Advertisement

THE O.J. SIMPSON MURDER TRIAL : Substance, Symbols Are Lawyers’ Tools in Molding Jurors : Tactics: In the courtroom drama, final arguments are the grand soliloquies that attorneys draft, often with the skill of playwrights.

Share via
TIMES STAFF WRITERS

Facts and symbols are the flint and steel of final arguments.

A skillful trial attorney knows how to strike them together to create the sparks that will ignite the flame that might be justice--or simply victory. Over the last two days, the events in and around O.J. Simpson’s double-murder trial have generated a shower of such sparks:

* An international audience watched in rapt attention as Marcia Clark emerged as the hollow-eyed voice of reason, her wan appearance the living embodiment of an arduous “search for truth” through science.

* Christopher A. Darden’s conversational tone was a vehicle calculated to take the jurors into the darkly intimate, claustrophobic world of domestic violence.

Advertisement

* Johnnie L. Cochran Jr. arrived at the courthouse accompanied by security guards from the Nation of Islam--not only guarantors of his security, but also potent symbols of black self-sufficiency and rage. When he addressed the jurors, the majority of whom are African Americans, he quoted Cicero, Frederick Douglass and Martin Luther King Jr., employing the rhythms of platform and pulpit, the cadence of black America’s moral discourse.

The sparks generated by their very different but similarly compelling approaches illuminate not simply a dramatic moment in this trial, but also a fundamental tension in Americans’ attitude toward their criminal justice system. And beyond any discussion of lapel ribbons, bags under the eyes or podium rhetoric are the substantive issues of guilt and innocence and justice for two dead people and the man accused of their murders.

How do trial lawyers go about preparing an argument that resolves the tension between the ideals and the prejudices all jurors bring with them into the box?

“How do actors prepare? Everybody is different, and it’s the same with lawyers,” said criminal defense attorney Gigi Gordon. “But whatever process you use, you have to build a narrative or a ladder.

“The uses of narrative are clear. When you tell a story people listen,” Gordon said. “That’s because our culture--particularly nowadays--is an oral one rather than a written one, however much we’d like to pretend otherwise. The electronic media allow information to be handed on by word of mouth. What’s a sound bite? It’s a short, short, short story. That’s why you get it. You get the whole picture and the whole story--beginning, middle and end--right away. Bang!

“Sometimes a defense lawyer can’t tell a story because your client doesn’t have one--at least not one you can tell. So you make the other side climb a ladder. Each rung is an obstacle you’ve placed in the way of your client’s conviction. It’s what about this and what about that? All you can do is hope they slip and fall or just get too tired to make it to the top.” If one assumes, then, that the prosecutors in the Simpson case have adopted the narrative scenario and the defense the ladder, how are they playing so far?

Advertisement

Broadway director Gerald Gutierrez, who won a Tony in June for “The Heiress,” gives the theater in Judge Lance A. Ito’s court a rave.

“Yesterday I had the videotape going all day while I was in a 12-hour rehearsal [for a new play at Lincoln Center]. When I got home, I made a double espresso and watched the whole thing. I thought the costuming was brilliant. At the defense table you have all of those rich, male attorneys, you can see the money spilling over. Marcia in all white and Chris with a little ribbon, the cool, calm representatives of the people of the state of California.

“No one thought Darden would be as good as he was,” Gutierrez said. “The way he laid the foundation for the jury when he told them about the pictures she left in the safe deposit box. I had chills. This was even better than Agatha Christie.”

To Los Angeles playwright Jose Rivera, author of “Cloud Tectonics” and “Marisol,” among other plays, “the prosecution did a great job of putting the audience in the skin of Nicole. They made great theater.” Rivera described Darden’s “use of metaphor to convey a complex problem” as “brilliant.”

“He was appealing to their better nature,” Rivera said. “We all want to see ourselves as heroes. It was a great monologue.

“He painted the final scene with the tools of a playwright,” Rivera said. “Simpson picking up the phone to call Paula from the Bronco and getting no answer. Building the tension. Keeping a state of tension. He used what I thought was a risky sexual metaphor for the murder. The knife blade entering Nicole, the relief Simpson might have felt then. I thought that was risky but he went there.”

Advertisement

Gordon, also a veteran of many such courtroom moments, said: “Marcia created a number of memorable images in her argument, but what Darden did was better because he X-rayed himself. The prosecutors in this case may believe that some of the African American jurors may be resistant to convicting because of what they perceive as the ambivalence about this case in the community. What Darden did was to personify that ambivalence in his own argument and then remind the jurors that he was ‘only doing my job.’ That was a subliminal suggestion to those jurors that they must do the same. You don’t have to like it, you may want to avoid it. But you’re not taking sides; you’re just doing your job.

“If it was a tactic, then it was fascinating,” Gordon said. “But if it reflected his own ambivalence, then it was honesty--which also communicates itself to jurors.”

Leon Wieseltier, literary editor of the New Republic, cited what he sees as a consistent subtext in the presentations of Simpson’s lawyers. “The defense is now playing not only by the law, but also by the primary rule of American culture, which is that victims are by definition innocent. The idea that any victim of racism might also be guilty of a terrible crime is just too much for contemporary culture to consider.

“But bringing racism into this case was bringing in precisely the kind of complication that never could be disentangled from the truth,” Wieseltier said. “If you try to remove that complication, you yourself are made to feel complicit in it.

“Creating this entanglement is the sinister ingenuity that’s possible in a confused multicultural society. The way the defense has set this up now is either Simpson is guilty or Fuhrman is guilty. The notion that both might be guilty of the things of which they’re accused simply doesn’t add up on our current cultural computer.”

Critic and journalist Christopher Hitchens believes that, as with many popular spectacles, the dramatic tension of the Simpson trial involves a kind of inversion in which the larger implication of the scientific testimony has been turned on its head.

Advertisement

“Those who detest racism also suspect the very concept of ‘race,’ ” Hitchens said. “The scientific disproof of race theory lies in the study of blood and of DNA. The DNA chain, now almost fully explored, can identify us as complex individuals, but provides a statistically negligible guide to any person’s ‘race.’ This is a vast breakthrough for civilization.

“It also is an immense breakthrough for the criminal justice system,” Hitchens added. “The admissibility of DNA evidence can and does release many wrongly convicted people; typically those who were victims of arbitrary criminal justice and parsimonious legal aid to begin with. Those who prefer to make DNA a test of racialist innuendo and rumor should be aware of the weapon of justice that they are discarding.

“This is a trial about blood. It would be a tremendous day for America if the jury decided that blood was a forensic question and not a superstitious one,” Hitchens said.

Hitchens, for one, argues that the cultural assumptions that have influenced popular views of the Simpson case also have deformed perceptions of the jury. “Opinion polls, which probably should not be taken during the course of jury trials anyway,” he said, “have assiduously given the impression that white people go on the forensic evidence while black people prefer to decide matters on the basis of emotion and resentment. In other words, one group thinks, the other feels.

“What could be more damaging to democracy and pluralism?”

Advertisement