Outrage (66 page)

Simpson told limousine driver he was sleeping (around time of murders):
If Cochran, before he gave his opening statement, hadn’t even bothered to read the preliminary examination testimony of Alan Park, the limousine driver, didn’t he even know that his own co-counsel, Robert Shapiro, had given this alibi (of Simpson’s sleeping at the time of the murders) to the media shortly after Simpson’s arrest?

Cochran doesn’t have firm grasp of doctrine of reasonable doubt:
Fortunately for Cochran, in his final summation his co-counsel Robert Blasier furnished him with a decent chart of his on reasonable doubt that most likely helped to educate him on the doctrine.

Article titled “Not Guilty and Innocent—The Problem Children of Reasonable Doubt”:
Published in
Mississippi College Law Review
, Jackson, Mississippi, and
Criminal Justice Journal
, Western State University School of Law in San Diego, California.

U.S. Supreme Court misstates main issue at criminal trial:
E.g., Chief Justice William H. Rehnquist, in
Arizona v. Fulminante
, 111 S. Ct. 1246 (1991): “The central purpose of the criminal trial is to decide the factual question of the defendant’s
guilt or innocence.” Jackson v. Denno
, 378 U.S. 368 (1964): “There must be a new trial on
guilt or innocence.”

State courts misstate main issue at criminal trial:
E.g., Texas Criminal Pattern Jury Charges, Section 0.05: “Your sole duty is to
determine the guilt or innocence of the defendant.”

If the prosecution had introduced the slow-speed chase of Simpson, Judge Ito would have given the jury this instruction: “The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his
guilt or innocence.”
Both the Texas and the California jury instructions, of course, are wrong.

Legal authorities misstate main issue at criminal trial:
See
Perkins on Criminal Law
: “Criminal procedure is the formal machinery established to enforce the criminal law. It includes (1) accusation of a crime; (2)
determination of guilt or innocence
; and (3) disposition of those convicted.”

“…and is the essence of our system”:
When a long piece about my article appeared in
The National Law Journal
of March 1, 1982, a staffer from the
Journal
contacted Judge Edward J. Devitt (Chief Judge, United States District Court for the District of Columbia), the horse’s mouth, for his comment on my article. After reading it, Devitt surprisingly told the
Journal
he didn’t use the phrase “guilt or innocence” in his own courtroom. (The judge uses the phrase in no fewer than 10 instructions in his own book, which is cheerfully parroted by federal judges throughout the country.)

“This conduct [by Cochran] is outrageous and unbelievable”:
Although Cochran’s opening statement could not have been more improper, and the prosecutors were 100% in the right in their objections, a Harvard Law School professor (not Dershowitz) serving as a trial analyst for the
Los Angeles Times
said that Cochran had presented an “honest” defense of Simpson, and the prosecution, in its objections, came off as “whiny, disruptive, and petty.” And this professor isn’t just any professor at Harvard, which would be bad enough. He’s the director of the Criminal Justice Institute at Harvard Law School, considered by many the nation’s leading law school.

Because socks were black,
LAPD
criminalists did not see blood on them at first:
Even defense expert Herbert MacDonnell acknowledged the difficulty of seeing blood on the socks. When Marcia Clark asked him, on cross-examination, “And you will agree, will you not, that the observation of blood on those socks was a difficult one in view of the dark color of the fabric?” he replied, “Not when you’ve got good high-intensity illumination. It would be difficult in this room, yes.”

It wasn’t until August 4, 1994, when they conducted their first chemical examination of the socks, that the
LAPD
criminalists noticed the blood. The reactive agent phenolphthalein was applied to the socks, and the presence of blood was determined. Subsequent
DNA
tests showed that Nicole’s and Simpson’s blood was on one sock, and only Nicole’s on the other. There were many small bloodstains on the socks. The likelihood of one of the stains coming from any person other than Nicole was found to be one out of 6.8 billion. The likelihood of one of the stains of Simpson’s blood coming from any person other than Simpson was found to be one out of 57 billion.

“…photos of all four cuts and seven abrasions”:
It should be noted that for all the prosecution evidence Shapiro elicited from Huizenga just to get out the morsel that Simpson had severe arthritis, essentially the same fact could have been introduced to the jury through the testimony of some doctor who might have examined Simpson a few weeks or months before the murders, or by having Simpson examined at a time after the murders when most of his cuts and bruises had healed.

“…the palest ink is better than the best memory.”:
As Hamlet says: “The readiness is all.” During complex murder trials I try, my yellow-pad sheets of paper, covering every aspect of the trial (even case law authority to overcome anticipated objections, and optional lines of follow-up questions dependent on how a witness on cross-examination answers a particular question), may rise to a height in excess of one foot. Although the clear trend in the legal profession is toward fewer and fewer notes on direct examination, cross-examination, and final summation (so recommend instructors in many law schools and at trial lawyer seminars), I do the opposite, almost to an obsessive, perhaps even unnecessary extreme. But I believe in the adage that the war is won before the first battle is fought, and thus far in my career I have been able to orchestrate most of the trial
on paper
before ever entering the courtroom. Arguments, counterarguments, questions, objections—the whole gamut takes place on my yellow pad before the trial even starts. My objective, of course, is for the trial to be merely the acting out of the scenario or script I’ve already written. Granted, unusual things happen during a trial, but if I’ve done my homework, even many of these occurrences can be anticipated and prepared for. In my unremitting quest to be completely ready for trial, I find that in effect
I try the case against myself
.

Reducing what’s in one’s mind to writing is very tedious and time-consuming, of course. In fact, working on my yellow pad is the hardest part of trying a case for me. But in my opinion, it is the only way to try a
complex
lawsuit, and the only way to make a superior presentation of my case as opposed to a good or merely adequate one.

For instance, in preparing my cross-examination, I might know, in my mind, what point I want to make, but it might take me a half hour of sweat on my yellow pad to work out the very best way of establishing this one point on cross. Before I ask my key question, I might decide I have to ask ten preliminary questions, and in a particular sequence. Some of these preliminary questions I may rewrite three or four times, because when I examine them closely I may see that the witness might be able to discern the direction in which I am taking him.

Likewise, in preparing my final summation, I might know what point I want to make, but when I try to articulate it on my yellow pad, oftentimes my pencil comes to a stop. It’s at this moment that I realize I didn’t quite understand my point as well as I thought I did, or even if I did, I certainly realize I was unable to extemporaneously articulate the point with the power and clarity I want.

When I talk about reducing everything to writing, I’m not suggesting, for example, that on cross-examination a lawyer should read his questions. That would be very amateurish and reduce his effectiveness. But if one’s questions have been written down, you can review them over and over to the point where they are so firmly in your mind that when you commence your cross-examination you can stand up, leave your note pad, and fire your questions at the witness.

The standard explanation of lawyers who religiously avoid the pain and agony of the yellow pad is that if a lawyer does all that preparation and has everything written down, he can’t be flexible, and can’t think on his feet when something not covered by his notes occurs. If that’s not a classic
non sequitur
, I don’t know what is. Who says that just because you’re prepared in writing you can’t also be flexible? Is instant improvisation and flexibility the domain only of those who are unprepared?

I have found that many ideas, thoughts and concepts simply do not lend themselves to easy articulation. But they can be mastered if one invests the necessary time. Perhaps the most obvious danger of not reducing virtually everything to a yellow pad is that almost invariably during cross-examination or final summation in a complex case, since a lawyer has virtually no time in court to pause and cogitate, he is simply going to omit many points, some of which may very well have been crucial to his client’s cause. How many lawyers walk out of court every day muttering, “Gee, I forgot to ask this question, I forgot to argue that point”? When every point a lawyer wants to make is on his yellow pad, this will not happen, of course.

In my opinion, for whatever it’s worth, the vast majority of lawyers trying cases today have grossly inadequate notes, and therefore are not adequately prepared. There are hundreds of pieces of information in their heads, but because they are human beings, not computers, of necessity the information is disorganized and undigested, and a dangerously high percentage of it is ineffectively presented when it leaves the lawyer’s lips in court. The sequence should not be from the lawyer’s mind to the jury. It should be from his mind to the yellow pad—for organization, digestion, polishing, and review—and only then to the jury.

“…a great career in the law”:
Bailey’s biggest contribution, and it was major, to the defense victory in this case was not his cross-examination of Fuhrman, which achieved nothing that most other lawyers could not have. Rather, it was his successful argument to Judge Ito (at a time when Ito was wavering) to allow the defense to cross-examine Fuhrman on the racial issue. Bailey’s argument, though legally flawed and misleading (as opposed to prosecutor Cheri Lewis’s, which was legally sound) was nonetheless persuasively delivered. It was Bailey’s most important contribution to the defense during the trial.

“…what human being can possibly convince us of this absurdity?”:
Now I realize the Reverend Billy Graham, who has spoken to more people about God, Jesus, and Christianity than any other human in history, has said he even knows the precise dimensions of heaven (“sixteen hundred square miles,” the Reverend Billy has said). But though Billy Graham, as opposed to so many other preachers, has led an honorable life, and has probably helped millions through his ministry, can any logical person take his preaching seriously? When a fellow revivalist asked him to come to Princeton Theological Seminary to lay a deeper academic foundation for his preaching, Graham balked. “I don’t have the time, the inclination, or the set of mind to pursue [these deeper questions],” Graham told
Newsweek
in November of 1993. “I found that if I say ‘the Bible says’ and ‘God says,’ I get results.” I’m kind of like you, Billy—result-oriented.

Police frame-ups are very rare, and almost invariably in drug cases:
One of the most publicized cases ever was in Philadelphia. In 1994 and 1995, six white Philadelphia police officers pled guilty to framing fifty-six black people in 1988 and 1989 on drug-trafficking charges. Nearly all the framed victims were active drug dealers who also had past histories and convictions for drug dealing. The illicit conduct involved in many of the frame-ups included stealing drug money, tampering with evidence, falsifying records, perjury, and obstruction of justice.

Police framing blacks is not a part of the black experience:
I called Michael Zinzun, whom I had spoken to on my police brutality article. Zinzun, who is black, is the chairman of the Coalition Against Police Abuse in Los Angeles. He and his group have been monitoring and fighting against police brutality and other types of police misconduct against the minority communities since 1975. His coalition serves as a clearinghouse for these types of cases, documenting on the average of 2,000 per year in the county, for a total of well over 35,000 cases since Zinzun formed the coalition. When I asked Zinzun to break down the allegations of police misconduct for me he said: “It’s about seventy percent excessive force, thirty percent other types of police misconduct, like not advising of rights, verbal abuse, intimidation, not giving (as they’re required to do when asked) their name, badge number, division, and supervisor.”

When I asked him about allegations of the police framing blacks and other members of the minority community, there was a lengthy pause. He then started citing some cases where the police had, for instance, beaten up a black person, then falsified a report accusing the victim of being the aggressor. More than once I explained to him: “Michael, I’m not talking about a situation where the police had done something wrong and were trying to cover it up by lying and accusing the victim. I’m talking about a situation where the police, for whatever reason—such as just not liking the person because he’s black—frame someone they knew was innocent.” Finally he focused in on precisely what I wanted. The only case he could come up with was one over twenty years ago. I already knew about the case, since it had received a good amount of publicity here in Los Angeles. In 1975, two black men were convicted of the murder of a Los Angeles deputy sheriff and sentenced to life imprisonment. In 1992, after many appeals and an investigation by a private detective firm, the Los Angeles County District Attorney’s office (which felt there had been gross misconduct on the part of the investigating officers but did not go so far as to say the defendants were innocent) joined in with the defense counsel for the two defendants, Barry Tarlow, in asking the appellate court to grant a writ of habeas corpus and release the two. The court, in granting the writ, said, “The conduct of the officers in the case was reprehensible.” There was solid evidence they had coerced perjured testimony from witnesses and withheld exculpatory evidence (evidence favorable to the defendants). Each defendant received large settlements from the city. One is back in prison after being convicted of several sexual assaults.