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10 takeaways from the O.J. Simpson documentary

O.J. Simpson (L), Johnnie Cochran Jr. (C) and Robe

LOS ANGELES, CA - MAY 8: O.J. Simpson (L), Johnnie Cochran Jr. (C) and Robert Shapiro (R) watch the jury come into the courtroom 08 May during the O.J. Simpson murder trial in Los Angeles. The trial is in the DNA testimony phase by expert Dr. Robin Cotton. AFP PHOTO (Photo credit should read RICK MEYER/AFP/Getty Images)

AFP/Getty Images

Last weekend, I watched all five parts of ESPN’s O.J. Simpson documentary. Even with high expectations arising from the widespread praise the documentary received, it was riveting.

In 1994 and 1995, after the murders occurred and the trial unfolded, I didn’t understand why things happened they way they did, either because I wasn’t able or inclined to pay extremely close attention to the case or because I hadn’t been practicing law long enough to understand how everything pieced together. Now, seven years after wrapping up an 18-year law practice (yeah, I’m old), I’ve got a much better understanding of how it all fits together, and why the Pro Football Hall of Famer walked away from life behind bars.

So in this sort-of-off-topic post, I’ll share 10 things that became clear to me after reliving in two days a case that was a major part of American life for the better part of two years.

1. He did it.

Part Four of the documentary includes a pair of crime-scene photos that on one hand I wish I’d never seen but on the other hand I’m glad I did.

The image of the damage the killer did to the throat and neck of Nicole Brown Simpson tells me everything I need to know about this case: Simpson did it, clearly, unequivocally, and beyond any plausible or implausible doubt.

The deep, gaping wound that nearly decapitated Nicole Brown Simpson reveals a level of raw passion and emotion that rarely if ever is mustered against a stranger. It was extreme overkill, committed either by someone with mental faculties sufficiently warped that it should have been easy to catch the killer or by someone who personally knew Nicole Brown Simpson and harbored a torrent of emotions that, in the wrong place at the wrong time, manifested themselves in the worst way possible.

In this case, it was both. Simpson had the requisite passion for the victim and, in that moment, the necessary lack of sanity to do what he clearly, undoubtedly did.

2. The Rodney King case contributed directly to the outcome.

The brutal beating of Rodney King, an African-American man, by L.A. police officers in 1991, and their subsequent acquittal by an all-white jury in California state court, influenced the Simpson case in a significant way. District Attorney Gil Garcetti opted to try the Simpson case in a portion of the county that would ensure a more diverse jury. Without the King case, a decision to nudge the case toward a much whiter jury pool may have been made.

The King case also ensured that the predominantly African-American jury in Simpson’s case would be receptive to evidence of potential police misconduct. There indeed was plenty of evidence of potential police misconduct -- including the one piece of evidence that, as explained below, ensured an acquittal.

3. The prosecution was outworked.

Great lawyers excel before a judge and a jury. Most cases are won (or lost), however, by the effort expended (or not) away from the courtroom.

Trial work is exhilarating. When court is in session, the trial lawyer serves as the producer, director, writer, and lead actor in a play that unfolds simultaneously with another play aimed at sending a directly conflicting message to the same audience. Throughout the process, the scripts are being constantly rewritten on the fly, with much of the dialogue becoming improvisation.

For most lawyers, the ability to thrive in those moments comes from a willingness to put in hours and hours and hours (and hours) of preparation. Lawyers must have a full mastery of the entire universe of evidence that could be introduced, along with a specific plan for dealing with any evidence that cuts against their preferred message to the jury. Before trial begins, lawyers must think creatively about every possible avenue that the opponent may explore when searching for facts that would support its own message. At trial, lawyers must be ready to act immediately if the case heads down any of the various possible paths that could emerge.

In the Simpson case, the best example of this dynamic came from Barry Scheck’s extensive cross-examination of LAPD criminologist Dennis Fung. Simpson’s lawyers studied hours of tedious, boring video of Fung and his colleagues collecting evidence. Someone eventually spotted an image of Fung picking up a bloody envelope from the crime scene with his bare hands.

The prosecution clearly hadn’t seen it before trial, because Scheck was able not only to point out the flaw in Fung’s procedures but also to set Fung up for the dramatic moment when the video was played, getting him to testify in advance that he didn’t touch the envelope without a glove on his hand.

How about that, Mr. Fung?” Scheck said when the image of Fung grabbing the envelope without a glove on his hand was displayed, before being nudged by Judge Lance Ito into expanding the statement into an actual question. It was the kind of moment that gets tattooed onto the brains of jurors.

Likewise, Simpson’s lawyers compared the photo of a drop of blood collected from a gate at the crime scene three weeks after the murders to a photo of the same gate taken closer in time to the murders. In the earlier photo, there was no blood on the gate, creating suspicion that blood had been added to the gate later, to enhance the case.

Simpson’s lawyers could have found those two photos only be scouring hundreds of images, reviewing each of them carefully and meticulously.

These are just two examples of specific wrinkles in the evidence that Simpson’s lawyers discovered and then devised a way to use. The prosecution either didn’t know about these nuances or wasn’t sufficiently worried about them to have a convincing rebuttal ready to unleash, if needed.

It’s no surprise. For starters, prosecutors don’t get paid by the hour. They’re on salary, so there’s zero financial incentive to grind and grind and grind some more. Likewise, prosecutors are accustomed to running roughshod over court-appointed defense lawyers lacking the ability or the work ethic to do what Simpson’s lawyers did.

Perhaps most importantly, the prosecutors were so confident in the strength of the overall evidence that they believed they didn’t need to spend the time necessary to ensure that Simpson’s team of brilliant, high-priced defense lawyers wouldn’t piece together, methodically but inevitably, enough moments of doubt to create the kind of “reasonable doubt” that circumvents a conviction.

4. Mark Fuhrman wasn’t properly grilled during pre-trial meetings.

Trial preparation consists of more than methodically searching for needles in the opponent’s haystacks. It also requires taking the time to search for potential land mines in your own backyard.

Mark Fuhrman had plenty of them. And the prosecution had reason to know about all of them. However, the prosecution failed to find the worst of them.

Legal analyst Jeffrey Toobin, acting on a tip from his former law professor and Simpson defense lawyer Alan Dershowitz, found the first one. Fuhrman had filed a claim for an early pension from the LAPD based on the notion that the impact of the job had caused him to harbor horribly racist thoughts and attitudes. Toobin’s work culminated in a July 1994 article in The New Yorker outlining the defense team’s plans to paint Fuhrman as sufficiently motivated by race to plant one of two bloody gloves from the crime scene at Simpson’s house.

Amazingly, one of Simpson’s attorneys admitted that the defense team was developing this theory, barely a month after Simpson was arrested and six months before the trial began.

“Suppose he’s actually found two gloves at the murder scene,” the attorney told Toobin. “He transports one of them over to the house and then ‘finds’ it back in that little alleyway where no one can see him.”

It was a Babe Ruth gesture to the centerfield wall by Simpson’s lawyers. In response, the prosecution grooved a fastball through the middle of the strike zone and stood back to watch what would happen.

Here’s what should have happened. As soon as Toobin’s article was published, Garcetti, Marcia Clark, and the rest of the prosecution’s team of lawyers should have summoned Fuhrman for an extended meeting during which Fuhrman would have been pressed aggressively to disclose anything and everything that he has said and/or done that ever could have been characterized as reflecting a racial bias. If done properly, this effort would have resulted in the prosecution knowing about the horribly over-the-top racial remarks made on tape recordings created during Fuhrman’s meetings with a screenwriter.

Instead, the prosecution simply didn’t know about the tapes. Garcetti said so when asked at a press conference about evidence that turned the trial upside down.

“We were not aware of the tapes,” Garcetti said. Asked if Fuhrman should have told prosecutors about the tapes, Garcetti replied, “We were not aware of the tapes.”

Garcetti presumably evaded the question of whether Fuhrman should have told them about the tapes because Garcetti knew that someone would have argued that the prosecutors should have asked Fuhrman the type of questions that would have caused Fuhrman to admit to their existence.

Marcia Clark can blame Fuhrman all she wants for the existence of the tapes, but she should have been aware of them. As the lead prosecutor on the case, Clark should have done everything possible to learn about every shed of evidence that could have supported the obvious plan to create reasonable doubt by suggesting that Fuhrman’s racial biased caused him to try to frame Simpson.

Being aware of the tapes may not have changed the outcome of the case. But the prosecution definitely would have been able to avoid what ultimately became the one specific moment where the case was conclusively lost.

5. Fuhrman’s Fifth Amendment debacle sealed the case.

With F. Lee Bailey masterfully pinning Fuhrman down to a claim that he hadn’t referred to any African-American with the worst racial epithet in the English language, the door was open for Fuhrman’s denial to be contradicted by evidence that he had used the term. Originally, the plan was to have other witnesses testify that Fuhrman used the word. Then came the tapes, and Mark Fuhrman was contradicted by Mark Fuhrman himself.

The defense team then brought Fuhrman back, ready to confront him with the information contained on the tapes. Fearful of a perjury charge, Fuhrman promptly invoked his Fifth Amendment rights and declined to answer. It quickly became apparent that Fuhrman would invoke the Fifth Amendment in response to any and all questions. as a result, Fuhrman was asked the one question that, as a practical matter, ensured an acquittal.

“Did you plant or manufacture any evidence in this case?” Fuhrman was asked.

“I assert my Fifth Amendment privilege,” Fuhrman said.

With Simpson’s lawyers required only to prove reasonable doubt, Fuhrman’s refusal to answer the question of whether he planted evidence was all the jury needed to set Simpson free. While it’s possible, as suggested during the documentary, that Fuhrman framed a guilty man, that would have been a very difficult argument for the prosecution to sell.

6. The prosecution lacked anyone who could truly talk to the jury.

The argument that Fuhrman had framed a guilty man may have been easier to sell if the prosecution had at its disposal a lawyer with the ability to talk frankly and persuasively to a jury of non-lawyers. Johnnie Cochran possessed that skill. Marcia Clark, Christopher Darden, nor anyone else representing the State of California could match it.

During the trial, Clark consistently came off as strident, aloof, irritated, and lacking in self-awareness. (She had a much more pleasant demeanor when speaking on camera during the documentary, even though she was inclined to blame everyone but herself for the outcome of the case.) Darden, an African-American who curiously showed up only after a jury consisting primarily of African-Americans was selected, badly wanted, as explained during the documentary, to “out-Johnnie Johnnie.” Darden simply didn’t have the chops to do it.

The only person who may have been able to deliver a conviction would have been Cochran himself, since he probably would have been able to sell to this specific jury the very simple notion that a killer shouldn’t walk away because, as Cochran may have said, “A bad cop tried to trump up a good case.”

7. Judge Ito was trying to make the conviction “appeal proof.”

Plenty of questions have been raised about the decisions of the presiding judge to allow the Fuhrman tapes into evidence and to exclude information regarding Simpson’s clearly incriminating slow-speed getaway. Ito made those decisions, presumably, for one reason: To seal off potential avenues for reversing a conviction of O.J. Simpson on appeal.

The evidence of Simpson’s guilt seemed to be overwhelming. In cases like these, a decision by the judge to make every key evidentiary ruling in the defendant’s favor leaves the defendant with no viable basis for getting a guilty verdict thrown out later by a higher court.

The problem in this specific case is that Ito’s rulings opened the door for an acquittal, with a man who committed two brutal murders eventually set free.

8. Cochran’s closing argument was over the top -- like many closing arguments are.

The documentary included some strong opinions about Johnnie Cochran’s closing argument, which contained at one point a comparison of Mark Furhman to Adolf Hitler.

It was over the top, they said. It was unethical, they suggested.

That’s fine, but the prosecution at no point objected to Cochran’s tactics. So they can’t credibly complain now if they weren’t willing to fight Cochran in the moment.

An objection wasn’t made at the time because the prosecution surely realized that attorneys are given very broad discretion when making closing arguments. A decision by Judge Ito to overrule an objection to this specific aspect Cochran’s closing would have only emphasized the point he was making -- and it would have given Cochran one final victory just before the jurors retired to deliberate.

9. The system works (sort of), if you have money.

The American system of criminal justice stacks the deck in favor of the defendant, in order to ensure that innocent people don’t get wrongfully imprisoned. This makes it easier for the guilty to avoid responsibility -- if, of course, they have the money to purchase the kind of legal representation that takes full advantage of the various aspects of the system that can deliver freedom to those who don’t deserve it.

Simpson had the money to afford $50,000 per week in fees. He was already loaded, and many learned for the first time through the documentary that Simpson generated roughly $3 million more while signing autographs in jail during the trial.

Most criminal defendants don’t have the resources to mount an effective defense, and few if any have the ability to make money for legal fees while being held without bail. As a result, plenty of innocent people end up being convicted because their court-appointed lawyers lack the skill or the motivation (or both) to fight for a verdict of not guilty.

10. Fred Goldman is the reason O.J. Simpson is behind bars today.

The families of the victims brought a wrongful death civil lawsuit brought against Simpson. Ron Goldman’s father, Fred, pushed it aggressively, resulting in a staggering $33 million verdict after that jury determined, under a much lower standard of proof and with Simpson unable to avoid testifying (where he was caught in numerous lies), that Simpson committed the murders. Fred Goldman then made it his mission to get every last cent out of Simpson, which prompted Simpson to do everything he could to protect his property, wherever it may have been.

This eventually included an effort to recover in Las Vegas memorabilia that had been stolen from him. With the grace of the Keystone Cops and the cognitive skills of Lou Costello, Simpson arranged an armed heist that was sufficiently clumsy to allow the powers-that-be in Nevada to put Simpson where he already should have been -- behind bars, for a long time.

Absent the commitment with which Fred Goldman pursued Simpson, Simpson may never have been in the position to act so brazenly, desperately, and recklessly. Few fathers have worked more diligently to honor the memory of their sons, and anyone who believes in true justice should be grateful to Fred Goldman for applying the same kind of zeal used by Simpson’s lawyers to secure his freedom 20 years ago to push him until he squandered it.