An Albatross among Attorneys

This week is the twentieth-anniversary of the chase leading to our “Trial of the (Last) Century.” While most now accept that O.J. Simpson committed the crimes few will hold to account the person who committed the travesty of justic -- lead prosecutor Marcia Clark.

Every courtroom lawyer must know you never try the evidence, you always try the jury. The reason being,that  juries can do anything; even set a guilty man free. Should an attorney have the best evidence in the world, if she doesn’t utilize common sense she probably won’t earn a conviction. In this trial, Clark was the antithesis of sensibility and by innumerable mistakes lost a winnable case. Here are a handful of her greatest and most stunning blunders:

1. Overreliance on cutting-edge technology before high-school graduate jurors -- Contemporary juries often expect scientific advances seen on television to be introduced at trial. This creates difficulty due to tightly constrained prosecution budgets and the fact many television breakthroughs are make-believe. However the expectation persists and it is termed the “CSI Effect.”

In 1995 what may be called the “Anti-CSI Effect” was pervasive in the sense that DNA seemed to be science-fiction. (New York courts had only allowed DNA evidence the year prior.) Yet Marcia Clark latched on to this form of proof as if it were the only thing standing between O.J. and absolute freedom.

Emphasis on DNA largely overshadowed blood, fingerprints, shoe patterns, and eyewitness testimony. All of the latter were introduced, but ought to have been the fulcrum of the case. Instead, each was an afterthought to an emerging technical science even few lawyers understood at the time. Moreover, this was done before a jury which included a majority with only high-school educations.

2. Looks matter, especially when you look as if they do -- There is no delicate way of stating Marcia Clark is a physically unattractive woman. Thus her totally ineffective yet utterly distracting narcissism was infuriating during proceedings.

Rather than accepting that she was unappealing and compensating for this deficiency (and it most definitely is a deficiency before juries) by concentrating on faultless presentation she was instead seduced by the cameras to the extent she altered her appearance virtually every week.

In this endeavor she became a laughingstock among attorneys and lost credibility before jurors.

3. Attempts to burnish her bona fides by playing Perry Mason Kato Kaelin was a part-time actor and full-time hanger-on in the Simpson entourage. His firsthand testimony was in many ways damning; one example being hearing an apparent O.J. return home through an alley on the evening of the crime.

Yet as fan-in-residence Kaelin had much to lose if his pal went to prison. Additionally he had become a D-list celebrity in his own right with a national shopping-mall tour and every reason to embellish his fame. Consequently, Kato hedged his testimony and was ingratiatingly affable in answer to any question from either attorney.

Marcia Clark took this with all the venom of a scorned lover since Kaelin was technically a witness for the prosecution. She became livid when he drew out his responses and attempted to appear as charming as possible for viewers at home. Her recourse was to hold this would-be everyman as a hostile witness and pull out her very best “tough prosecutor” act.

To an objective lawyer it was obvious Kato Kaelin wasn’t being a recalcitrant testifier but simply being Kato Kaelin mugging for the audience. Her self-defeating maneuver repelled those she was endeavoring to convince, confused many at home and bemused anyone with professional experience. Forcing a witness give the response you demand is not the same as having the jury hear the answer you desire.

4. If it doesn’t fit, prepare the jury beforehand – How any trial might continue eleven months without its head prosecutor thinking the accused might be less than eager to assist in his own conviction is beyond me. But it seems that this startling realization never occurred to Clark.

Not once did she consider latex gloves make putting on snug garments difficult. Not once (until after the fact) did she investigate what effect arthritis medication had on inflaming joints. Not once did she think leather is a pliant material easily shaped.

It would seem not once did she ever role-play the scene with subordinates before she enacted a fitting on the fly before millions of people. If there was another single moment so eminently foreseeable, so completely avoidable, and at the same time so utterly destructive to a single case I’ve never heard of it.

In order to defuse the situation all she needed to do was put on an expert witness to testify what occurs when gloves become soiled or the effect of resistant latex. Then even if Clark never had Simpson make the effort, Cochran would have been thwarted in inquiring why prosecutors never asked his client to try on the gloves. That, and Johnny would have been deprived of the most famous line in legal history.

5. Ethnicity trumps exhibits – When the evidence fails, argue the emotion. Marcia Clark was well aware the defense wanted a jury of black women. She did little to nothing to prevent them from getting it because Clark had tried several earlier cases and thought she had a rapport with women of color.

So in the bluntest possible terms, a white woman from the right side of the tracks thought she was going to convince eight black women from the wrong side of the tracks to convict a black man who each likely saw as a boyfriend/husband/father they thought also unfairly targeted by a “racist” L.A.P.D.; just like poor Rodney King less than five years earlier. Ahem.

It takes a certain kind of cluelessness about the real world to reach that level of self-delusion, and reportedly after seeing the panel sworn in Simpson said to his legal team, “Damn, if I’m convicted by this jury then maybe I really did do it.”

From the beginning, or at least as soon as D.A. Garcetti moved the case downtown, the only strategy was to minimize jurors who identified with O.J. (though not necessarily based on race). That was a Sisyphean Task given the locale. However, it at least required understanding of what one was up against coupled with attempts to counteract it. Clark demonstrated neither the realization nor the resistance which might have offered at least the pragmatic opportunity for a hung jury followed by a later retrial.

In summation, Marcia Clark was given an extremely winnable case; if she had stuck to tried and true methods and didn’t lose herself in the hype. Instead, she lost her case in hyper-scientific evidence for the time and ran around like a chicken with a new head-coif before the klieg lights.

Mercifully Simpson is now in prison though it does little to salve the grief of the Goldmans, who were by far the most unfairly-treated victims of this entire ordeal. That Clark added to their pain by her complete ineffectiveness is disgusting and the fact so few people ever denounce her for such a contemptibly pathetic performance is disgraceful.

It is something worth remembering even twenty years later.

Guy Somerset writes from somewhere in America. He is a lawyer by profession.

This week is the twentieth-anniversary of the chase leading to our “Trial of the (Last) Century.” While most now accept that O.J. Simpson committed the crimes few will hold to account the person who committed the travesty of justic -- lead prosecutor Marcia Clark.

Every courtroom lawyer must know you never try the evidence, you always try the jury. The reason being,that  juries can do anything; even set a guilty man free. Should an attorney have the best evidence in the world, if she doesn’t utilize common sense she probably won’t earn a conviction. In this trial, Clark was the antithesis of sensibility and by innumerable mistakes lost a winnable case. Here are a handful of her greatest and most stunning blunders:

1. Overreliance on cutting-edge technology before high-school graduate jurors -- Contemporary juries often expect scientific advances seen on television to be introduced at trial. This creates difficulty due to tightly constrained prosecution budgets and the fact many television breakthroughs are make-believe. However the expectation persists and it is termed the “CSI Effect.”

In 1995 what may be called the “Anti-CSI Effect” was pervasive in the sense that DNA seemed to be science-fiction. (New York courts had only allowed DNA evidence the year prior.) Yet Marcia Clark latched on to this form of proof as if it were the only thing standing between O.J. and absolute freedom.

Emphasis on DNA largely overshadowed blood, fingerprints, shoe patterns, and eyewitness testimony. All of the latter were introduced, but ought to have been the fulcrum of the case. Instead, each was an afterthought to an emerging technical science even few lawyers understood at the time. Moreover, this was done before a jury which included a majority with only high-school educations.

2. Looks matter, especially when you look as if they do -- There is no delicate way of stating Marcia Clark is a physically unattractive woman. Thus her totally ineffective yet utterly distracting narcissism was infuriating during proceedings.

Rather than accepting that she was unappealing and compensating for this deficiency (and it most definitely is a deficiency before juries) by concentrating on faultless presentation she was instead seduced by the cameras to the extent she altered her appearance virtually every week.

In this endeavor she became a laughingstock among attorneys and lost credibility before jurors.

3. Attempts to burnish her bona fides by playing Perry Mason Kato Kaelin was a part-time actor and full-time hanger-on in the Simpson entourage. His firsthand testimony was in many ways damning; one example being hearing an apparent O.J. return home through an alley on the evening of the crime.

Yet as fan-in-residence Kaelin had much to lose if his pal went to prison. Additionally he had become a D-list celebrity in his own right with a national shopping-mall tour and every reason to embellish his fame. Consequently, Kato hedged his testimony and was ingratiatingly affable in answer to any question from either attorney.

Marcia Clark took this with all the venom of a scorned lover since Kaelin was technically a witness for the prosecution. She became livid when he drew out his responses and attempted to appear as charming as possible for viewers at home. Her recourse was to hold this would-be everyman as a hostile witness and pull out her very best “tough prosecutor” act.

To an objective lawyer it was obvious Kato Kaelin wasn’t being a recalcitrant testifier but simply being Kato Kaelin mugging for the audience. Her self-defeating maneuver repelled those she was endeavoring to convince, confused many at home and bemused anyone with professional experience. Forcing a witness give the response you demand is not the same as having the jury hear the answer you desire.

4. If it doesn’t fit, prepare the jury beforehand – How any trial might continue eleven months without its head prosecutor thinking the accused might be less than eager to assist in his own conviction is beyond me. But it seems that this startling realization never occurred to Clark.

Not once did she consider latex gloves make putting on snug garments difficult. Not once (until after the fact) did she investigate what effect arthritis medication had on inflaming joints. Not once did she think leather is a pliant material easily shaped.

It would seem not once did she ever role-play the scene with subordinates before she enacted a fitting on the fly before millions of people. If there was another single moment so eminently foreseeable, so completely avoidable, and at the same time so utterly destructive to a single case I’ve never heard of it.

In order to defuse the situation all she needed to do was put on an expert witness to testify what occurs when gloves become soiled or the effect of resistant latex. Then even if Clark never had Simpson make the effort, Cochran would have been thwarted in inquiring why prosecutors never asked his client to try on the gloves. That, and Johnny would have been deprived of the most famous line in legal history.

5. Ethnicity trumps exhibits – When the evidence fails, argue the emotion. Marcia Clark was well aware the defense wanted a jury of black women. She did little to nothing to prevent them from getting it because Clark had tried several earlier cases and thought she had a rapport with women of color.

So in the bluntest possible terms, a white woman from the right side of the tracks thought she was going to convince eight black women from the wrong side of the tracks to convict a black man who each likely saw as a boyfriend/husband/father they thought also unfairly targeted by a “racist” L.A.P.D.; just like poor Rodney King less than five years earlier. Ahem.

It takes a certain kind of cluelessness about the real world to reach that level of self-delusion, and reportedly after seeing the panel sworn in Simpson said to his legal team, “Damn, if I’m convicted by this jury then maybe I really did do it.”

From the beginning, or at least as soon as D.A. Garcetti moved the case downtown, the only strategy was to minimize jurors who identified with O.J. (though not necessarily based on race). That was a Sisyphean Task given the locale. However, it at least required understanding of what one was up against coupled with attempts to counteract it. Clark demonstrated neither the realization nor the resistance which might have offered at least the pragmatic opportunity for a hung jury followed by a later retrial.

In summation, Marcia Clark was given an extremely winnable case; if she had stuck to tried and true methods and didn’t lose herself in the hype. Instead, she lost her case in hyper-scientific evidence for the time and ran around like a chicken with a new head-coif before the klieg lights.

Mercifully Simpson is now in prison though it does little to salve the grief of the Goldmans, who were by far the most unfairly-treated victims of this entire ordeal. That Clark added to their pain by her complete ineffectiveness is disgusting and the fact so few people ever denounce her for such a contemptibly pathetic performance is disgraceful.

It is something worth remembering even twenty years later.

Guy Somerset writes from somewhere in America. He is a lawyer by profession.