I never got to see all ten episodes of last year’s ambitious and star-studded mini-series about the O.J. Simpson trial before this weekend. Thanks to Netflix, I was able to watch them all in two nights. I watched most of the televised trial at the time, so the program brought back a lot of bad memories.
Overall the production was excellent, and some of the casting was creepily good, especially Sarah Paulson as Marcia Clark, Sterling K. Brown as Chris Darden, Kenneth Choi as Judge Ito, Courtney B. Vance in a magnificent portrayal of Johnnie Cochran, Rob Morrow as
Barry Scheck, Robert Morse, unrecognizable as Dominick Dunne, and Joseph Siravo as Fred Goldman. Unfortunately, Cuba Gooding, Jr., an excellent actor, is so unlike O.J. that it kept reminding us that this was a TV show. Nathan Lane and David Shwimmer also were unable to disappear sufficiently into their roles as F. Lee Bailey and Robert Kardashian. I couldn’t help thinking of “The Bird Cage” and “Friends.”
The script was remarkably even-handed, and for the most part, accurate. However, there were three legal ethics howlers that require some exposition, as well as some other matters that came to mind.
1. The Defense’s Secret Redecoration of O.J.’s home.
In the episode “The Race Card,” Johnnie Cochran was shown redecorating O.J. Simpson’s house before the jury came for a judge-approved viewing. Pictures of half-nude models were replaced by benign photos of Simpson’s mother and children, and Cochran scattered pieces of African art around the rooms, taken from his own collection.
Could the lawyers do this? Of course not! It’s a visual lie, and an attempt to mislead the jury. Ito ordered that the heroic statute of Simpson in his back yard be covered with a sheet to avoid biasing the jury in favor of the defendant. Had the prosecution team suspected that Cochran had pulled such a stunt, as the dramatization suggested, it would have alerted the judge, a mistrial would have been likely, and Cochran as well as every lawyer involved would have faced serious bar discipline.
The question is, did this really happen as portrayed? Defense attorney Carl Douglas said in a Dateline NBC’s special THE PEOPLE vs. OJ SIMPSON: What the Jury Never Heard that it did, and that he organized the redecoration. Douglas said the intention was to make the estate look “lived-in and stand with all of its regalness so that the jurors would say ‘O.J. Simpson would not have risked all of this for this woman.'” Douglas said that “photos of Simpson with white women were swapped out for pictures of him with black people. A Norman Rockwell painting from Johnnie Cochran’s office and a bedside photo of Simpson’s mother were placed in prominent view.”
Douglas should be suspended from the practice of law at the very least for this confession of outrageous ethics misconduct. (Cochran, who is dead, is beyond punishment.) Clark, Darden and Ito also failed their duties to justice and the public by allowing such a deception to warp the jurors’ perceptions.
2. The Defense’s Opening Statement
In his opening statement for the Simpson defense, Johnny Cochran is shown provoking a conniption by prosecutor Bill Hodgeman when Cochran refers to defense witnesses he intends to call that the prosecution had never been told about, a serious breach of procedure, ethics and professionalism. What the mini-series never revealed is that many of those witnesses were never called at all. A lawyer telling the jury that he intends to present evidence and witnesses to prove his case and then failing to produce them is unethical.
Even at the time, commentators flagged this as unethical practice. Cochran should have been disciplined by the California bar, but as is often the case with bar associations, policing the profession was judged to be secondary to public relations.
3. Cochran’s Closing Argument
In this instance, the script misrepresented the facts. A big deal was made over the fact that Ito only allowed a few lines from the infamous Mark Fuhrman tape to be entered into evidence, yet the show had Cochran quoting additional inflammatory sections in his closing during his attack on the L.A. police detective. That didn’t happen. If it had, a mistrial would have been unavoidable. A lawyer can’t introduce new evidence in a closing argument, and introducing statements that the judge has specifically excluded as prejudicial would be a stunning breach of ethics.
4. O.J. and CTE
It wasn’t an issue at the time of the trial, but watching the series, I found myself wondering if Simpson’s criminal post-football conduct wasn’t related to the head trauma he received on the playing field. Interestingly, Dr. Bennet Omalu, the neuropathologist whose discovery of chronic traumatic encephalopathy in football players inspired the movie “Concussion,” told ABC News last year that “O.J. Simpson is more likely than not to suffer from CTE. I would bet my medical license on it.”
5. Payback for Rodney King
Again, I don’t recall analysts in 1995 suggesting this, and the mini-series didn’t exactly do so either, except to emphasize the black community’s distrust of the L.A. police department and the fear that many had that a guilty verdict might reignite race riots in the city. Last summer, however, in an interview aired on NPR’s “Fresh Air”, former Simpson trial juror Carrie Bess was asked whether “there are members of the jury that voted to acquit OJ because of Rodney King.”
“Yes,” she answered, and revealed that she was one of them.
Carrie Bess should hide her head under a bag.
6. The Verdict
Simpson, I was again reminded, is the perfect example of a guilty criminal who still should have been acquitted. The combination of the glove fiasco, the unreliability of the way evidence was gathered at the crime scene and the fact that the lead detective was a virulent racist created enough reasonable doubt to justify acquittal. An incompetent prosecution did not prove its case. That one or more of the jurors voted to allow a double murderer walk free out of racial spite is depressing as well as disgusting, however. The verdict may have been another example of an ethical decision made for unethical reasons.
_________________________
Ethics Alarms 
Jack,
One day, someone will explain to me how those gloves were “too small.” Even as a child who saw it live on TV, I remember screaming to my dad “Look, they fit!” The miniseries even portrayed Darden as agreeing they did. No good.
In other news, do you know if the Cochran line to Darden “Nigger, please.” after Darden’s speech against allowing use “nigger” in open court is based on an actual account by Darden, Clark, or Cochran? As an ad-lib, it worked perfectly, but it was also something I could have seen actually coming out of his mouth in that context. Just curious.
-Neil
I don’t know. I assume it’s accurate, because Darden was consulted on the script, but who knows? It might be in one of the books by Darden or Cochran.
In other news, do you know if the Cochran line to Darden “Nigger, please.” after Darden’s speech against allowing use “nigger” in open court is based on an actual account by Darden, Clark, or Cochran?
Per the court transcripts, Darden, and other court observers, it is accurate.
One day, someone will explain to me how those gloves were “too small.” Even as a child who saw it live on TV, I remember screaming to my dad “Look, they fit!” The miniseries even portrayed Darden as agreeing they did. No good.
All the lawyers, prosecution and defense, agree that the gloves were too small. They disagree on the cause. But both Shapiro and Cochran tried the gloves on themselves, and they noted that the gloves were too tight on them, and their hands were smaller than Simpson’s hands, which is why they wanted Simpson to try on the gloves in the first place.
Everyone agreed on seeing the wrong thing. They fit on his hands to the point that he could grasp and hold a weapon. Tight or not, that isn’t the definition of “fitting.”
As I have had explained to me ad nauseum by a buddy who is a legal aid, “Not Guilty” does not equate with “Innocent”. It just means what Jack said, the prosecution failed to make it’s case beyond a reasonable doubt. Heck, by the time Fuhrman finished taking the fifth, I had some doubts.
The O.J. trial was a depressing episode in my life. I can remember working in a largely black school while the tv was on the day of the verdict in the lunch room. I watched the verdict being delivered and the black teachers aides clapping and cheering after the verdict was announced. I quietly left the room feeling shocked and saddened.