I had spoken for six hours. I returned unsteadily to my seat. I was dizzy. My jaw ached.
Chris wrote a note and pushed it over to me. “That was brilliant.”
I looked back at him and smiled. It was the most warmth we had shared in weeks.
Ito had decreed that during summations we would go into evening sessions, so it was nearly seven o’clock before Chris rose to speak. If he’d been drained by the strain of waiting, he didn’t show it. Very calmly, dramatically, he pointed a finger at the defendant.
“The killing was personal,” he told the jury. “You look at the domestic violence, the manner of the killing, the physical evidence, the history of abuse and their relationship, the intimidation, the stalking. You look at it and it all points to him. It all points to him.”
Once again, he traced the violence between the Simpsons from 1985 through 1989, and likened it to a burning fuse. “We submit to you that the hand that left [an] imprint [on Nicole’s] neck five years ago is the same hand that cut that same throat… on June twelfth, 1994. It was the defendant. It was the defendant then. It’s the defendant now.”
Chris had done good work during hours of closed-door sessions with Scott Gordon and Gavin de Becker. His message and delivery were powerfully sincere. Now, as I watched him, I was reminded of why I’d brought him on board in the first place. Chris Darden was smart; he was tough; and, above all, he was principled. I remembered why I’d been proud to call him my partner.
Over the past nine months, I’d been annoyed repeatedly by the transparent-and, in my opinion, amoral-ploys on the part of the defense to manipulate the jury. Johnnie Cochran had come in for a fair share of my anger. And yet my harsh feelings toward him were always tempered by the realization that for most of his career Johnnie had actually stood for something. He’d seen young black men shaken down and roughed up by cops and he’d felt a righteous outrage. He’d dedicated his career to waking the system up and making it play fair. Crying “racism” in virtually every case where he had a black defendant was his stock-in-trade. It was often disingenuous. But you could argue that it was done in the service of principle.
When on September 27 Johnnie rose to give a summation that would last for parts of two days, he cast principle to the wind.
After complimenting the twelve for being a “truly marvelous jury,” he bestowed upon them the blessing in absentia of Abraham Lincoln who’d proclaimed that “service is the highest act of citizenship.” He then invoked Frederick Douglass, exalting the ideal of “no white, no black, but common country, common citizenship, equal rights, and a common destiny.”
Having intoned those lofty sentiments, Johnnie launched into a harangue of hatred against the “messengers” of the state. He flew at Fuhrman’s throat, labeling him a “genocidal racist”-one who had lain in wait nine years for an opportunity to frame O. J. Simpson. Then, through the alchemy of rhetoric, Johnnie fused Fuhrman and Vannatter. They became, progressively, the “Twins of Deception,” the “Twin Demons of Evil,” and finally the “Twin Devils of Deception.
“There was another man, not too long ago, who had those same views, who wanted to burn people,” Johnnie said. “This man, this scourge, became one of the worst people in the history of the world. Adolf Hitler.”
Hitler? I was nearly breathless with outrage. When Johnnie took the floor that morning, could he really have intended to say these things?
(I later learned this was no heat-of-the-moment excess. This atrocity had been scripted for Johnnie by a fellow defense attorney who was informally assisting the Dream Team. The ghostwriter, I was appalled to discover, was Jewish.)
To have been driven to this excess, Johnnie had to feel desperate. He and his whole crew, in fact, had to be scared to death that the jury might, just for one moment, come to their senses and listen to the evidence. If they did, of course, they would have no choice but to convict. Instead, Johnnie showed them a face-saving detour around the truth. A shortcut that would leave them with the illusion that they were upholding justice.
“Your verdict,” he told that mostly African-American jury, “will go far beyond the walls of [this courtroom]. Your verdict talks about justice in America and it talks about the police and whether they should be above the law… Maybe that’s why you were selected. There’s [someone] in your background… that helps you understand that this is wrong… Maybe you’re the right people, at the right time, at the right place to say, ‘No more-we’re not going to have this.’ “
Johnnie was asking for the jury to deliver a big “Screw you.” It’s called “jury nullification.” It’s not legal. It’s not allowed. But it’s not necessarily evil. Jury nullification can sometimes serve a greater good. The example most often given is that of Northern juries who, during the days before the Civil War, refused to sentence fugitive slaves to death. Jurors on these cases often acted with courage, flying in the face of bad law by voting to acquit.
But there was no such exalted legal or social issue at stake here. Johnnie Cochran was exhorting this jury to turn its back on perfectly good laws in order to free his client. And who was his client? Not some fugitive from oppression. His client was a homicidal narcissist, a man who, for the entire span of his overrated career, stood for nothing but his own self-aggrandizement. His client was a man who lived by no creed except to pursue his own infantile impulses. His client was a black man who had done nothing to further the welfare of his black brothers and black sisters and had, in fact, turned his back on them.
This put me in a bind. If I objected, it would look to the jury-at least this jury-like the prosecution was trying to stifle a plea for justice. And that impression would only be reinforced if my objection was sustained. (Later, out of the presence of the jury, I did protest the call for nullification.) The fact of the matter, however, is that it’s the job of the judge in a situation like this to step in and object on his own motion. His is the only action powerful enough to scotch such a plea. But Ito stood passively by while Johnnie turned that jury into a mob.
And I thought, Shouldn’t your ideals, Johnnie, have brought you to a better place than this?
I also thought, My jaw is killing me, and I’m about to pass out.
Johnnie spoke for two days, followed by Barry Scheck. Upstairs in our office, a platoon of D.A.s and law clerks remained stationed at television sets, taking notes. I’d given orders that I wanted a complete inventory of every distortion, misrepresentation, half-truth, and outright lie that came out of the defense’s performance.
I had intended to oversee the business of parceling out the list for rebuttal after we broke for the day. But by the time I got off the elevator on the eighteenth floor, I was beyond coherent thought. The pain radiating through my skull was blinding.
Hank Goldberg pulled me aside.
“Marcia,” he said, “maybe we should ask Ito for a continuance. I think the fact that our lead prosecutor needs dental surgery is plenty good cause.”
Hank, I knew, was worried about me. I’m also sure he was concerned about what kind of performance I’d put in during rebuttal the next day. But I knew we couldn’t hold off. I didn’t want the jury back there cogitating on the swill they’d just heard from Cochran and Scheck.
I had to get rid of this problem fast. The mirror in the women’s restroom showed an angry, inflamed lump on my lower gum. For a moment I even considered trying to lance it myself with a needle. Cheri was appalled.