Outrage (36 page)

T
here was one part of Cochran’s argument that may have received more attention than it deserved from the media, his supposedly suggesting “jury nullification” to the Simpson jury; that is, asking the jurors to disregard the evidence and the law in favor of their own view of justice. As the
Wall Street Journal
pointed out (October 4, 1995), this practice of jury nullification “has played an important role at key times in U.S. history…. During colonial times, for instance, jurors used the power to acquit colonial defendants of political crimes against the Crown. In the mid-nineteenth century, Northern jurors kept the tradition alive by acquitting people who harbored runaway slaves, even though the law explicitly made this a crime.” The
Journal
cited some current cases where black juries in big cities may have acquitted black defendants, despite obvious guilt, as evidence that the practice is still alive.

One point should be made off the top. Despite some language in the
Journal
article (and in other newspapers at the time of Cochran’s summation) that jury nullification is a practice “which the U.S. Supreme Court explicitly affirmed one hundred years ago,” no court in this country has ever suggested that a jury has any
right
to disregard the law. Courts have only recognized that the jury does, indeed, have the
power
to do so, which is quite another thing. By analogy, Simpson had the power to murder Nicole and Ron, not the right. And this power of the jury is, as one federal court noted, “an unreviewable and unreversible power to acquit in disregard of the instructions on the law given by the trial judge” because of the Fifth Amendment prohibition against double jeopardy, which forbids trying a person twice for the same crime. Bills introduced in various state legislatures (most recently, in New York by state senator Joseph Galiber in 1991) to give juries the right, not just the power, to disregard the law have invariably been rejected.

At one time, juries did not even have the power, much less the right, to vote the way they wished. In
Wall Street Journal
reporter Steven J. Adler’s well-received book
The Jury
(Times Books—Random House, 1994), he cites the case that gave the jury independence from the government:

bq.

The trial of William Penn and William Mead at the Old Bailey courthouse in London in 1670 marked a turning point in the development of the jury as an independent popular voice. With the jury in the case deadlocked over charges that the defendants had illegally preached in the streets, court officials invaded the jury room to determine which jurors favored acquittal. Finding four, the officials locked them up without food or water. When they refused to convict, they were fined and then imprisoned, as was the custom. But in this case, one of the dissenters, a man named Bushell, took the matter back to court and won a ruling that jurors could no longer be punished for their verdicts. If the judge could compel a jury to find one way or another, wrote Chief Justice Vaughn, ‘then the jury is but a troublesome delay,…and of no use.’

The language Cochran used which the media said constituted a request for jury nullification was when, referring to Fuhrman, he said: “This man could’ve been off the force long ago if they had done their job, but they didn’t…they didn’t have the courage…. That is what I am asking you to do. Stop this cover-up…. If you don’t stop it, then who? Do you think the police department is going to stop it? Do you think the DA’s office is going to stop it…. [I]t has to be stopped by you.” Then later, referring to Fuhrman’s use of racial slurs: “And when you go back in the jury room, some of you may want to say, well, gee, you know, boys will be boys…. That is not acceptable as the conscience of this community if you adopt that attitude…. You are empowered to say we are not going to take that anymore. I’m sure you will do the right thing about that.” And later: “Who then police the police? You police the police. You police them by your verdict. You are the ones to send a message. Nobody else is going to do it in our society…nobody has the courage…. Maybe you are the right people at the right time at the right place to say no more. We are not going to have this.” This is a pitch of Cochran’s to juries which he has fine-tuned during three decades of police brutality lawsuits against law enforcement agencies here in Los Angeles.

Looked at by itself, Cochran’s language does seem to be flirting rather heavily with jury nullification. But it couldn’t have been clearer from the context in which he made the remarks, as well as his entire argument, that he was telling the jury that
the facts and evidence in the Simpson case, and the law applicable thereto, required a not-guilty verdict
. In other words, he coupled traditional jury nullification language with a much heavier dose of, and reliance on, the evidence and law of the case he was trying.

Nevertheless, I think Cochran’s argument was improper, and the prosecutors should immediately have asked Ito (who again, on his own, should have acted) to instruct the jury that any suggestion by Cochran that in reaching their verdict they should be thinking about anything other than the evidence and law in this case (stopping racism, sending a message, etc.) was wrong, and their doing so would be a violation of their oath. Instead, the prosecutors made no objection to Cochran’s argument. All Clark did was tell Ito (during a hearing much later on a defense objection to Clark’s arguing to the jury the ethical obligations of a prosecutor only to prosecute someone he believes is guilty) that “I have never seen a defense attorney get up and ask for jury nullification in this way.”
If she felt he was doing this, why didn’t she object?
And Darden, in his summation, actually lent legitimacy to the jury nullification argument: “You can’t send a message to Fuhrman, you can’t send a message to the
LAPD
, you can’t eradicate racism within the
LAPD
or within the Los Angeles community or within the nation as a whole by delivering a verdict of not guilty in this case,” he argued. In other words, Darden wasn’t telling the jury that it would be wrong for them to try to send a message, just that it would be ineffective, which could have had the same effect as waving a red flag in front of a bull. Darden, of course, made it clear to the jury in other parts of his argument that the jury had a duty to base its verdict on the evidence, and the evidence proved Simpson’s guilt.

O
f the four lawyers who argued for the prosecution and defense, Barry Scheck’s argument was the most structured and organized. It was also the most ridiculous. If one were to believe the Bronx lawyer, all the blood, hair, and fiber evidence in the case against Simpson was either planted by
LAPD
detectives or contaminated by the incompetent police department criminalists who sloppily collected and preserved it. Since Scheck (and Cochran in his argument) at times also suggested that the criminalists themselves may have been a part of the planting or at least the cover-up, and since both he and Cochran also argued that the
LAPD
detectives were incompetent in many ways, they were arguing simultaneously that the same sophisticated conspirators who framed Simpson were also incredible bumblers; he was picking and choosing, trying to have it both ways.

The core of Scheck’s contamination argument was that the LAPD’s Scientific Investigation Division (
SID
) was a cesspool of contamination, a “black hole.” The New York lawyer said that any laboratory has to have the following things: rules and training; quality assurance (proper documentation of how, when, and where the evidence was collected); chain of custody (documentation of what is picked up and who turns it over to whom); and security (preservation of the evidence and protection from tampering). The
LAPD
, per Scheck, was lacking in all of these things to a great degree. So much so, if we are to believe Scheck, that all convictions of criminal defendants in Los Angeles for at least the past ten or fifteen years based on evidence like fingerprints, blood, hair, etc. should automatically be reversed and the defendants set free. To Scheck, just collecting blood from the murder scene was a science mastered by few, and if the slightest thing went wrong, such as temporarily mislabeling a vial, all tests thereafter were invalid. But the defense’s own top forensic scientist, Dr. Henry Lee, testified on cross-examination at the trial that one could even pick up blood on one’s shoe at a crime scene, and if the bloody shoe was given to a criminalist to test for
DNA
, he could easily do it, and the results would be valid.

Scheck argued that once the blood evidence was contaminated in the evidence processing room at
SID
(or before it got there through bacteria, soil, etc.), it didn’t make any difference how many times it was thereafter tested for DNA—at the prosecution’s Cellmark Diagnostics lab in Germantown, Maryland, or the California Department of Justice lab in Berkeley, California—because “garbage in, garbage out,” i.e., the evidence was already contaminated, so all tests thereafter showing it was Simpson’s blood at the murder scene (or Ron’s or Nicole’s blood in the Bronco, etc.) were invalid.

Clark, amazingly, did not respond to Scheck’s allegations in her
rebuttal
argument by pointing out that all the contamination or degradation of blood in the world could not convert someone else’s blood into Simpson’s blood. Neither did Darden in his rebuttal argument. All Clark said on this critical issue was the following: “If you have contamination, what you should expect to find are results that are out of sync, willy-nilly if you will.” This, of course, in no way tells anyone, particularly this jury, that contamination can’t change someone else’s blood into Simpson’s. In fact, by failing to tell the jury explicitly that contamination can’t do this, it still leaves that possibility open.

What makes their failure to argue this absolutely critical, all-important point in their final argument to the jury all the more astonishing and unbelievable is that Clark’s and Darden’s own prosecution witness, Cellmark lab director Robin Cotton, on direct examination by co-prosecutor George “Woody” Clarke, testified during the prosecution’s case-in-chief that contamination
cannot
change someone’s
DNA
into someone else’s. If you don’t argue this point to the jury,
over and over again
, why in the hell are you even bothering to stand up in front of the jury?

In paragraph after paragraph of his argument, Scheck, as suspicious as a cat in a new home, smelled contamination and degradation everywhere.

The outrageous Scheck had another theory up his snake-oil salesman’s sleeve for the jury. In those cases where contamination or degradation didn’t invalidate the results—listen to this, folks—there was
cross
-contamination; that is, he hypothesized that some of the evidence blood had become so degraded because of bacteria, sunlight, moisture, etc. that it had lost all its
DNA
. Thereafter, because of negligence and inadvertence (these were the moments when the
LAPD
personnel were taking a breather from their planting of evidence), the blood that had been removed from Simpson’s arm for comparison purposes and was in a vial was accidentally spilled onto all of the degraded evidence blood, thus being an additional reason why some of the evidence blood came back from the
DNA
laboratories identified as Simpson’s. What evidence did Scheck have that this actually happened? None. Because the
LAPD
crime lab was a “cesspool of contamination,” it
could
have happened, Scheck argued, and that was good enough. He told the jury that “
if
there was cross-contamination,” the results would be invalid.

Clark, in her rebuttal, spent all her time arguing to the jury that nothing happened in the case that would have caused cross-contamination to occur. That was all right, but she failed to go on in her rebuttal (she touched on it in her opening argument,
before
Scheck’s argument) and point out:

“Under the law a jury verdict must be based on the evidence, not possibilities and speculation. But in Mr. Scheck’s world, the mere possibility of cross-contamination, even though there’s not a
speck
of evidence to support it, is the equivalent of proof that it happened. But if
Scheck
doesn’t have a
speck
, ladies and gentlemen, under the law you must reject his argument on cross-contamination. Remember, as Judge Ito will instruct you, we don’t have to prove guilt beyond all
possible
doubt, only beyond a reasonable doubt. His exact words to you on this matter will be: ‘A reasonable doubt is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt.’”

There were two very powerful arguments Clark failed to make with respect to Scheck’s ludicrous theory of cross-contamination. It’s particularly astonishing she never made these arguments in view of how big an issue
DNA
(as well as
EDTA
, a preservative and anti-coagulant added to the test tubes of reference blood) was throughout the whole trial, and the further fact that the prosecution had two
DNA
experts (Harmon and Clarke) working on the case.

A rather remarkable thing happened during the defense summations in this case. Although Cochran and Scheck argued that the Rockingham glove was planted, that Simpson’s blood was planted on the rear gate at Bundy, that Simpson’s and Nicole’s blood was planted on the socks found in Simpson’s bedroom at the foot of his bed, and that the police also planted Simpson’s, Nicole’s, and Ron Goldman’s blood in the Bronco, neither of them argued that the five blood drops at the murder scene, the most incriminating evidence against Simpson in the entire case, were planted. Cochran never even dealt with the issue, only saying, once, that “we have already covered the Bundy blood drops, that Mr. Scheck did such a great job on.” And Scheck didn’t say they were planted, claiming only they had been cross-contaminated with Simpson’s reference blood by negligent and sloppy chemists at the
LAPD
laboratory. Shouldn’t this argument have been made?