Outrage (8 page)

T
he other significant influence that was not only “in the air” but “on the air” was the outlandish spectacle of the TV talking heads. This influence came into play not before but during the trial, and if it reached the jury, as it almost undoubtedly did (osmosis and conjugal visits), it could only have been harmful to the prosecution’s case. These commentators, nearly all of whom were also quoted in the print media, were always talking about the enormous problems the prosecution was having, frequently suggesting their case was falling apart. But if you look at things
objectively
, how could the DA’s case be falling apart—which means the prosecution couldn’t win, doesn’t it?—when the evidence put Simpson’s blood at the murder scene and the victims’ blood inside his car and home? Unless the defense was able to remove that blood, which it never did, objectively speaking you have the strongest case in the world. Yet the talking heads, as well as (though to a lesser degree) the print media, never looked at the case in its totality. Instead they looked at each day’s testimony and events as if they were entire trials unto themselves, and were sending out a steady stream of distress signals about the prosecution’s case. “Lots of seeds of doubt
have
been planted” was the
USA
Today
headline after Cochran’s opening statement on January 26, 1995, before even one witness had been called by either side—which is like saying that unless the prosecution does something about it, the case is already a reasonable-doubt case.

To me, the whole premise of the talking heads discussing the case throughout the day and on evening shows made no sense. Television coverage of the trial, while I was opposed to it, at least allowed anyone who was interested in the trial to watch it and see what was actually happening. And certainly, for those who wanted to watch the trial but couldn’t because of work, commentary on the evening news describing what took place that day in court is not only an established practice and custom, but it makes sense. That’s what the news is: someone telling you what happened that day in the courtroom, in Congress, in Bosnia, etc. But what conceivable purpose was there in having these silly talking heads sitting around the campfire every night chatting about the case? People didn’t need the talking heads to tell them what happened that day, because they could get that on the news. All these legal commentators did was argue with one another over their interpretation and analysis of the significance of what had taken place that day in court. However, since their interpretation and analysis were for the most part only speculation and theorizing, and because their remarks, by definition, couldn’t change what had taken place, these shows amounted to nothing but light entertainment for Simpson addicts. But needless to say, these shows were never presented as such, being offered as serious exercises.

Moreover, the whole notion of using these particular talking heads for legal analysis on the Simpson case was ludicrous on its face. In those situations where analysts are used to discuss a newsworthy event, the analysts almost always are or have been at the top of their profession. For instance, who are the analysts for professional football games? Ex-players like Terry Bradshaw and Joe Montana, among the greatest quarterbacks to have ever played the game, each winning four Super Bowls. Or Mike Ditka and John Madden, former coaches of
NFL
teams. At the U.S. Open or Wimbledon, the commentators are people like John McEnroe and Martina Navratilova, tennis legends who are members of the sport’s pantheon of all-time greats.

What type of qualifications, on the other hand, did the talking heads of the Simpson trial have? At least nine out of every ten I had never seen or heard of before this case. Indeed, most had never even been on national television before, many not even on local television, yet suddenly they were fixtures on the evening shows. Although it was, of course, a great opportunity for them to get their faces on television night after night, the problem was that the majority of them didn’t know what the hell they were talking about.

Look at it this way. If I can demonstrate to you, as I think I can in the Epilogue, that the members of the Dream Team, who were supposed to be the best in the legal profession, were in many instances incompetent, what does that tell you about lawyers whom no one had ever heard of before, and who were not considered by anyone to be the leading lights of their profession? The incongruous sideshow of these “experts” pontificating on how to try a criminal case was downright laughable. And listen to this. Many had never tried a murder case in their entire career. In fact, several of them, believe it or not,
weren’t even criminal lawyers
. They were civil lawyers who had never handled any kind of criminal case in their lives. One would think, under the circumstances, that they would have been embarrassed to serve as analysts. But to the contrary, this didn’t inhibit them at all from trying to come across like Delphic oracles to millions of people. Yet they couldn’t go more than two or three minutes without saying something utterly ridiculous, but how would a lay listener ever know?

Even most of those analysts who were
ostensibly
qualified to discuss the intricacies of a murder trial were, in fact, rarely so. For instance, two former Los Angeles district attorneys were network commentators. But one had never distinguished himself as a prosecutor in any way, and had the most mediocre of records as a deputy district attorney before the governor of California, a close personal friend, helped secure his appointment as DA. And the other, who ran for the office of DA, had never prosecuted one single felony case of any kind in his entire career! But one would never know this to listen to them talk.

And then there were the law school professors. Before this case, I had never heard that law school professors, who teach dry law out of casebooks, were supposed to be authorities on how to try a criminal case before a jury. But suddenly, these unknown law professors were experts on the trial of a case. The fact that they weren’t, and most, if not all, had never even tried a murder case themselves, was immaterial. They were law school professors, weren’t they? The professors who commented on the Simpson trial are perfectly intelligent people, as I’m sure most of the talking heads are. But intelligence is hardly the key ingredient of either being a top-flight trial lawyer or being capable of sagacious comments on a criminal jury trial. As a trial lawyer, intelligence is important only in the sense that it allows you to play the game, if you will. Without it, you don’t even have a ticket into the competitive arena. But beyond that, it doesn’t get you very far at all. If it did, out of the close to one million lawyers in this country, we’d have a tremendous number of great trial lawyers, but the reality is that great trial lawyers are about as rare as fishermen who don’t exaggerate. I could give you endless examples of the insipid remarks made by these talking heads (“The prosecution has no case without the domestic violence evidence” “Johnnie Cochran bringing out that the
LAPD
hadn’t found the murder weapon was just superb cross-examination” “O.J.’s elderly mother is sitting in the courtroom, and I doubt the prosecution’s evidence will be able to overcome that type of emotional pull with the jury toward O.J.” etc.). In fact, they seemed to have a sweet tooth for silliness.

One story I would like to relate is of a conversation I had with one of the law professors near the start of the case. I was pointing out to the professor how Simpson’s having bled all over his car and home on the night of the murders made his guilt obvious. The professor, with the innocence of a child in its crib and without batting an eye, brushed my observation aside with these words: “Oh,” the professor said, “the defense has that covered. They’re going to say O.J. cut himself on his cellular phone.” To the professor, as long as the defense had
some
answer for the blood, that was all that was needed to solve the problem. Whether the story was believable or not (that Simpson innocently cut himself very badly around the very same time of the murders) apparently never entered the professor’s mind. Yet the professor, with this quality of thinking, was on radio and TV, and was quoted in the newspapers as much as or more than any other analyst during the entire Simpson trial.

One of the amusing things about the talking heads as well as the print analysts (some talking heads did both) was that everything happening in court was “critical,” devastating,” “pivotal,” or “disastrous.” And they trotted out these adjectives (and continued to use them) from the very beginning of the trial. Listening to these people, if this had been a professional fight, both fighters would have been knocked out by the middle of the first round. I also found it amusing that although jurors for the most part sit wooden in the jury box during a trial, believing, like participants in a black-tie poker game, that they are never supposed to change their expressions, the talking heads were reading the jurors’ minds almost every night.

Before we move on, let me present what I believe will prove the utter incompetence of the talking heads. As I’ve indicated, most were previously known only to their immediate families. Among those who were known, at least in the legal community, was a former prosecutor and U.S. attorney from back east who was on constantly and was quite passionate about his views. Near the beginning of the trial, when all we had seen of Cochran was his completely improper and inferior opening statement (see the Epilogue), as well as his nonexistent cross-examination skills, this lawyer was opining on what a superb lawyer Cochran was and about all the concerns he’d have over facing Cochran in court. What that instantly told me, of course, was this was a .200 hitter being impressed by a .250 hitter. Not that I needed one more speck of confirmation, but after the verdict, when the
L.A. Times
asked me and three other prosecutors, including this former prosecutor, to write a statement on how we would have handled the case differently, I set forth some of what I say in Chapters 4 and 5 of this book, where I point out the absolutely astounding, shocking, and incredible errors made by the prosecutors in this case. But this prosecutor wrote: “I don’t have an answer for that question.” He later added: “I think they did a damn good job under horrible circumstances.” In other words, as far as this former prosecutor was concerned, the prosecutors in the Simpson case were superb prosecutors who did all they could. I didn’t have to read what he wrote to convince me he was a .200 hitter. I already knew. Yes, to that former prosecutor, Cochran
was
a hell of a lawyer. And this particular talking head was one of the stars of the talking head cottage industry. For the most part, it was downhill from him. After you read Chapters 4 and 5, think back to this prosecutor’s assessment of the district attorney’s performance in the Simpson case.

Why should I care if these talking heads were babbling and ranting on TV almost around the clock? Actually, I wouldn’t have cared if Simpson had been convicted. But I feel confident—although I can’t be positive—that they contributed, even if not in a major way, to the not-guilty verdict in this case. The majority of them were criminal defense attorneys who, whenever possible, usually offered a pro-Simpson, pro-defense interpretation to what was happening in court, magnifying defense points far beyond their worth and muting important points made by the prosecution. Like the print media, they were constantly finding problems and weaknesses with the prosecution’s evidence that either did not exist or that they exaggerated. They loved to expound on how the prosecution’s case was unraveling. “The DA has no chance of winning,” one of the former Los Angeles district attorneys, who has been a defense attorney most of his career, said. “Their case is in rubbles.” These negative interpretations of the prosecution’s case were “in the air” every day and every night, and so they became the conventional wisdom, the party line, as it were.

If the jury somehow inferred that the consensus of the community was that the prosecution’s case was full of holes and falling apart, how could this not help but push them, consciously or otherwise, in the direction of reasonable doubt, and hence a not-guilty verdict?

Before I get into the next chapter, I’d like to restate an important point. If any reader is wearying of my fairly constant criticism of everyone associated with this case, I’d like to remind that reader of what I said in the Introduction: that I’m still angry and upset about the verdict, and unquestionably this has affected my tone. If Simpson had been convicted, this book obviously wouldn’t have been written. Even with the not-guilty verdict, if the defense hadn’t injected the bogus issues of race and a police frame-up into the case, and if Simpson hadn’t elevated, as I’ve indicated, audacity to a Zen art, my tone would be somewhat softer. But the conduct of virtually everyone associated with this case was deplorable, and as a result, we continue to be reminded of the horror of it all by the smiling face of Simpson frolicking somewhere in the sun, or by a disturbed Simpson, scolding his detractors. And in mid-December 1995, Johnnie Cochran threw a lavish celebration party for all the jurors in the Simpson case. Can you imagine the smiles, jokes, and celebratory toasts that took place? Picture Simpson with his sharp knife viciously stabbing Nicole and Ron to death while imagining the festive party-goers dining on the best food, laughing and enjoying themselves. It’s so goddamn obscene there are no words for it.

T
here can be little question—though no one could expect any of the Simpson jurors to admit it—that most members of the Simpson jury were biased against the prosecution and in favor of Simpson. If nothing else, the jury’s outrageous verdict and the lightning speed with which they reached it, demonstrate this point. How dare Judge Ito tell this jury after the verdict that society owed them a “debt of gratitude” when they came back with a verdict that not only was incompatible with the evidence but had been reached after an inexcusably brief three and a half hours? (The guilt phase of the Manson case lasted close to seven and a half months, yet the jury deliberated seven days, and
that
was considered a relatively short time for a trial of such length. The entire Manson trial, including the penalty phase, lasted nine and a half months.) Ito could have thanked the jurors for their time without adding the absurd comment that society owed them a “debt of gratitude.”