Outrage (50 page)

If there is one person I would have liked to have resurrected from his grave for the Simpson case it would have been the Baltimore sage and iconoclast, H. L. Mencken. Only Mencken, who did not suffer fools gladly and had little patience with his intellectual inferiors, of whom there were many, could have pointed out, with his pungent wit and searing social commentary, the absurdity, silliness, and folly surrounding the Simpson case.

Would I have defended O. J. Simpson?

During my radio and television appearances on the Simpson case, I was frequently asked if I would have represented Simpson. Since I knew he was guilty, I always responded I would not have.

Some have been disturbed by my not wanting to represent anyone charged with murder or any violent crime unless I believe him or her to be innocent or unless there are substantially mitigating circumstances. Isn’t everyone entitled to be represented by an attorney, guilty or innocent? In fact, that’s the idealistic chant often recited by defense attorneys as justification for representing even the most vicious criminals in our society. The concept is unassailable, but idealism is rarely what motivates lawyers who represent guilty defendants. They take the work because trying cases is their livelihood, and they are ambitious to advance their careers. These motivations, while perfectly proper, are clearly not idealistic.

True idealism would be demonstrated in a hypothetical situation such as the following. Suppose a family is brutally murdered in a small town, and none of the five lawyers in town is willing to represent the suspect because the enraged citizens are all convinced of the suspect’s guilt and no lawyer wants to be ostracized in the community for attempting to get the suspect off. Finally, one attorney steps forward and says, “I don’t care what my friends at the Rotary Club and the First Baptist Church say. This is America, and everyone is entitled under the Sixth Amendment to our Constitution to be represented by an attorney.”

That would be idealism. I, too, would represent a defendant—even one I believed to be guilty of murder—if I were the only lawyer available, because the right to counsel is a sacred right in our society and much more important than any personal predilection I might have. But this type of situation simply does not exist in a city like Los Angeles, where 35,000 lawyers stumble over each other’s feet for cases. (For instance, when Charles Manson was charged with the Tate-LaBianca murders, over two hundred lawyers signed in to see him at the county jail, obviously for the purpose of seeking to represent him.) So I am free to follow my inclination.

Since nothing in the canons of ethics of the American Bar Association says a lawyer has to represent everyone who comes to his door, I choose not to defend anyone charged with a violent crime unless I believe he or she is innocent or unless there are substantially mitigating circumstances. (By the latter, I don’t mean the question said to be asked about the victim by hard-bitten sheriffs in rural Texas at the start of any homicide investigation: “Did he
need
killing?”) I investigate my own cases, and if I become satisfied in my own mind that the person is guilty, with no substantial mitigation, I routinely refer the case to other lawyers.

My position is not a matter of high ethics. It’s more a matter of motivation. Let’s take some vicious
SOB
who picks up young girls, sexually abuses and brutalizes them, then murders them and dumps them on the side of the road. What conceivable motivation could I possibly have to knock myself out working a hundred hours a week trying to figure out a way to get this type of person off?

I am also not unmindful of the fact that were I to secure a not-guilty verdict for one of these defendants I represented and he went out and did it again, I could rationalize all I wanted, but I would be partially responsible. If I had not deceived the jury the first time around, there would not have been a second murder.

In a nutshell, although I have never been a law-and-order fanatic—in fact, I’m suspicious of those who are—I do believe that those who have committed serious crimes should be severely punished, and I do not want to be in a position of actively seeking to thwart this natural justice.

One illustration of my dilemma in legal defense work was the case of Dr. Jeffrey MacDonald, the Princeton-educated former U.S. Army Green Beret who was accused of savagely stabbing to death his pregnant wife and two young daughters in their Fort Bragg, North Carolina, home one rainy night in March 1970. He was first charged with the murders that year, but the case against him was dropped because the evidence was insufficient. It was sometime in late 1973 or early 1974 that a close woman friend of MacDonald’s came to my office in Beverly Hills and told me that the doctor, who was then working as an emergency room physician in nearby Long Beach, had learned he was about to be reindicted. She said the doctor wanted to know if I would be interested in representing him. We could talk about it, I said, if the doctor was innocent. I told her, “Tell him, though, that for starters I want him to take and pass a polygraph test.” While waiting to hear from him, I telephoned the federal prosecutor handling the case in North Carolina and asked what he had against MacDonald. The prosecutor would not say very much, but did mention a few pieces of evidence to me, one of which was that fibers from MacDonald’s blue pajamas had been found embedded beneath the fingernails of his two-and-a-half-year-old daughter. That evoked in my mind the horrifying scene of a little girl crying out, “Daddy, Daddy, no,” as she reached out and struggled against her father while he stabbed her to death. That was enough for me. I wanted nothing to do with the case. MacDonald’s lady friend called a week later anyway to say that he did not think it was necessary to take a polygraph as a precondition to my representing him. Convicted of the triple murder in 1979, he was sentenced to three consecutive life terms in prison.

My disinclination to defend a murderer also resulted in my electing not to represent former San Francisco supervisor Dan White for the 1978 assassination murders of Mayor George Moscone and Supervisor Harvey Milk when friends of White’s from the San Francisco Police Department—White was a former officer—asked me to.

Those are the only two really big murder defendants who have ever come to me. Since my image is still that of a prosecutor, when people get in trouble with the law, I’m usually one of the very last people they think of.

Just because I could never have defended O. J. Simpson for these murders since I know he committed them does not mean I’m critical of the lawyers who did defend him for having done so. What I
am
very critical about is in
the way
several of them went about doing it. It’s one thing to defend someone you know is guilty, even defend him vigorously. Who can validly criticize such a lawyer? Our system of justice and jurisprudence not only allows but encourages this.

But inasmuch as the defense lawyers had to know Simpson was guilty of these two terribly brutal murders, I personally wonder how they could possibly have found it within themselves to go far beyond a vigorous representation, defending him with the same passion and fervor with which one would defend his own parents, wife, or children who were being charged with a serious crime.

Moreover, although it’s perfectly proper to defend a guilty person by trying to poke holes in the people’s case, you don’t, for instance, deliberately violate the rules, as Cochran did when he argued throughout his opening statement (which is not allowed), and you don’t, in your opening statement, refer to witnesses whose identity and statements have not been turned over to the prosecution (in violation of the law). More important, you don’t (Cochran, Bailey, Scheck) accuse innocent police officers of framing your client for murder. You don’t (Cochran, Bailey) inject the transparently fraudulent issue of race into the trial, particularly when it’s to the detriment, as it was with Cochran, of your own race. You don’t (Cochran and Scheck) object time and again during the prosecutors’ final summations, in a concerted, unprofessional, and unethical effort to interrupt the flow of their arguments, therefore denying the people their right to a fair trial.

The reason I am omitting any reference to Robert Shapiro here in this legal rogues’ gallery is that I am unclear as to his state of mind and intentions with respect to some of these matters. Although he is on record as saying before the trial started that race was not going to be an issue at the trial, and immediately after the verdict he distanced himself from Cochran and condemned him for playing the race card, and from the bottom of the deck at that, there is the troubling July 25, 1994, article in
The New Yorker
magazine titled “An Incendiary Defense,” which was written well in advance of July 22, 1994, the date Cochran joined the defense team. The author, Jeffrey Toobin, said that “leading members of Simpson’s defense team” had told him the defense intended to present evidence and argue that Mark Fuhrman framed Simpson, and “the defense will assert that Mark Fuhrman’s motivation for framing O. J. Simpson is racism.”

Shapiro was the lead defense lawyer at the time of this article, and a large photo of him (by photographer Richard Avedon, taken for the article on July 11, 1994, confirming the article was in the works weeks
before
Cochran came aboard) appeared in the piece, with the caption “Robert Shapiro, Simpson’s top defender, in Los Angeles.” And in Toobin’s
The Run of His Life
, Toobin says that it was Shapiro himself who furnished him this information. Also, during the trial, when F. Lee Bailey cross-examined Fuhrman on his use of the word “nigger,” Shapiro told reporters, “My preference was that race was not an issue in this case and should not be an issue, and I’m sorry from my own personal view that it has become an issue in the case.” But the
Los Angeles Times
reported in their March 17, 1995, edition that “a source on the defense team dismissed Shapiro’s contention, saying that Shapiro had not raised any objections during strategy sessions.” However, discussing “potential strategies” with a reporter before the trial (which is all Shapiro said he did) and remaining silent at defense strategy sessions is not the same as saying that if Shapiro had been the lead defense lawyer at the trial he would have in fact pursued the same fraudulent and unethical defense Cochran did.

So at least, based on what I know thus far, in my mind the jury’s still out on Shapiro.

A note about Barry Scheck. Scheck has a reputation as a lawyer for the poor and dispossessed, having worked for three years as a Legal Aid lawyer in the Bronx. He and his colleague Peter Neufeld later created the Innocence Project, which has reportedly used
DNA
testing to free a dozen innocent people previously convicted of crimes. But in the Simpson case, where we know Simpson was guilty, Scheck showed just how conceptually pristine and intellectually honest his
Innocence
Project really is—pristine and honest all the way up to the point of a big publicity case beckoning him to oppose justice for a man he had to know was guilty of murder.

The defense attorneys in this case perpetrated an enormous fraud on the jury, but instead of then quietly stealing away into the night with their stolen booty, after the trial they have audaciously dangled their booty in our faces and tried to perpetrate the same fraud on the American people. Can you imagine Robert Shapiro titling his book on the Simpson case
The Search for Justice
? And Johnnie Cochran titling his
Journey to Justice
? How can you have justice when a brutal murderer walks out the courtroom door a free man with a smile on his face? Since Shapiro and Cochran both know Simpson is guilty, out of the thousands upon thousands of words in the English language, couldn’t they have found any other word that fit their needs and purpose other than the word “justice”? To paraphrase attorney Joseph Welch’s remark to Senator Joseph R. McCarthy during the U.S. Senate hearings in June of 1954 on alleged subversive activities in the U.S. Army, have these lawyers, “at long last, no sense of decency?” Where do they get the guts to spend an entire year in open court in front of millions of people desperately trying to prevent, frustrate and thwart justice, and then try to tell us that actually they were fighting
for
justice? Again, where do you buy guts like this?

To borrow a phrase from Henry Roth’s recent novel,
From Bondage
, in the ensuing years each of the aforementioned defense attorneys in the Simpson case will have to “reconcile himself with himself.” Unless, that is, as another novelist, Gertrude Stein, once said about Oakland, California, “there’s no there, there.”

Black support for O. J. Simpson and its consequences

As if African-Americans haven’t suffered enough throughout this nation’s history because of the calcified minds of squint-eyed bigots, because of their fiercely partisan and ultimately unjustified support of someone most know to be a savage killer, they may start suffering, though more indirectly, at the hands of those who have been traditionally supportive of them.

As
Newsweek
magazine said in its October 16, 1995, edition: “What was different—and disturbing—about the racial talk last week was that so many white liberals sounded fed up. Many middle-class professionals who have always supported integration, maintained office and social friendships with African-Americans, and resisted the backlash against affirmative action were appalled by what black novelist Dennis Williams called the “end-zone dance” [by blacks] over the Simpson acquittal. It made them wonder aloud whether they really knew African-Americans as well as they thought they did, and whether the racial gap wasn’t much wider than they had believed.”

I find it curious and ironic that although Johnnie Cochran used the black community to its own long-term detriment when he manufactured a racial issue in the Simpson case out of whole cloth, he is now being perceived as a hero among African-Americans. “He is a national hero, especially among African-Americans,” says former Los Angeles mayor Tom Bradley. The October 4, 1995, edition of the
Los Angeles Times
said: “When the Congressional Black Caucus held a Washington conference last month, it was not President Clinton or retired General Colin L. Powell who received several ovations or were besieged for autographs. It was Cochran. ‘Johnnie was well received,’ said Kim Hunter, a Los Angeles advertising and public relations executive. ‘The audience of five thousand embraced him. They were very proud.’”