But a surprising thing happened just before the end of the presentation of evidence last week: the referee moved in and threw a solid right to the defense’s jaw. Judge Lance Ito’s ruling that jurors could consider the lesser charge of second-degree murder considerably brightened a prosecution that in recent weeks was viewing a hung jury as a major victory. The defense wanted an all-or-nothing verdict–meaning that jurors would vote either a first-degree-murder conviction or acquittal. But Ito’s ruling allowing a second-degree conviction gave a potentially divided jury room for compromise (chart).
Before the jurors start verdict bargaining, though, they will sit through at least three or four days of closing statements. Legal experts say that in a case as protracted and emotionally charged as this one–and based largely on circumstantial evidence–the closing arguments assume great importance. As John Martel, a prosecution consultant, told NEWSWEEK, “These jurors are tired, worn out, confused and looking for a guide to clear the path for them. They have forgetton most of what they heard.” Here’s what to look for this week:
It’s almost always better for just one lawyer on each side to give the closing argument. It builds a quicker and firmer bond with the jurors. But in this complex case both sides were likely to divide the arguments–Marcia Clark and Christopher Darden for the state, and, for the defense, Johnnie Cochran and probably Barry Scheck, who will talk about the scientific evidence. The state gives its closing argument first, followed by the defense; the prosecutors are allowed an unanswered rebuttal. Cochran starts with a jury apparently charmed by him. “He’s optimistic, warm, presents a smiling face,” says Stephen Gillers, a New York University Law School professor. Clark, who adroitly laid out the state’s “trail of blood” theory in the opening, will have to curb her appearance of being on a vendetta. As Cochran rightly told NEWSWEEK, “It’s the messengers and the message now.”
The lawyers need a script from Steven Bochco and a manner like Sam Waterston. Failing that, they can at least “connect the dots.” If Clark and Cochran do it right, they won’t simply re-hash the evidence–that’s the quickest way to bore jurors-but wrap it in a theme, like “rush to judgment,” or “trail of blood.”
Judges generally allow lawyers wide latitude. They can’t refer to evidence not in the trial record, nor can they personally vouch for the credibility of a particular witness. But otherwise they can use nearly all the rhetorical–and mechanical–devices available. In this ease, look for lawyers on both sides to use plenty of charts and portions of the videotape of the trial. Says Martel, “The closing argument is the one point in the trial where the lawyer may have an opportunity to commit art.”
In most criminal cases the defense closing statement argues emotion, the prosecution argues the facts. The sheer length of this ease, says Gerry Spence, the famed defense closer-extraordinaire, may give Cochran an advantage: “Simpson has sat there for so long that he has become part of their lives, and they don’t want to kill him.” To counter all that, prosecutors need to hit the emotional buttons too–poignantly invoking the memories of Nicole, the young mother, and Ron, the young man just starting his life.
Different lawyers try different approaches. Some opt for the singles-bar approach, trying to make eye contact with all 12. Others try to fix on a leader. “You’ve got to direct your examinations to them, the rest will follow,” says courtroom veteran Gustave Newman. What to do with hostile jurors? Cochran may play to three jurors that sources say he’s anxious about. One, a 60ish white female, and maybe another, a Hispanic male, seem actively opposed to the defense case; they seem to “pal up” when the state has a good day. And a third, a black female in her mid-40s, is a “wild card,” the source says.
Richard Martin knows about long trials. He was one of the U.S. prosecutors in the 17-month-long Pizza Connection organized crime trial in New York. His team started working on its closing arguments months before the trial ended. One key to closing a long trial, he says, is to make sure that the lawyers study the transcripts and state the testimony accurately; otherwise jurors will write you off as unreliable. Both sides in the O.J. case have reportedly run through rehearsals and held mock closings.
This week, it’s show time.
The difference between degrees of murder boils down to whether the killer weighed his crime in advance.
Murder committed deliberately and with premeditation.
Conviction on one count means 25 years to life. Two counts is life with no parole.
Jury must find unlawful killing without deliberation.
A murder committed on a rash and uncontrolled impulse can only be second degree.
Conviction on each count carries a sentence of 15 years to life.
