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Notes -
As I mentioned the other week, my girlfriend and I recently watched the miniseries American Crime Story: The People vs. OJ Simpson. On Friday night we sat down to watch episode 7, and found it so absorbing that we wound up staying up til 4 a.m. to finish the remaining three episodes.
I was particularly intrigued by how the series presents one of Simpson's defense attorneys, the (in)famous Johnnie Cochran. The portrayal is nuanced: the series doesn't shy away from acknowledging his philandering and accusations of domestic abuse, nor depicting the various underhanded techniques he employed in trying to secure an acquittal for Simpson (redecorating Simpson's house to mislead the jury into thinking Simpson is a pillar of the black community; during cross-examination, speculating on the basis of nothing at all that Nicole Brown and Ron Goldman may have been murdered by cartel members); but also depicts him as a tireless advocate for black civil rights, who takes on OJ's case specifically to call attention to police racism and misconduct within the LAPD and within American society more broadly. It doesn't hurt that Courtney B. Vance gives probably the best performance in the show, effortlessly capturing Cochran's black-preacher charm and flair for the theatrical.
All the same, I couldn't help but think this portrayal was sort of - white-washed? From what I've read of the real Cochran, he strikes me as every negative stereotype about cynical, dishonest lawyers rolled into one, who took on OJ's case first and foremost to enrich himself (both directly in his fees from OJ, and indirectly in the trial's publicity making him into a household name) and secondly owing to what we now euphemistically call "in-group preference" i.e. racism. I don't think (as the show seems to imply) that the real Johnnie Cochran thinks that black men who have actually commited heinous crimes ought to be punished, but that the American justice system is so riddled with racism and white supremacy that it is impossible for us to have any real confidence that the evidence mounted in their prosecution was not compromised, planted or coerced. That, at least, is a defensible position, and arguably more defensible in 1995 than today. But I don't think that's what the real Johnnie Cochran thinks, or thought at the time: I think he thinks that OJ is black, therefore he should not be sent to prison (certainly not for murdering two white people; maybe he'd think otherwise if OJ had murdered someone close to Cochran) and any methods are justified in trying to accomplish that goal, no matter how dishonest or underhanded. I think the show was essentially sanewashing the real Cochran.
Am I being unfair to Cochran? People who know more about the real man than I do, do you think that's a reasonably accurate characterisation of his worldview?
This is a bit tangential to your actual question, but it’s a point I’ve never had the opportunity to bring up here. People forget the extreme degree to which Detective Mark Furhman wrecked the prosecution’s case. It’s often remembered and reported that he took the Fifth Amendment when he was cross-examined, but no one talks about the fact that he took the Fifth when asked if he planted evidence in that specific case. That’s huge. It’s a giant red flag to the jury when the lead murder detective won’t answer whether he literally framed the defendant. Now I suspect OJ actually did do it, and that Furhman was just paranoid about his already looming perjury charges and was just Fifth Amendment-ing everything. Or maybe he engaged in some fairly standard (at the time) touching up of the scene to strengthen the case, like moving the glove to a more incriminating location in the alley, or daubing some of the victim’s blood onto OJ’s Bronco. But if I was a juror, the fact that the lead detective can’t say whether he planted evidence is pretty much already enough reasonable doubt for me to acquit. And when you keep that in mind, a lot of Cochran’s loopier theories about preservatives in the blood samples and the glove not fitting suddenly start to sound a lot more plausible and carry a lot more weight. Please keep that in mind before thinking of the jury as a bunch of dumbasses.
Also I highly recommend Season 3 about the Monica Lewinsky scandal, I thought it was very underrated. Clive Owen should have won an Emmy for playing Bill Clinton, that’s a role that’s very difficult to play without turning it into a Saturday Night Live sketch. And Beany Feldstien might initially seem like poor casting for Lewinsky but she does an amazing job.
The jury never knew about any of that. After the tapes came out, the defense wanted to admit them to demonstrate that Fuhrman lied about his use of racial epithets and wanted to call additional witnesses who would testify to his use of them. This is an interesting story in and of itself, but the upshot is that the defense wanted to recall Fuhrman so they could cross-examine him about the newly discovered evidence. Given that the goal of such a cross-examination would be to show that Fuhrman had committed perjury, there was a strong likelihood that he would take the fifth upon being questioned about it. When the fifth is invoked in a criminal trial, the judge will instruct the jury that they can't make any negative inference from it. Courts aren't stupid, though, so if they anticipate that a witness will take the fifth, they will insist that the witness be questioned outside the presence of the jury, and if the witness indeed takes the fifth, then they won't testify in open court.
So when Fuhrman took the fifth, it wasn't during the trial proper, but during a hearing to determine whether he could be recalled. Now, if a witness intends to take the fifth, they can't answer any questions, period. If they take the fifth as to one question then start answering others, they are said to have waived the privilege. So the standard format is that the attorney will ask a few questions, the witness will assert the privilege, the attorney will then ask the witness if he intends to assert the privilege for all the questions, the witness says yes, and the questioning ends. When Gerald Uelman asked Fuhrman if he had planted evidence, Fuhrman couldn't have said no regardless of the situation.
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