Outrage (38 page)

I can’t tell you how bad this is. This is all proof that Clark never went over her summation
even once
. If she had, how was it possible she could have said even one, much less all, of these things to the jury? Unless we want to believe something equally bad, that she was aware she didn’t have certain information nailed down and made no effort to get it herself or have one of her colleagues get it for her.

It was obvious that the defense attorneys, particularly Scheck, had put more effort and preparation into their summations than the two prosecutors had. And, of course, if the prosecutors didn’t even spend enough time to bother confirming what they were saying to the jury, they didn’t even begin to spend enough time preparing a powerful argument to the jury with irresistible inferences of guilt. Is it right that the lawyers representing a killer who deserves to be punished are working harder than those representing the victims?

Although both Clark and Darden gave embarrassingly bad rebuttal arguments, most of the talking heads and legal experts were very impressed. Remarkably, one of the former DAs who was a network commentator opined that Clark had given a “brilliant rebuttal.” It was. To him. And a law school professor gave Clark’s rebuttal an A+ for presentation, B+ for strategy, and B+ for impact. The professor gave Darden an A for presentation, an A© for strategy, and an A© for impact. In other words, both Clark and Darden were about as good as you can get.

The reality is that the two prosecutors could have hardly been any worse.
New York Times
reporter David Margolick was one of the very few who sensibly reported what had occurred. Clark, he said, was “largely listless, and clearly exhausted.” (Margolick probably had no way of knowing that Clark had been up nearly all night.) He goes on to say that “at times Clark seemed like a student with too little time in which to answer too many test questions, who opted for the short true or false rather than the more important essays. At other times she had the very air she attributed to Mr. Simpson following the killings, pressed and frantic. Her task was complicated because of her obvious exhaustion. Ms. Clark sighed frequently, occasionally rubbed her eyes, forgot facts, reached for words and tripped over phrases.”

And Margolick was for the most part just talking about Clark’s terrible delivery. Substantively speaking, she was appreciably worse.

A
big error both prosecutors made in their rebuttal arguments—one that the overwhelming majority of prosecutors make—is that for the most part they confined their closing argument to merely answering (rebutting) the defense arguments. But if you do that, your argument is almost necessarily
defensive
in nature, and the golden opportunity the law gives the prosecution to end its case on a powerful, affirmative note is almost converted into a negative, a liability. In rebuttal, the prosecutor can only discuss evidence which the defense has spoken about, or evidence which rebuts what the defense has spoken about. But neither Clark nor Darden apparently know that rebuttal does not have to be a restrictive summation at all. After the prosecutor has responded to and rebutted all the defense allegations, he has the opportunity to argue his entire case all over again. All he has to do is quote the defense attorney’s inevitable assertion that the prosecution did not offer sufficient evidence to prove guilt beyond a reasonable doubt. This legally gives the prosecutor, in rebutting this contention, the right to cite all the evidence of guilt again. (However, in rebuttal, although the evidence itself is set forth more briefly, the prosecutor should draw new or expanded inferences of guilt from the evidence.)

Here, both Darden and Clark, like inexperienced prosecutors, spent 90 to 95 percent of their closing arguments responding to the defense allegations, thereby coming across as defensive and permitting the defense to determine the prosecutors’ agenda in their final appeal to the jury. Clark was at her best when she finally, in the very closing moments of her final address, briefly went over with the jury what she called “unrefuted evidence” of Simpson’s guilt. Though she did not draw inferences of guilt from these items, they were the kind that bespeak guilt by themselves, e.g., “between 9:36 and 10:53 [on the night of the murders], the defendant’s whereabouts are unaccounted for” “Alan Park buzzed the intercom at Rockingham at 10:40, at 10:43, and at 10:49. There was no response” “The [bloody] shoe prints at Bundy were from a size-12 Bruno Magli shoe…the defendant wears a size-12 shoe,” etc.

And I felt Clark ended her summation effectively by playing for the jury a compilation of Nicole’s 1989 and 1993 911 calls where she is heard being in terror of Simpson, and crying out for help. While the tapes were being played, the prosecution flashed slides of a bruised and battered Nicole on the courtroom screen. Clark argued: “I think the thing that perhaps was so chilling about her voice [on the tapes] is that sound of resignation, inevitability. She knew she was going to die. And Ron, he speaks to you by his struggling so valiantly. He forced his murderer to leave evidence behind that you might not ordinarily have. They both are telling you who did it with their hair, their clothes, their bodies, their blood. He did it. Mr. Simpson. Orenthal Simpson. He did it.”

It was moving and eloquent. But it was far too little and far too late.

It was difficult for Darden to be effective. Because he spent so little time preparing his rebuttal, his summation consumed only forty-seven pages of transcript. I’ve already pointed out that in his opening argument a few days earlier, Darden had very unwisely told the jury that on the issue of whether Simpson was guilty or not guilty, “the decision is yours, and I’m glad that it is not mine,” thereby implying that it’s a close, tough case (unbelievably—there’s no other adverb that comes to mind—this is almost conceding, as I said earlier, that it’s a
reasonable doubt
case), the very opposite of what a prosecutor should be conveying to the jury. But apparently not one of his twenty-four colleagues on the case brought this fact to his attention, nor did he apparently realize how inadvisable such a remark was himself, because in his closing argument two days later, he made it even worse, expressly telling the jury: “You’ve got a tough job, a very tough job. I don’t envy you in that regard.” You don’t even have to be a lawyer to realize what a grave mistake this is.

Darden’s strength in summation was the obvious sincerity with which he spoke. And he is someone who, like Hemingway, can elicit a lot of meaning and a certain amount of power from the simplest of words. But that only takes one so far in summation. There’s got to be substance, a tremendous amount of it, to prevail. And one also has to have common sense. Darden displayed neither in either of his summations.

Take the issue of domestic abuse, which was Darden’s major assigned bailiwick at the trial. Although his remarks in his opening argument about the “shortening fuse” of Simpson leading up to a murderous rage were very interesting and probably right, as I have previously indicated, he was setting up an unnecessary burden for himself and compounding the problem by engaging in obvious speculation to meet it. The moment the words were leaving Darden’s lips, I knew Cochran, in his summation, would have a field day with Darden’s speculations. “When people theorize about short fuses,” Cochran told the jury, “it’s just speculation.” Other references: “Darden’s speculative theories” “Then he [Darden] goes into this kind of make-believe fantasy world” and “Dr. Darden” for Darden’s suggesting that like a psychiatrist, he knew what was on Simpson’s mind.

Darden’s stating
as fact
his speculation that Simpson had a fuse that got shorter and shorter until it exploded was bad enough. But what made his “shortening fuse” argument even less credible to the jury was the following: the dance recital video showing Simpson in a very good mood just hours before the murders (Cochran told the jury: “Mr. Darden could speak a thousand words, and I could show you that video. It puts the lie to this theory about some murderous rage”); and the fact that, around 9:00 p.m., just an hour and fifteen or twenty minutes before the murders, Simpson had a telephone conversation with Dr. Christian Reichart, a chiropractor friend of his, and Reichart testified that Simpson “seemed very jovial.” Darden really got into the wildest of speculations when he told the jury that the reason Simpson was jovial is that he had already made the decision to kill Nicole, and therefore was at peace with himself and happy. Cochran’s response? “Instead of Chris Darden standing here and saying, well, that [Reichart’s testimony] is pretty tough evidence for us to overcome, he says O. J. Simpson was happy because he was going to kill his wife. I don’t think any of you believe that. It flies in the face of everything that is reasonable” and around 9:15 p.m., an hour before the murders, Simpson and Kato Kaelin went to McDonald’s to get a hamburger, something that Cochran again argued flew in the face of Darden’s “shortening fuse” argument. “I suppose if you’re in this jealous rage,” Cochran argued, “if the fuse is running so short, it’s interesting, isn’t it, to stop and go get a hamburger at McDonald’s.”

So Darden’s handling of the domestic abuse issue in his opening argument was ill-advised and fraught with vulnerability. In his rebuttal, however, if it’s possible, he was even worse. Throughout the trial and even before it, many people said, in conversation and on call-in talk shows, that just because Simpson beat Nicole didn’t mean he murdered her. They’d point out that the overwhelming majority of men who do beat their wives do not, in fact, go on to kill them. Knowing this type of remark is out there and hence likely to be in the minds of one or more jurors, don’t you automatically work up an argument to answer this, whether or not Cochran makes this same argument, which you can assume he will?

Cochran, in his summation, surely and predictably downplayed the significance of the domestic violence in the Simpson case, suggesting to the jury that any physical abuse Simpson may have inflicted upon Nicole had no relevance to the murder case, yet this was Darden’s entire response to Cochran on the domestic abuse issue: “The defense sloughed off the testimony and evidence about domestic violence like it didn’t mean anything.
That is because they can’t touch it and they can’t deal with it
.” That’s all? Just one line, in your final address to the jury, to respond to defense attacks on the relevance of the domestic abuse evidence? Try to imagine it. You’ve been on a case for almost a year, and you’re the prosecution’s domestic abuse guy, it’s the main area for you to argue, and you
know
the defense has no choice but to argue that Simpson’s domestic violence doesn’t mean anything. Don’t you think that with a
whole year
to mull it over, you could come up with more to knock down the defense’s position than just these thirteen words: “That is because they can’t touch it and they can’t deal with it”?

In responding to Cochran’s argument that the domestic violence by Simpson against Nicole was not relevant to the murder charges, and just because he hit her doesn’t mean he would murder her, don’t you argue to the jury that although most men who beat their wives may indeed not go on to murder them, that that is looking at the statistics the wrong way? That even without statistics, common sense will tell you that in those cases where husbands have, in fact, murdered their wives, the overwhelming majority have previously physically abused and battered their wives. So certainly, though it is not conclusive, Simpson’s history of physical abuse against Nicole makes it “more likely” that he murdered her. At no time in his opening or closing addresses to the jury did Darden use the “more likely” (or similar language) argument. Instead, though he opted to present a skeletal case of domestic violence and abuse (see earlier discussion), the whole thrust and essence of Darden’s argument to the jury was that what limited evidence he did offer proved that Simpson killed his former wife. In post-trial interviews with the jurors, no part of the prosecution’s case was viewed as weaker by them than the domestic abuse evidence.

To expose the absurdity of Cochran’s argument that Simpson’s prior domestic violence and abuse against Nicole didn’t have any relevance to the murder case, instead of his pitiable thirteen words, couldn’t Darden at least have said something like this?

“Let me give you folks absolute proof that Mr. Simpson’s history of physical and psychological abuse against his wife is very relevant to these murder charges against him. If the evidence had showed that Mr. Simpson and his wife, Nicole, had gotten along wonderfully, that he never once touched her in an offensive way or even yelled at her, does anyone really believe that Mr. Cochran would not have argued to you words to this effect? ‘It’s ridiculous for the prosecution to suggest that Mr. Simpson murdered Nicole Brown. In all their years of marriage, they got along beautifully. Not once did he hit her, slap her, or even push her. He never even raised his voice to her. And suddenly, out of a clear blue sky, he is going to take a knife and stab her viciously to death? That’s crazy, and the prosecution knows it. It doesn’t make any sense.’ Surely, none of you doubt that he would have made that precise argument to you if his client and Nicole had gotten along well during their marriage. There’s the proof, ladies and gentlemen of the jury, that the presence or absence of physical and psychological abuse by Mr. Simpson against Nicole is very relevant to the issue of his guilt for these murders. Since you know Mr. Cochran would have made this argument to you if there had been no physical abuse, and it would have been a valid argument, this is proof of the relevance of the evidence where there
has
been physical abuse.”

But the prosecutors apparently didn’t have it in them to make simple, obvious arguments like this.

I said earlier that it’s possible Darden wasn’t told until a few days before he gave his rebuttal argument that he was going to give it. If that, in fact, is true, is that any excuse for his failure to make the arguments I’ve suggested to rebut what Cochran said? None whatsoever. Firstly, these are automatic arguments that don’t take more than a few moments to think of. Secondly, in Darden’s opening argument he told the jury he knew Cochran was going to make these arguments. After telling them this, he could have gone on and made the above points, as well as many others he should have come up with during the preceding year.