With respect to circumstantial evidence, the prosecutors let the defense attorneys get away with highway robbery. In addition to arguing, of course, that the prosecution hadn’t proved Simpson’s guilt beyond a reasonable doubt, both Cochran and particularly Scheck argued to the jury on several occasions that there was a reasonable doubt as to whether a
certain fact
was true, and hence this entitled them to a not-guilty verdict. There were, Cochran argued, “many, many, many reasonable doubts” in the case.
Scheck argued that the
LAPD
crime lab was a “cesspool of contamination” and therefore its conclusions gave rise to “a reasonable doubt.” He even went so far as to argue that the prosecution “had to prove the blood evidence wasn’t tampered with beyond a reasonable doubt,” i.e., the prosecution had to prove a negative beyond a reasonable doubt, for which there is no legal authority. Apparently all the other evidence of guilt was irrelevant if the blood evidence had been tampered with. I kept waiting for the prosecutors, in their rebuttal, to point out that “the
only
thing we have to prove beyond a reasonable doubt
is Mr. Simpson’s guilt
.” But they never did. Not once.
The circumstantial evidence instruction says that “each fact which is
essential
(obviously, not every fact in a case) to complete a set of circumstances
necessary
to establish the defendant’s guilt must be proven beyond a reasonable doubt.” Using this instruction, Scheck argued to the jury that there was a reasonable doubt as to whether the police had planted blood on the socks in Simpson’s bedroom, and, he said, the socks were “an essential fact” in the prosecution’s case. Therefore, he concluded, this was another “reasonable doubt.” But of course the socks were not
essential
to proving Simpson’s guilt. Even if they had never existed, or even if blood had been planted on them, if there was sufficient
other
evidence in the case to prove Simpson’s guilt beyond a reasonable doubt, as there was, the prosecution would still be entitled to a guilty verdict. Likewise, Scheck somehow had it figured out that if Mr. Simpson had in fact been wearing the bloody glove found at his Rockingham estate, and had cut his finger the way the prosecution claimed he did during the murders, then blood of Mr. Simpson’s would be expected to be found on “the top fingers of the glove,” and because it wasn’t, he told the jury “that has to give you a reasonable doubt.”
Just as the defense attorneys never told the jury that contamination would change someone else’s blood into Simpson’s (knowing they would sound ridiculous if they said this), only that contamination made the results “unreliable,” Scheck and Cochran never said that each one of these individual alleged problems with the prosecution’s case created a reasonable doubt “of guilt.” As I’ve indicated, they simply said there were “many reasonable doubts,” i.e., a reasonable doubt here and a reasonable doubt there.
And the Simpson jurors swallowed this hook, line, and sinker. Discussing the fact that Simpson’s blood was at the murder scene, jury foreperson Armanda Cooley says in her book, “We [the jury] can’t explain it away. Me, personally, I have not tried to explain it away at all. That was not one of the issues [Simpson’s blood at the murder scene was not one of the issues?] and that was definitely not
the
reasonable doubt we based our decision on”—i.e., Armanda and her friends had more important things to concern themselves with than Simpson’s blood being at the murder scene. The game, apparently, was not about whether or not
Simpson’s guilt
had been proved beyond a reasonable doubt, but whether a reasonable doubt could be found anywhere at all in the case. And if it could, it was a “reasonable doubt” case and Simpson was entitled to a not-guilty verdict. For instance, Cooley said that if Fuhrman was a liar, “you’ve got reasonable doubt right there.”
The bottom line, of course, is that even if the
LAPD
laboratory was a cesspool of contamination, or even if a certain item of evidence was planted or tampered with, or even if Fuhrman was a liar, this did not preclude the jury,
as a matter of law
, from concluding that the prosecution, by the weight of all the
other
evidence, had proved Simpson’s
guilt
beyond a reasonable doubt. Yet the jury was led to believe that if there was a reasonable doubt as to
any
contested fact, Simpson was entitled to a not-guilty verdict. But in their rebuttal arguments, not one word was uttered by either prosecutor to clarify this point, which could not possibly have been more important, nor did they ask the judge to clarify this point in his instructions to the jury.
With the circumstantial evidence instruction on reasonable doubt, Scheck committed armed robbery in broad daylight and all the prosecutors did was stand by and watch. Scheck must have felt as if he were taking candy from a baby.
W
hat was
totally
lacking from both prosecutors’ arguments, opening as well as closing, was drawing powerful inferences of guilt from the evidence, one after another, that no one else in the courtroom had thought of—the type that causes one to say, “Hey, I never thought of that.” When this happens you know you’re listening to a first-class summation, one that is elevated above the pedestrian, prosaic summations that are virtually all one hears in American courtrooms. In the Simpson case, the two prosecutors didn’t even make many of the most obvious arguments, much less those no one else had thought of.
And what was
almost totally lacking
from both prosecutors’ arguments was any imagination, or eloquence, or oratorical style. Nothing is more effective in driving home an important point than a colorful and well-chosen example, metaphor, or even a humorous story. The virtual absence of soaring oratory by the prosecutors—their very few attempts at a colorful example or parable, with the lone exception of Darden’s talking about the jury’s rescuing a baby (“baby justice”) from a burning building, were banal and dull—showed that both had the mentality of journeyman lawyers, ill equipped to have been thrust on center stage in what the media called “the trial of the century.”
For example, this type of argument would have been ideal for the Simpson jury at the very beginning of closing argument, even though none of the jurors may ever have read Victor Hugo:
“I wonder if any of you folks have read Victor Hugo’s account of the octopus. He tells us of how it doesn’t have any beak to defend itself like a bird, no claws like a lion, nor teeth like an alligator. But it does have what could be called an ink bag, and to protect itself when it is attacked it lets out a dark fluid from this bag, thus making all of the surrounding water dark and murky, enabling the octopus to escape into the darkness.
“Now I ask you folks, is there any similarity between that description of the ink bag of the octopus and the defense in this case? Has the defense shown you any real, valid, legitimate defense reasonably based on the evidence, or has it sought to employ the ink bag of the octopus, and by making everything dark around Mr. Simpson, tried to let him escape into the darkness?
“I intend to clear up the water which defense counsel have sought to muddy, so that you folks can clearly see the evidence, the facts, the issues in this case, so that you can behold the form of the retreating octopus and bring this defendant back to face justice.”
With respect to the use of colorful examples to make a point, this is an argument I gave in a double-murder case based on circumstantial evidence. The prosecutors should have used some variation of this:
“I think that counsels’ problem is that they misconceive what circumstantial evidence is all about. Circumstantial evidence is not, as they claim, like a chain. You could have a chain spanning the Atlantic Ocean from Nova Scotia to Bordeaux, France, consisting of millions of links, and with one weak link that chain is broken.
“Circumstantial evidence, to the contrary, is like a rope. And each fact is a strand of that rope. And as the prosecution piles one fact upon another we add strands and we add strength to that rope. If one strand breaks—and I’m not conceding for a moment that any strand has broken in this case—but if one strand does break, the rope is not broken. The strength of the rope is barely diminished. Why? Because there are so many
other
strands of almost steel-like strength that the rope is still more than strong enough to bind these two defendants to justice. That’s what circumstantial evidence is all about.”
There were all types of opportunities in this case for the prosecutors to use humor in their summation to point out the changing and inconsistent positions the defense took—for instance, the three different stories they floated as to what Simpson was doing at the time of the murders. This type of argument, from one of my murder cases, is illustrative: “Jack Dodd’s flip-flops on the witness stand in this case remind me of a story people tell about a civil case years ago. The plaintiff,” I recalled to the jury, “sued his neighbor alleging that while he was walking along the sidewalk in front of his neighbor’s home, the neighbor’s dog had run out and bitten him, causing injuries. The neighbor filed an answer to the complaint in which he set forth three contentions: Number one, he said, ‘my dog was chained to the house, and the chain doesn’t extend out to the sidewalk, so there was no way for my dog to bite the plaintiff’ number two, ‘my dog is an old dog, he doesn’t have any teeth, so even if he did bite the plaintiff, he couldn’t possibly have hurt the plaintiff’ and number three,” I shouted out, “‘I don’t even
own
a dog.’ This is Jack Dodd,” I told the jury, whose laughter cleared some of the tension that had been building up in the final hours of the trial.
I was also waiting for the prosecution to point out to the jury that the prosecution doesn’t have the burden to prove every little point in a case and answer every single, conceivable question the defense might raise or the jury might have, and that the prosecution’s failure to prove every single point doesn’t negate all that
has
been proved. I kept waiting for the prosecutors to point out that the heart of the defense case for over nine months, both as to the frame-up and the contamination theories, was to treat every question asked as the equivalent of proof, to split hairs, to focus in on one penny-ante mistake, discrepancy, or inconsistency after another, and try to blow their significance totally out of proportion. Yet the prosecutors
never once
made an argument such as this to the jury:
“If you put virtually
any
criminal case under a high-powered microscope, you’re going to find a few discrepancies here and there, inconsistencies, slip-ups, unanswered questions, incompetence, etc. That’s true because of the nature of life. But they don’t add up to anything. Things don’t happen in life with mathematical precision and in apple-pie order. And the law takes cognizance of this. That’s why the prosecution only has to prove guilt beyond a reasonable doubt, not beyond all doubt. If the prosecution had to cross every
t
and dot every
i
to get a conviction, we’d rarely get one.”
This could have been followed by a current example of human fallibility which the jury could relate to, such as this, from my summation in the murder case upon which
Till Death Us Do Part
was based:
bq.
Mr. Goldin devoted almost fifty percent of his closing argument to attacking Michael Brockington and accusing him of murder, mind you. He also said that Brockington made many inconsistent statements on the witness stand, and hence he is not a believable witness. Well, I don’t think any normal human being could take that witness stand and answer several hundred questions pertaining to fifty or more events taking place over a period of two years without there being some minor discrepancies in his or her testimony.
Goldin’s theory is that if the prosecution doesn’t call robots and computers to that witness stand, if we only call human beings, somehow or other Alan Palliko didn’t pull that trigger on Henry Stockton. If Dave Goldin wants to play a game like that, ladies and gentlemen, let him play it by himself.
Recall Frank Borman—Colonel Frank Borman? He was the commander of the Apollo 8 flight that just recently circumnavigated the moon. On the first day of that flight, when Borman was sending transmissions back to Cape Kennedy, he referred to the Apollo 8 flight as the Gemini 8 flight, a flight he had participated in back in 1965.
Now, just consider the monumental preparation that Frank Borman must have put into that Apollo 8 flight, and yet Frank Borman is sending back messages from Gemini 8. Can’t you just hear Mr. Goldin in the control center down at Cape Kennedy when Borman sent any messages thereafter? “We can’t believe that man. His credibility has been destroyed. He is unreliable, and these photographs he’s sending of the moon—how do we know they are not fake?”
I was particularly amazed that the prosecutors never argued to the jury the ridiculous improbability of all the things pointing to Simpson’s guilt in this case being just a coincidence. Both prosecutors acted as if they hadn’t the faintest idea how to prosecute a circumstantial evidence case. I’ve put people on death row—and this is not an exaggeration—where the circumstantial evidence was one hundred times less powerful than in this case. Although Clark and Darden did, a surprisingly few times, say “Is it just a coincidence that…” and although the prosecutors, in their arguments to the jury,
did
cite most of the pieces of evidence they presented at the trial which pointed to Simpson’s guilt, they never, remarkably, put all of the evidence and circumstances
together
and pointed out that as the number of circumstances pointing to guilt increases, the likelihood of
any
of them being a mere coincidence dramatically decreases. That is, they never made the obvious argument that the
combination
of all these coincidences made the conclusion of Simpson’s guilt mandatory.