Outrage (32 page)

There are several reasons why virtually all human beings lie, one of the most important of which is that we all do things at one time or another that we are not proud of. And if we are immoral enough to do that which we are not proud of, surely we are capable of the lesser immorality of denying that we did it. (For example, “Yes, it’s true, I did steal that coat, but if they ever ask me about it, I’d never ever lie and deny it” is an obvious absurdity.) So for someone to make the assertion that he never lies is almost the equivalent of saying he never does anything wrong.

And yet even a supposedly profound intellectual like the famous German philosopher Immanuel Kant insisted that all lies were immoral and never permissible, even in situations of imminent peril. Lying is absolutely essential in a civilized society (if we all said to people’s faces what we say behind their backs, society would be impossible), and absolutely necessary in many circumstances. During wartime, Churchill said, “the truth has to be protected by a battalion of lies.” Lying is also sometimes the only moral thing to do. Imagine German SS agents knocking on the door of a residence in Berlin in the late 1930s and inquiring of a young Jew as to the whereabouts of his parents, who are in hiding. Kant would apparently insist that the lad tell the SS the truth. And why would any decent human being, upon being asked by a particularly unattractive girl or boy how he or she looks in a new outfit, not say “Good,” or “Fine,” even if the young person looked awful?

Lying is so common that virtually every runner in a football game and catcher in a baseball game thinks nothing of lying, almost every single time, in front of thousands and, if the game is televised, millions of people. Show me a high school, college, or professional runner who, when tackled, doesn’t try to place the ball a tad farther down the field than it should be. The referee has to move the ball back a couple of inches to the proper place all the time. Show me a catcher in a baseball game who doesn’t automatically pull a ball that just missed the plate back into the strike zone for the benefit of the umpire. Would anyone be silly enough to suggest that if you deceive by your conduct it is okay, but never by your words? That is, it’s okay for the catcher to try to deceive the umpire by moving the gloved ball closer to the plate, but if he were to take it a step further, turn around and tell the umpire the ball was a strike, it would be understandable for the umpire to bark at him: “You lowlife liar, you’re outta this ballgame”? That would be elevating words over conduct in importance, something at odds with what our society has always believed. One of my favorite expressions is, “Your conduct speaks so loudly I can’t hear a word you are saying.” All deception in life, whether in words or conduct, is a lie.

So although not lying, as a basic proposition, is something to aspire to, we all lie, from presidents and cardinals on down. When President Carter, certainly one of the most principled and moral men ever to occupy the Oval Office, told the American people at the start of his presidency, “I will never lie to you,” I said to myself, “Carter just told his first lie.”

Lying, then, is a common, everyday part of life. “Mom, tell him I’m not home.” Yet the myth that a lie is an intrinsically immoral thing persists unchallenged, and because of it, and because the prosecution in the Simpson case took such a naive and sophomoric approach with respect to Fuhrman’s lie, that lie, inherently insignificant, became a major liability to the prosecution’s case, assuming enormous importance.

In every case, but particularly one like the Simpson case, where guilt is so obvious, and the defense’s only defense is smoke, mirrors, and hubris, prosecutors should use their opening argument to paint the defense attorney into so many corners that he is afraid, or at least embarrassed, to stand up. (And in final argument, the words and argument should be so piercing and powerful they should cause defense counsel to slink beneath their table.) I routinely did this in my cases. Why should this case have been any different when there were so many opportunities for the prosecution?

Let me give you one or two examples. The defense in the Simpson case never once flat-out accused the
LAPD
of “framing” Simpson. As we have seen, it was the core of the defense’s entire case, and the defense attorneys certainly very strongly suggested and implied it with virtually every question they asked and every argument they made. The reason they never explicitly said so, of course, was they knew the mere uttering of the words would make them look ridiculous. Somehow, though it is the same thing, saying the police “planted” this or that does not make one sound as absurd as saying the police “framed” Simpson. Can you imagine how the defense would have sounded if they had said: “The evidence shows, and we believe, that Vannatter, Lange, Phillips, and Fuhrman got together and framed Mr. Simpson for these murders”? They would have sounded absurd.

But the defense didn’t have to “sound” absurd. It achieved the very same objective simply by making the accusation by innuendo. What the defense did in this case was not quite the same but nonetheless reminded me somewhat of what defense attorney Gerry Spence did when he defended Lee Harvey Oswald in the twenty-one-hour television docu-trial in London in 1986. (
Time
magazine opined that the trial was “as close to a real trial as the accused killer of John F. Kennedy will probably ever get.”) In his cross-examination of my witnesses and in his summation, he strongly implied to the jury, without expressly charging, that either the
CIA
, the
FBI
, or some other group was behind the assassination of President Kennedy, and had framed his client—“Lee,” as Spence called him. And ever since the assassination and frame-up in 1963, he claimed, there had been a massive cover-up. This is a brief excerpt from my summation in London on this point:

“Why doesn’t Mr. Spence come right out and say it? Why doesn’t he accuse the
CIA
or
FBI
of murdering the president and framing his client for these murders? One thing you can say about Mr. Spence, he’s not a shy man. If he thinks something, he comes right out and says it. I’ll tell you folks why he didn’t say it. Because if he said the
CIA
murdered the president, or the
FBI
murdered the president, it would sound downright silly,” I thundered. “You’d laugh at him. Maybe to yourself, but he knows you’d laugh at him. So he doesn’t utter those words. He tries to get the same benefit by implying these things.”

Walking over to Spence’s counsel table, I said: “He implied to you that there was some nebulous, mysterious, powerful group that murdered the president and framed Lee Harvey Oswald, but he never put this hat here [Spence’s Stetson] on anyone’s head. He kept his hat on this table.

“If, perchance, Mr. Spence isn’t suggesting that the
CIA
,
FBI
, Secret Service, or
KGB
did it, then who is he suggesting
did
do it? Who is he suggesting that the
CIA
and
FBI
have been covering up
for
? The Department of Agriculture? What is Mr. Spence saying? I really don’t know.

“When you stop to analyze it, what Mr. Spence is really saying in his down-home, front-porch way is that ‘I don’t know this, and I don’t know that, but one thing I do know. I know I need help in this case. And I also know that only you people can help me out, you folks. Why should you help me? Well, you know, I’d really appreciate it.’ Isn’t that really the substance of what he said on the issue of conspiracy when he got up in front of you?”

The Simpson prosecutors, in their opening argument, should have said words to this effect to the jury:

“The defense in this case has never flat-out accused Fuhrman and the three other detectives in this case of framing Simpson, because they know if they did, they’d sound ridiculous. Although they’ve strongly suggested that evidence was planted and tampered with, not once have they used the word ‘frame.’
They’ve never explicitly told you folks these detectives framed Simpson for these murders.
But that’s precisely, of course, what they want you to believe. And if I’m wrong, if that’s not what they want you to believe, then I want Mr. Cochran, when he stands up here to address you after me, to tell you this. In other words, we’re going to flush this man out. If he doesn’t want you to believe this, this means Mr. Simpson is guilty, because with his blood at the murder scene along with an atticful of other evidence, the only way he can be innocent is if he was framed. And if Mr. Cochran, when we flush him out, says he doesn’t want you to actually believe this, then let’s end the trial right now with a guilty verdict. If Mr. Cochran gets up and refuses to be flushed out, saying things like ‘maybe this’ or ‘maybe that’ happened, I say maybe,
maybe
. If I had wings, maybe I could fly.

“On the other hand, if he does want you folks to believe there was a frame-up here, and he’s not going to waffle, then I want Mr. Cochran, who’s been accusing, by strong innuendo, the four detectives in this case and several other employees of the
LAPD
, like the criminalists, of framing his client for murder, I want him to step forward like a man, come out of the shadows, stop playing word games, and directly and explicitly and unequivocally say what he and his colleagues have only been implying to you for nine months. Detectives Lange and Vannatter are here right now in this courtroom. And I want Mr. Cochran to say, right in front of them, that he believes they and their colleagues framed Mr. Simpson for these murders. I’m going to be waiting to see what Mr. Cochran does when he addresses you, and I’m sure you folks and everyone else in this courtroom will be, too. And of course, when I talk to you again after Mr. Cochran addresses you, I’ll comment, in no uncertain terms, on what Mr. Cochran has said.”

If Cochran felt he had no choice but to flat-out accuse the
LAPD
of framing his client, I believe he’d necessarily look and sound foolish. In addition, I’d ask, in my rebuttal, that if he truly felt there was a frame-up, why had it taken him over nine months to finally say it, and then only after I forced him to? Of course, if he did not make the flat-out accusation, the damage to the defense’s case would be severe.

The prosecutors, in their opening argument, should have also given Cochran a list of questions, prepared for the jury on exhibits they could refer to, that he could not answer.

“For instance, Mr. Cochran, these folks on the jury and I want you to reconcile three contradictory statements. In your opening statement, you told the jury that Mr. Simpson was practicing his golf at the time of the murders. But Mr. Simpson told the limo driver he was sleeping, and in his statement to the police, which we have all heard in this courtroom, when they asked him everything he had done that evening, all he said was that he was very busy packing and getting ready for his trip to Chicago. He said nothing about playing golf or sleeping. Again, we want you to reconcile these three contradictory statements, and we want you to do so confining yourself to the evidence that came from that witness stand at this trial. When I later address the jury, I’ll of course respond to what you have to say, or comment on the fact that you refused to answer the question.”

Finally, in their opening arguments, since they had almost a whole year to learn (from Cochran’s opening statement, from the defense’s cross-examination of the prosecution’s witnesses, and from the witnesses they, the defense, called) what Cochran’s and Scheck’s arguments had to be, Clark and Darden should have told the jury, in summary form, of course, what the defense was going to argue. (They did very, very little of this.) When you do this it lessens the psychological impact of the defense arguments. To use a trite expression, it takes the wind out of their sails. Defense counsel sound almost silly saying exactly what you said they were going to say.

Incidentally, near the end of my opening argument, I might have left a Bible and a copy of the U.S. Constitution on the lectern, telling the jury: “Mr. Cochran talks about the Bible and the Constitution in all of his cases, and if he decides to do so in this case as well, I just want to help my colleague out.” If, when Cochran got up, he started quoting from the Bible and Constitution, he’d look a little foolish, and if he didn’t, he’d have to do without a lot of the emotional underpinnings of his argument.

I
’ve already indicated how Simpson’s statement to the police about bleeding on the night of the murders was, alone, enough to convict him. The prosecutors, not introducing that statement, focused mainly in summation on Dr. Baden’s testimony concerning Simpson’s cutting himself on the night of the murders, and because of it, they were terribly restricted. On tape, Simpson said he had no idea how he cut himself. Because this is highly improbable, it shows a consciousness of guilt on his part. Simpson told Baden, on the other hand, that he received a small cut when he went out to his Bronco, according to Baden’s testimony, “to retrieve his phone or some material from the Bronco…He had gone to the Bronco to get something and may have somehow cut himself while getting stuff, stuff from the Bronco to bring with him to Chicago.” Note that what Simpson told Baden does not indicate a consciousness of guilt.

The second big weakness of the prosecution’s relying on Baden’s testimony for Simpson’s cut is that Simpson only told Baden he cut himself and he saw “some blood” on his finger, not that he was dripping blood anywhere, whereas in the statement he gave the police, he
admits
to dripping blood in his car, home, and on the driveway. Without Simpson’s admission on the tape-recorded statement, the prosecution could only argue to the jury that the police said they saw Simpson’s blood in his car and home and on the driveway before he returned from Chicago. So the jury had the LAPD’s word for this,
not Simpson’s
.

Marcia Clark, then, because of the prosecution’s self-inflicted wound, was substantially handicapped in arguing the single most incriminating piece of evidence against Simpson in the entire case. (Normally, the statement would have been the second most important piece of evidence, behind the
DNA
evidence putting Simpson’s blood at the murder scene, which is absolutely conclusive evidence of guilt. But since we know the jury bought into the frame-up theory and the contamination-of-blood theory, Simpson’s own very incriminating words to the police would have stood head and shoulders above all the other evidence of guilt.)