Ethics Dunce: Marcia Clark

Bill Buckner's error: he didn't kill anyone, but to many Red Sox fan, this was worse.

Bill Buckner’s error: he didn’t kill anyone, but to many Red Sox fan, this was worse.

“I did not want [Simpson] to try on the evidence gloves. I never did,” failed O.J. prosecutor Marcia Clark tells”Dateline NBC” in a TV special airing this week. “That was [Darden’s] call. … I was miserable from the moment that Chris said, ‘No, I’m doing this.’ And I never expected anything good to come of it.”

Unbelievable. How petty, unfair and low of Clark at this late date to start trying to blame others on the prosecuting team for losing a murder case that should have been won! It is decades later, the story is part of U.S. legal, racial and cultural lore, and everyone has known that Darden was tricked into the bloody gloves trap by Johnnie Cochran for almost all of that time. There is no justification for Clark to turn on her colleague now.

Clark is hardly blameless herself: she was the genius who put Mark Furman on the stand. I watched the whole trial (I was out of work and sick at the time), and the entire prosecution was botched. This was a reasonably competent team of local prosecutors chosen less for their superior skills than for their race and gender, against a team of wily, experienced, high-priced defense attorneys way, way out of their league who made Darden and Clark look like first year law students. Helped by an inept and over-matched judge, Darden and Clark were both embarrassed and out-lawyered.

It was a tragedy for both of them: neither  has recovered professionally or emotionally. They should be supporting each other; neither has standing to point fingers, but never mind that: professionals on a team don’t do this to each other, not when they have been part of a team.

I can’t be too hard on Clark. She’s a broken woman, bitter and angry, not just because she let a brutal double-killer escape a guilty verdict, but also because she failed on national TV and was professionally humiliated. Turning on Darden now is as sad as it is nasty. It is also a betrayal.

And speaking of gloves:  when Mookie Wilson’s dribbler rolled under  Bill Buckner’s glove in Game 6 of the 1986 World Series, Buckner became an infamous goat, abused in Boston and ridiculed everywhere else. Buckner was bitter and angry about it, but he never tried to deflect blame upon his team mates, several of whom were as responsible for losing that game and, the next day, the World Series as he was. That was 30 years ago, and he still hasn’t pointed an accusing finger at his manager, John McNamara, who had lifted him for a more mobile fielder in every ninth inning with a lead that whole season, except that one; or at the choking rookie reliever, Calvin Schiraldi, who couldn’t get the last out with the bases empty and a two run lead;or at ace Roger Clemens, who begged out of the game with a blister, or at Rich Gedman, who missed a catchable pitch that let the tying run score that inning. No, Bill Buckner has accepted all of the blame, not happily, because it has adversely affected his family and career, but without ever turning on his team mates.

That’s because he is an honorable, fair, trustworthy professional.

Marsha Clark isn’t.

 

 

25 thoughts on “Ethics Dunce: Marcia Clark

  1. Holy crap, you just compared someone losing a SPORTS GAME to someone losing a case against someone who almost certainly killed two innocent people. Not sure where you found the stones to do that, but congrats on the big brass ones.

    The OJ case was horridly botched, for sure. But it was by police work for at least 40% of that blame. The prosecution can only take maybe 30%. One can’t help but to feel for Chris Darden, given the position he was put in, but he always had a voice. He could have withdrawn at any point, but then it’s easy to make Marcia Clark the great shrew. I don’t agree with her throwing him under the bus on that one, but she’s also had to bear the burden of the rest of the case’s failures. Was Darden not responsible for any of them?

    • Not the point. At all. And comparing similar parts of dissimilar events is called “analogizing.” Lawyer do it all the time. The subject: team that lose when one member is the focus of blame for the loss. In baseball, losing a World Series is as bad a loss as there is, just like losing a high profile televised case of the century is as bad a loss a prosecutor can have. It is a precise and accurate analogy. Your complaint makes as much sense as saying, “But Marcia Clark doesn’t have a moustache like Buckner.”

      • Do you think that on balance it was a positive or a negative for America that the trial was televised, Jack? The ethics (and Constitutionality) of televised trials notwithstanding, and through the lens of history, Good Thing or Bad Thing?

  2. They are going through the trial again on FX, An American Crime Story: The O.J. Simpson Trial, and Clark is undoubtedly smarting from her portrayal on that show, where it is really highlighting all the mistakes made by the prosecution, the infighting of the Dream Team, and the sheer force of nature that was Johnnie Cochrane. But it is putting her back in the spotlight again, and she needs something to tell herself so she can face herself in the mirror. Though I think, for the record, the case was no good due to Fuhrman’s involvement. Once he took the 5th after being asked if he planted evidence in this case, playing perfectly into the defense storyline about tainted evidence, everyone could have just gone home. It was a wrap. Enough reasonable doubt to drive a truck through.

    • But that supposition was ridiculous. At the time Furmin supposedly planted evidence, the police had no way of knowing where Simpson was when the murders took place. It made no sense whatsoever: why would Furmin or any officers, do this to “get” a famous. beloved football star? What if they did that, and a traffic stop stumbles on the real killer? It was just a race card, anti-cop strategy, good defense work, but nonsense. Furmin doesn’t need to plant evidence, and was veteran enough to know that if you do, it’s to get someone you know is guilty. At that point, he couldn’t.

      • The Rampart scandal, which involved planting evidence, was blown open only four years later.

        But this sort of thing was not limited to the LAPD, nor did it end at the time. Ted Stevens was prosecuted just a decade after the Rampart scandal, A year later, Judge Emmet G. Sullivan said, ““In nearly 25 years on the bench. “I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.”

        then of course there was the prosecution against Rick Perry.

        So the answer to why Fuhrman would ” do this to get a famous. beloved football star” is the same answer of why his fellow officers planted evidence in the Rampart scandal. It is the same answer why those who prosecuted Ted Stevens engaged in ” mishandling and misconduct”. It is the same answer why a prosecutor would prosecute Rick Perry for abuse of power when said abuse consisted of threaten the use of lawful powers if a drunk driving politician did not resign, a theory that no legal expert would claim would even get tested in trial.

        As for having “no way of knowing where Simpson was when the murders took place”, that would be beside the point. If a ” a traffic stop stumbles on the real killer”, the planted evidence just disappears, never to be seen by anyone outside the LAPD.

        • It’s nothing at all like those cases! This was an active murder investigation, with unknown facts! You are talking about, with Stevens, a sloppy case against a genuinely corrupt politician, and with Perry, a bogus case brought for political reasons. Those last two cases also didn’t involve police, or planting evidence. It’s an apple, a banana and a Volkswagen.

      • Fuhrman was something like the eighteenth cop on the scene and the media was there when he arrived. Why that wasn’t played up, I dunno. You are right that putting him on the stand was a bad idea, and so was to have him O.J. don the gloves. Clark and Darden destroyed themselves and have no one to blame BUT themselves. Maybe Garcetti should have picked a different prosecutorial team, but he chose who he chose and they were under an obligation to do the best they could. Judge Ito didn’t control the case very well, and could have taken lessons from the judge who handled the civil trial, who didn’t permit any baloney.

        Turning on each other and blaming one another is unfortunately par for the course in the legal field. Many was the time in private practice that I saw a partner throw an associate under the bus or a senior partner throw a junior one under the bus when a case that they were both working on went bad. Many was also the time I saw a lawyer higher up the letterhead bail on a case he knew was a loser so that a lawyer lower down the letterhead would get the blame when it ended in the inevitable loss rather than him. Frequently these were the same type of bosses who would toss you out of their offices if you came to them with a question, barking that “you have the same damn license I have! FIGURE IT OUT!” or sit you down for an hour-long ballbreaking session after an order or opinion came in, win, lose or draw.

        I will never forget the hour I spent with no fewer than three higher-ups chewing me out after a decision came down from the Appellate Division in which I won the case handily, but some evidence they would have liked to have seen as part of the record (but had not said so earlier) wasn’t part of it. Today I would have probably snapped that “this isn’t a damn math class, you don’t get to deduct points for me not showing every goddamn step of how I got the answer. Take the damn win and close the file.” There was absolutely no loyalty by anyone to anyone under that particular Corporation Counsel, who was only interested in looking perfect in front of the mayor, so even a win that was off-script was cause for a reprimand.

        P.S. How can you talk about Buckner and not mention Scott Norwood and “No good! Wide right!” in the 1991 Super Bowl? One can only imagine how he must have felt stepping up there knowing that, as much because of the rest of the team as himself, he was going to be either the hero or the chump. He was the chump, and, despite the next season going well, was waived off the roster and vanished.

      • But that supposition was ridiculous. At the time Furmin supposedly planted evidence, the police had no way of knowing where Simpson was when the murders took place. It made no sense whatsoever: why would Furmin or any officers, do this to “get” a famous. beloved football star? What if they did that, and a traffic stop stumbles on the real killer? It was just a race card, anti-cop strategy, good defense work, but nonsense. Furmin doesn’t need to plant evidence, and was veteran enough to know that if you do, it’s to get someone you know is guilty. At that point, he couldn’t.

        Fuhrman had been called to Nicole Simpson’s house before for domestic violence, so he was already very familiar with the situation. When you have a murder, by stabbing, in a environment where there has been previous domestic abuse, it doesn’t take a brain surgeon to immediately suspect the ex-husband. He was just playing the odds. In the unlikely event it turned out to be someone else, the “missing” glove could disappear.

        But in 1977 Fuhrman’s assignment was changed to East Los Angeles, and his evaluations began to show some reservations. “He is enthusiastic and demonstrates a lot of initiative in making arrests,” a superior wrote at the time. “However, his overall production is unbalanced at this point because of the greater portion of time spent in trying to make the ‘big arrest.’ Dr. Koegler wrote, “After a while he began to dislike this work, especially the ‘low-class’ people he was dealing with. He bragged about violence he used in subduing suspects, including choke holds, and said he would break their hands or face or arms or legs, if necessary.”
        http://www.newyorker.com/magazine/1994/07/25/an-incendiary-defense

        This is a very good article, written at the start of the OJ trial, focusing on Fuhrman. He was a known quantity by the time he was put on the stand. Of note, the defense had already started investigating his (apparently very well-known) racist past before they had even hired Cochran. I think his racism, coupled with him taking the 5th on the planting evidence question, raised reasonable doubt, before even getting to the gloves. But there wasn’t a lot of ways around it. If the prosecution didn’t call him to the stand first, the defense would have done it anyway.

  3. I wonder whether O.J. has been suffering from CTE all these years. Hence the violence and self-destructiveness.

    “This was a reasonably competent team of local prosecutors chosen less for their superior skills than for their race and gender, against a team of wily, experienced, high-priced defense attorneys way, way out of their league who made Darden and Clark look like first year law students. Helped by an inept and over-matched judge, Darden and Clark were both embarrassed and out-lawyered.” Amen. It was painful to watch.

    Reasonable doubt, my ass.

    • Weeellll…legally, there was reasonable doubt. Johnny was right: the gloves did it all by themselves. This is my favorite example of where we know a someone is guilty, but it was not proven: he hasn’t been proven guilty beyond a reasonable doubt in a court of law. He’s juts obviously guilty. Nothing wrong with saying so.

      • I thought “they did not fit” (this was before rap became big, wasn’t it? But after Cassius Clay/Muhamed Ali and “[something] like a butterfly, sting like a bee”) because they had been blood soaked and dried, plus O.J. was wearing latex gloves at the time, plus he was hamming it up as if he was doing an Avis ad. Why give a professional actor a chance to act on the stand?

          • The prosecution tried to explain it away by claiming that the gloves shrank. And yet, this would only beg the question of why they did not already know that, and if so, what was the purpose of trying the gloves on anyway?

            Defense attorney Robert Shapiro saw that the gloves would be a tight fit on his hands (which were smaller than Simpson’s) But the defense. asking Simpson putting on the gloves (aside from the likelihood of the prosecution pointing out that the gloves shrank) would look like they were trying to manipulate the evidence in front of the jury.

            • The gloves shrank (they had been blood soaked), Simpson was wearing vinyl gloves, and it is also easy to hold your hands in such a way as to make gloves seem tighter than they are. If the defense has asked Simpson to put on the gloves, the prosecution would have raised the shrinkage issue, which was valid.

              • Which begs the question of why the prosecution would ask Simpson to try on the gloves if they knew that the gloves shrank. If they did not know, this begs the additional question of how they could not have known that, given that it would be trivially easy to find out (comparing the gloves at the time with the measurements taken when the gloves were first found.).

  4. OJ was covering up for his son, who did it, and is why the gloves didn’t fit. Although I was working at the time (during the trial), we would take our lunch break and discuss the trial. I worked for the City, so we had to adhere to the strict policy of hiring a balance of minorities. My point being that it was really interesting to hear their thoughts on the case, as it was unfolding. As for Clark talking about this now? She and it are old news.

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