerful than usual. I’m sure it was because they knew their ordeal was nearing an end.
Straight out of the gate I wanted to make good on my obligation to tell the jury what I thought of Mark Fuhrman. It was part of the pact I’d made with myself the day before I’d interviewed him back in March. If I didn’t believe his testimony, I would tell the jury that. And so I did.
“It would be completely understandable,” I told them, “if you were to feel angry and disgusted with Mark Fuhrman. As we all are… Did he lie when he testified here in this courtroom saying that he did not use racial epithets in the last ten years? Yes. Is he a racist? Yes. Is he the worst [the] LAPD has to offer? Yes…
“But the fact that Mark Fuhrman is a racist and lied about it on the witness stand does not mean that we haven’t proven the defendant guilty beyond a reasonable doubt.”
Then I fulfilled the second part of the pact. I told the jury what Mark Fuhrman had done right. I showed them how impossible it would have been for him to plant evidence—which was, after all, the only thing about Mark Fuhrman that mattered to the case.
Then, for the last time, I walked that jury right through what had happened the night of June 12, 1994.
“The defendant came back from Bundy in a hurry. Ron Goldman upset his plans and things took a little longer than anticipated. He ran back behind the house, that dark, narrow south pathway—you all saw it. You were there in daytime. But imagine how dark it is at night—that dark, narrow south pathway, thinking he could get rid of the glove, the knife, in that dirt area in the back…
“But he was in a hurry. He was moving quickly down a dark narrow pathway overhung with trees, strewn with leaves, and in his haste he ran right into that air conditioner… . And [that] caused him to fall against the wall, making the wall of Kato’s room shake… . And it was just as simple as that. Simple common sense tells you that the thumping, the glove and the defendant’s appearance on the driveway almost immediately thereafter are all part of one set of events, all connected in time and space. You don’t need science to tell you that; you just need reason and logic.”
I produced the time line showing the clear connection between the thumps and Simpson’s appearance. Johnnie objected, claiming that there had been no testimony to establish that Park had seen Simpson just two minutes after the thumps, but he was promptly and properly overruled. The evidence had shown just that.
“Now, let me ask you this,” I continued. “Why didn’t the defendant let Allan Park drive into the driveway? Why leave him sitting out there at the gate? Why make him wait outside? Because the defendant was frazzled, ladies and gentlemen, he was hurried, and he needed to buy some time. Time to wash himself up, wash off the blood, change the clothes, and to compose himself to appear normal, to appear business as usual… . But there are certain things… that tell you that it most certainly was not
business as usual
on the night of June twelfth after he murdered Ron and Nicole… .”
There was Simpson’s forgetting to set the house alarm after Kato told him about the thumping. Simpson’s lying to Allan Park about having overslept. Simpson’s leaving blood in the bathroom and in the foyer, leaving his socks on the floor. (We had heard testimony that Simpson was a compulsively tidy man.)
It was definitely not business as usual, I told the jury, when Simpson had complained of being hot and sweaty on a cool night. Unlike the other passengers on the red-eye, he didn’t sleep, even though he’d been up at six A.M. for an early golf game. One passenger noticed he wore no socks.
I spent quite a bit of time talking about the cuts on the defendant’s left hand. Here, I told the jury, we have the defendant cutting his left hand on the very night of his wife’s stabbing. A cut on the
left
hand—which happened to be the hand that the killer cut. “That,” I pointed out, was “an alarming coincidence.”
If it was true that O. J. Simpson cut his hand on a broken glass in Chicago, why was there no blood on the glass? Why was there no blood in the sink?
“It shows an effort to conceal a wound that he knows will be highly incriminating. This act shows consciousness of guilt… .”
I ridiculed the defense’s theory that evidence had been contaminated. Remember the compelling testimony of Dr. Robin Cotton, I urged. “When DNA degrades… it doesn’t turn into someone else’s type. You get no result.” You don’t get a set of results that all point to one suspect. Only one person in 57
billion
could have left that blood at Bundy. That’s about as absolute as you can get.
“The wealth of evidence in this case is simply overwhelming,” I said, winding to a close. “If we only had the Bundy blood trail that matched the defendant, it would be enough proof to find him guilty beyond a reasonable doubt. If we only had Nicole Brown’s blood on his socks, that would be enough to prove him guilty beyond a reasonable doubt. If we only had Ron Goldman’s blood in his Bronco, that would be enough to prove him guilty beyond a reasonable doubt… . But we have all that and much more.”
I had spoken for six hours. I returned unsteadily to my seat. I was dizzy. My jaw ached.
Chris wrote a note and pushed it over to me. “That was brilliant.”
I looked back at him and smiled. It was the most warmth we had shared in weeks.
Ito had decreed that during summations we would go into evening sessions, so it was nearly seven o’clock before Chris rose to speak. If he’d been drained by the strain of waiting, he didn’t show it. Very calmly, dramatically, he pointed a finger at the defendant.
“The killing was personal,” he told the jury. “You look at the domestic violence, the manner of the killing, the physical evidence, the history of abuse and their relationship, the intimidation, the stalking. You look at it and it all points to him. It all points to him.”
Once again, he traced the violence between the Simpsons from 1985 through 1989, and likened it to a burning fuse. “We submit to you that the hand that left [an] imprint [on Nicole’s] neck five years ago is the same hand that cut that same throat… on June twelfth, 1994. It was the defendant. It was the defendant then. It’s the defendant now.”
Chris had done good work during hours of closed-door sessions with Scott Gordon and Gavin de Becker. His message and delivery were powerfully sincere. Now, as I watched him, I was reminded of why I’d brought him on board in the first place. Chris Darden was smart; he was tough; and, above all, he was principled. I remembered why I’d been proud to call him my partner.
Over the past nine months, I’d been annoyed repeatedly by the transparent—and, in my opinion, amoral—ploys on the part of the defense to manipulate the jury. Johnnie Cochran had come in for a fair share of my anger. And yet my harsh feelings toward him were always tempered by the realization that for most of his career Johnnie had actually stood for something. He’d seen young black men shaken down and roughed up by cops and he’d felt a righteous outrage. He’d dedicated his career to waking the system up and making it play fair. Crying “racism” in virtually every case where he had a black defendant was his stock-in-trade. It was often disingenuous. But you could argue that it was done in the service of principle.
When on September 27 Johnnie rose to give a summation that would last for parts of two days, he cast principle to the wind.
After complimenting the twelve for being a “truly marvelous jury,” he bestowed upon them the blessing in absentia of Abraham Lincoln who’d proclaimed that “service is the highest act of citizenship.” He then invoked Frederick Douglass, exalting the ideal of “no white, no black, but common country, common citizenship, equal rights, and a common destiny.”
Having intoned those lofty sentiments, Johnnie launched into a harangue of hatred against the “messengers” of the state. He flew at Fuhrman’s throat, labeling him a “genocidal racist”—one who had lain in wait nine years for an opportunity to frame O. J. Simpson. Then, through the alchemy of rhetoric, Johnnie fused Fuhrman and Vannatter. They became, progressively, the “Twins of Deception,” the “Twin Demons of Evil,” and finally the “Twin Devils of Deception.
“There was another man, not too long ago, who had those same views, who wanted to burn people,” Johnnie said. “This man, this scourge, became one of the worst people in the history of the world. Adolf Hitler.”
Hitler?
I was nearly breathless with outrage. When Johnnie took the floor that morning, could he really have intended to say these things?
(I later learned this was no heat-of-the-moment excess. This atrocity had been scripted for Johnnie by a fellow defense attorney who was informally assisting the Dream Team. The ghostwriter, I was appalled to discover, was Jewish.)
To have been driven to this excess, Johnnie had to feel desperate. He and his whole crew, in fact, had to be scared to death that the jury might, just for one moment, come to their senses and listen to the evidence. If they did, of course, they would have no choice but to convict. Instead, Johnnie showed them a face-saving detour around the truth. A shortcut that would leave them with the illusion that they were upholding justice.
“Your verdict,” he told that mostly African-American jury, “will go far beyond the walls of [this courtroom]. Your verdict talks about justice in America and it talks about the police and whether they should be above the law… . Maybe that’s why you were selected. There’s [someone] in your background… that helps you understand that this is wrong… . Maybe you’re the right people, at the right time, at the right place to say, ‘No more—we’re not going to have this.’ “
Johnnie was asking for the jury to deliver a big “Screw you.” It’s called “jury nullification.” It’s not legal. It’s not allowed. But it’s not necessarily evil. Jury nullification can sometimes serve a greater good. The example most often given is that of Northern juries who, during the days before the Civil War, refused to sentence fugitive slaves to death. Jurors on these cases often acted with courage, flying in the face of bad law by voting to acquit.
But there was no such exalted legal or social issue at stake here. Johnnie Cochran was exhorting this jury to turn its back on perfectly good laws in order to free his client. And who was his client? Not some fugitive from oppression. His client was a homicidal narcissist, a man who, for the entire span of his overrated career, stood for nothing but his own self-aggrandizement. His client was a man who lived by no creed except to pursue his own infantile impulses. His client was a black man who had done nothing to further the welfare of his black brothers and black sisters and had, in fact, turned his back on them.
This put me in a bind. If I objected, it would look to the jury—at least
this
jury—like the prosecution was trying to stifle a plea for justice. And that impression would only be reinforced if my objection was sustained. (Later, out of the presence of the jury, I did protest the call for nullification.) The fact of the matter, however, is that it’s the job of the judge in a situation like this to step in and object on his own motion. His is the only action powerful enough to scotch such a plea. But Ito stood passively by while Johnnie turned that jury into a mob.
And I thought,
Shouldn’t your ideals, Johnnie, have brought you to a better place than this?
I also thought,
My jaw is killing me, and I’m about to pass out
.
Johnnie spoke for two days, followed by Barry Scheck. Upstairs in our office, a platoon of D.A.s and law clerks remained stationed at television sets, taking notes. I’d given orders that I wanted a complete inventory of every distortion, misrepresentation, half-truth, and outright lie that came out of the defense’s performance.
I had intended to oversee the business of parceling out the list for rebuttal after we broke for the day. But by the time I got off the elevator on the eighteenth floor, I was beyond coherent thought. The pain radiating through my skull was blinding.
Hank Goldberg pulled me aside.
“Marcia,” he said, “maybe we should ask Ito for a continuance. I think the fact that our lead prosecutor needs dental surgery is plenty good cause.”
Hank, I knew, was worried about me. I’m also sure he was concerned about what kind of performance I’d put in during rebuttal the next day. But I knew we couldn’t hold off. I didn’t want the jury back there cogitating on the swill they’d just heard from Cochran and Scheck.
I had to get rid of this problem fast. The mirror in the women’s restroom showed an angry, inflamed lump on my lower gum. For a moment I even considered trying to lance it myself with a needle. Cheri was appalled.
“Who do you think you are?” she screeched. “Gordon-fucking-Liddy?”
Cheri quickly found a dentist who’d see me right away. Then she and Scott bundled me into her car and drove me to West Hollywood. The dentist and an anesthesiologist were waiting for us. The dentist, a very sweet young guy in his thirties, looked at me and deadpanned, “Don’t you know you can’t perform surgery without a license, Ms. Clark?”
“I can’t be knocked out,” I told him. “I’ve got to go back to work.”
“Don’t worry about it,” he reassured me. “You’ll just feel good.”