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ANNOUNCER: This is a production of Cornell University.
CHARLES JERMY: Good evening, and welcome to the first of the Summer Series. My name is Charles Jermy, and I'm with the School of Continuing Education and Summer Sessions. And we're delighted to have you here. We're also grateful to Dean Boor for allowing us to use this wonderful auditorium. The College of Agriculture and Life Sciences is very generous in allowing us to use it.
On July 7, 1892, the Cornell University Summer Session began. And so Friday, on July 7, 2017, we'll be celebrating our 125th anniversary. And we're hoping to do it outdoors, but Katie doesn't have much influence, and she tells me it looks like rain.
But we hope you'll join us for a party. And we can all celebrate together. Because I don't think any of us is going to be here, probably, in maybe 25 years. Certainly not 125 years. So join us on Friday.
Introducing Glenn Altschuler to a Cornell University audience in 2017 must be a lot like introducing Ezra Cornell or Andrew Dickson White to a Cornell audience 150 years ago. Quite unnecessary. But for those of you who don't know Glenn, I'm going to give it a try.
After earning a Master of Arts degree in history, and then a PhD degree at Cornell in 1976, Ithaca College borrowed him for a short period of time. But in 1981 he returned to this hill, where he has spent the remainder of his very distinguished career. Glenn is the Thomas and Dorothy Litwin Professor of American Studies at Cornell, in the College of Arts and Sciences. And he has been Dean of the School of Continuing Education and Summer Sessions since 1991. Glenn, I think, has been, by decades almost, the longest serving dean in Cornell history.
In addition to serving as dean-- which is a full time job in itself-- there are at least four other parts to Glenn's Cornell life. He's a gifted teacher, as I've already noted. But he's also a prodigious scholar, a prolific writer, and an enthusiastic advisor. In addition to the courses he still teaches every year, he is the author or co-author of 12 books. And he has written more than 1,000 essays, book reviews, columns, and op eds.
The National Book Critics Circle has cited his work as exemplary. "Popular Psychology Today" has featured his work as essential reading. At Cornell, Glenn is the recipient of the Clark Teaching Award, the Donna and Robert Paul Award for Excellence in Faculty Advising, and the Kendall S. Carpenter Memorial Award for Outstanding Advising.
He is a vice presidential fellow. He continues to be a strong advocate on campus for high-quality undergraduate teaching and advising. And he counts as friends and stays in touch with hundreds of former students and advisees.
Fortunately, Glenn couldn't think of anything better to do tonight, except talk to us. And so we are delighted to have him spend a part of his evening here. Glenn C. Altschuler, The Future Belongs to Those Who Tell the Best Stories-- Advocacy Techniques in Great American Trials. Glenn.
[APPLAUSE]
GLENN ALTSCHULER: Thank you very much, Charles. I want to take a moment to thank Charles Jermy, who isn't often thanked enough. Charles is one of the great university citizens at Cornell. He has spent his career at Cornell, and in the School of Continuing Education and Summer Sessions, where he is the heart and soul of the operation.
And all of you should know that events like this wouldn't happen were it not for Charles, who is not only an academic leader and an administrator, but somebody who cares deeply about the relationship between what used to be called the town and the gown. So please join me in thanking Charles for more than four decades of service to Cornell.
[APPLAUSE]
I'm grateful, of course, to Charles, as well, for that gracious introduction. And I know that not all introductions are as gracious as his. Indeed, some years ago my colleague and co-author Stuart Blumin was giving a lecture at a university in Cambridge, Massachusetts. And he was introduced by a very distinguished, and very cranky scholar by the name of Oscar Handlin.
Oscar Handlin's introduction went like this. Stuart Blumin thinks he knows something about American urban history. We'll see.
[LAUGHTER]
And that may be the case for me this evening, since I'm not a lawyer, I don't play one on TV, and I'm nonetheless going to talk to you about trial advocacy techniques.
Successful courtroom lawyers are skilled storytellers. They recognize that stories are essential to all of us as we learn, interact with others, and try to understand the world around us. Lawyers realize, as perhaps all of us should, that facts do not speak for themselves. They must be interpreted.
Operating within the formal rules, regulations, and norms of the adversary system, lawyers weave the evidence that has been gathered into a clear, concise, and convincing narrative. They frame the issue. They punch holes in the competing narrative offered by the other side. They demonstrate mastery of facts, but do not get lost in details, never forgetting the observation of actor and director Kenneth Albers, that a great story is like a well crafted joke-- deliciously brief, immediately memorable, eminently repeatable, virtually impossible to dismiss.
This evening I'm going to talk about storytelling in the courtroom, and I'm going to use four trials to illustrate the essential nature of great storytelling to courtroom performance. Those trials are the trial of Leopold and Loeb, the trial of Alger Hiss, the trial of Dan White-- accused of murdering the mayor of San Francisco and gay activist Harvey Milk-- and finally a trial you've never heard of before involving a famous football player.
Let me begin with Leopold and Loeb. The villains of this drama were, of course, the two murderers, Nathan Leopold and Richard Loeb.
Leopold was called a genius. He spoke at the age of four months. His IQ was measured as somewhere between 210 and 230. When he was 16 years old he had one of the finest collections of butterflies in the world, and was often called upon for expert advice.
At age 18 he was the youngest person to graduate from the University of Chicago. He was fluent in five languages and read voraciously. Especially philosophy, and in particular the work of Friedrich Nietzsche. And indeed, it was Nietzsche who taught him the concept of the superman-- the superior individual who exists outside the boundaries of the law. And young Mr. Leopold set out to demonstrate that he was one of those supermen.
Richard Loeb's IQ was a mere 160. By age 17 he had graduated from the University of Michigan. And both young men were scheduled to enter Harvard Law School.
They decided to commit a crime, get away with it, and demonstrate to themselves that they were indeed supermen, above the law. Their victim was 14-year-old Bobby Franks. They lured him into their car. They murdered him, and they dumped his body in the river.
It turned out Leopold and Loeb weren't exactly the masterminds that they thought themselves to be. The police apprehended them almost immediately, and they confessed. Their parents wished to save their lives, and hired Clarence Darrow-- the greatest defense attorney of his age-- to represent them, with one aim in mind. See to it that they are not executed.
Darrow understood that there was no possibility of a deal with the prosecutor, and so he decided to plead guilty to both murder and kidnapping, so that he could have a trial that was essentially a trial about the penalty. And a trial that would not be a jury trial, but decided by a judge. And therefore one person, and one person alone, would decide whether Leopold and Loeb would live or die-- as opposed to a jury trial, where there is a diffusion of responsibility, and a more likely guilty outcome.
Darrow's approach to this trial is viewed as a model of trial advocacy techniques. And I want, very briefly, to talk about the advocacy techniques that he used that are now viewed as de rigueur for almost all lawyers.
Technique number one is the most important technique. You must have a single theory or theme, expressed in a phrase or a sentence. A thesis that harmonizes all the undisputed facts into one well-reasoned, reasonable, and convincing theory.
What was Darrow's theme in this trial? It is embodied, as all great lawyers do, in one sentence. This terrible crime was the senseless act of the immature and diseased minds of children.
What explains the lack of motive? They're mentally sick. What explains their lack of remorse? They're mentally sick.
Merely telling the story-- reciting what happens-- tells you they're mentally sick. Would normal boys do what they did? Never. They are sick. This theme was repeated again, and again, and again.
The prosecutor, by contrast, believed that the evidence was all he needed to present. He called over 80 witnesses to re-enact every detail of the crime. How the boys planned it, where they went, and what they did. This, of course, was a mistake, since Darrow had plead guilty.
And so he didn't object-- in fact he didn't cross examine the prosecution witnesses. Indeed, the facts of the case fit his theory perfectly. Only a diseased mind would commit these acts.
Technique number two, personalize and humanize your clients. Although they were 19 and 18 years old, Darrow referred to Leopold and Loeb as boys, teenagers, lads, and even children. He not only used their first names, he used their childhood nicknames. Richard Lowe became Dickie. Nathan Leopold was Babe.
Technique number three, try to subvert the arguments of the opposition. And Darrow did this by ridiculing some of the key prosecution witnesses. And he used wonderful, memorable analogies to do so. He was a storyteller, and he told stories in a way that undercut the prosecution witnesses.
An example, a prosecution psychiatrist, Dr. William Krohn. Unlike other medical experts, Dr. Krohn would not concede any emotional abnormalities in the defendants. They were perfectly fine, he said, and deserved to die.
So here's what Clarence Darrow said about Dr. Krohn. "When Dr. Krohn testified, my mind carried me back to the time when I was a kid, and we used to eat watermelon. I've seen little boys take a rind of watermelon, and cover their faces with water, eat it, devour it, and have the time of their lives, up to their ears in watermelon. And when I heard Dr. Krohn testify in this case, I could see his mouth water with the joy it gave him. And he showed all the delight and pleasure of me and my young companions when we ate watermelon."
Dr. Krohn was Dr. Death, and the jury was left with the endearing image of Darrow as a child eating watermelon, and of the joy in death that Dr. Krohn took.
Next technique, universalize your cause. Lawyers are taught that it is important to tell the jury and the judge that their decision is important. Even if you have a case so routine, so dull, so ordinary that it doesn't appear to have any importance. At the very least you say, ladies and gentlemen of the jury, your honor, your decision in this case will be noted in the records of this courthouse, and in this community, forever.
Well, Darrow did have a cause to universalize. And that cause was the death penalty. And in particular, the death penalty as it applies to children.
And he made this case a case about the past and the future. "You may hang these boys. You may hang them by the neck until they are dead. In doing so, you will make it harder for every other boy who must grope his way through the mazes which only childhood knows. What we can learn by reason, and judgment, and understanding, and faith is that all life is worth saving, and that mercy is the highest attribute of mankind."
Now I'm not going to tell you what the decision in the case was. I'm looking for people to buy my book. Preferably bulk purchases are in order.
Suffice it to say that Judge Caverly gave some credence to the argument that Clarence Darrow gave. And you may also want to read about this case, because it had some twists and turns about what happened to both Leopold and Loeb.
Let me move very quickly to my second case, which I'm only going to mention briefly. This is the case of Alger Hiss, the accused spy accused of giving classified secrets to the Soviet Union in the 1930s. I want to make only one point about this case. Hiss was a very famous man when he was accused in the late 1940s.
And part of his defense-- a crucial part of his defense-- was calling character witnesses to testify about the kind of person he was. The kind of person who would never do what he was accused of doing. And the prosecutor, Thomas Murphy, had to deal with character witnesses. And he demolished all of the character witnesses that were brought forward in the case, in two paragraphs. So let me just read to you what he said.
"The defendant has called 19 character witnesses, and all of them say his reputation is good. And I ask you, what kind of reputation does a good spy have?
[LAUGHTER]
Well, of course it must be good. The fox barks not when he goes to steal the lamb. No, the spy's reputation must be good. Just think how many people could call character witnesses.
Benedict Arnold, a Major General in our army who sold out West Point to the enemy. Don't you believe that Major General Benedict Arnold could have called George Washington as a character witness? And Brutus, before he stabbed Caesar. Don't you think you could have stood in front of the Roman Senate and called upon the great Augustus and said, tell him what kind of man I am.
And lastly," said district attorney Thomas Murphy, "the devil himself, before he was thrown out of heaven. He could have called upon the Almighty God as his character witness. Character witnesses belong to another era. This is the age of reason. We don't need character witnesses."
Pretty good. Pretty good, by Thomas Murphy.
OK, we now turn to the two core cases that I will discuss in some detail. Both of them appear to be slam dunk cases for conviction of murder in the first degree. Both resulted in verdicts favoring the defense. Both involve miscalculations by prosecutors. Both involve poor choices by prosecutors in jury selection that resulted in panels sympathetic to the defendants.
First, the Dan White case. Where, in San Francisco, on Monday morning, November 27, 1978, Dan White-- a member of the Board of Supervisors until he resigned about three weeks before-- is dropped off by an aide in front of City Hall. White had changed his mind about his resignation. He thought Mayor George Moscone had agreed to reappoint him, but he had just learned that someone else was to be appointed to fill the position.
He came to City Hall-- Dan White did-- prepared to persuade with more than the mere force of his words. He didn't use the front entrance of City Hall, because he knew he would have to pass through a metal detector. He walked around the building, and slipped through an unguarded basement window, walked up a staircase that led directly to the office of the mayor. He was ushered into the mayor's office, pleaded to be reinstated.
There were angry words, two shots, the mayor falls to the floor. White shoots the mayor twice more-- this time in the head-- and Mayor Moscone is dead. White then reloads, leaves the mayor's office, and goes to the office of Harvey Milk, an openly gay leader and fellow board member who has persuaded the mayor not to reappoint Dan White. White fires three shots, then two more, and Harvey Milk is dead.
White leaves city hall, calls his wife. The two of them go to the San Francisco police station, where White used to work, and he turns himself in. He confesses to his former police friend. Dan White is charged with two counts of premeditated murder in the first degree.
Prosecutor Tommy Norman says, this is one of the easiest murder cases I have ever tried. Mistake. Serious mistake. You never say that.
But Norman thought the premeditation was obvious. He had a confession. He had a murder weapon. An insanity plea was not an option-- the legal test was too strict, and seldom successful. There was absolutely no chance for an acquittal.
The defense decided to argue for manslaughter. California state court decisions at this time allowed mitigation of some homicides to second degree, and even manslaughter, where intent was clouded by extreme emotional distress short of insanity. This was called the diminished capacity defense.
Defense attorney Doug Schmidt had to tell a story. It began with his depiction of Dan White as a model citizen. Valedictorian of his high school, where he was a star athlete. White enlisted in the Army, served honorably in the Vietnam War. Joined the San Francisco Police Department, then the fire department, in which he risked his life to save a woman from the seventh floor of a burning building.
As I've said, in order to persuade, a lawyer must first have a theory, and second, a theme. Schmidt's approach was, as I've said, to show that Dan White was a good man, except for that one act. The kind of person every man or woman would love to have as a son or neighbor. And then to show that Dan White suffered from a severe depression. And they would tie the case together with expert witnesses.
What was the one sentence-- the one theme-- that Doug Schmidt demonstrated throughout the trial? Good people, fine people with fine backgrounds, do not kill in cold blood. It just doesn't happen unless they have a mental problem.
In order to succeed, Doug Schmidt would have to persuade the jury that this story was valid, and he would also need something more. And this something more represents Glenn Altschuler's principle in law-- as well as life-- it's good to be smart, it's essential to be lucky. My career has been predicated on this principle.
That luck came in the form of three errors by prosecutor Tommy Norman. The first involved the selection of the jury. Norman followed the standard prosecutorial formula. Get law and order types who are stable members of the community, conservative older men and women who will be in favor of the death penalty, no liberal leaning jurors. Now this is a good formula in most cases, but not in this one.
Dan White was, himself, a law and order type who had been a stable member of the community. A former police officer, a fireman, and a traditional member of the community. In fact, the jury that Tommy Norman selected was dominated by people just like Dan White, who sympathized with Dan White, and who certainly didn't sympathize with gay activists like Harvey Milk.
The second mistake was that Norman made no effort to humanize the victims. He could have spoken of Harvey Milk's service in the US Navy, his efforts to procure jobs for everyone in the district, his commitment to civil rights. He could have made much of the fact that George Moscone, the son of a milkman, rose from a working class Italian background to be the city's mayor. But he barely mentioned the victims in this trial.
In another error, Tommy Norman focused on what happened, not why it happened. The same mistake that had been made in Leopold and Loeb. He should have said that Dan White didn't lose it. He had been disrespected and betrayed by Moscone and Milk. He decided to make them pay. That his act was an act of revenge, which is not covered by the diminished capacity law.
Virtually all of the prosecution witnesses actually helped the defense. Tommy Norman called Dianne Feinstein, who had replaced George Moscone as mayor. Schmidt asked her in cross-examination, did you feel that Dan White was idealistic? Yes, I felt he had very strong ideals. He had always worked very hard. Given that you knew Dan White quite well, would it be your opinion that the man you knew was the type of man that would have shot two people? No, it would not be my opinion that he was that type of man.
Then there was Police Officer Falzon, who was a friend of Dan White, and who testified that when he saw Dan White, Dan White was destroyed. Totally unlike the man I knew, a man among men, a hustler.
And then the prosecutor showed the tape of the confession. And in the confession Dan White was so clearly distraught. So broken down that when the tape ended, Tommy Norman looked at the jury, and most members of the jury were weeping. Not a good sign for a murder one conviction.
Dan White's wife was called. She described how she met and fell in love with Dan, and how he always treated her well. But she talked in detail about his bouts of depression and isolation. And so the testimony went, and when Mary Ann White left the stand, the jury again was shaken.
Then the psychiatrists. And here are the key questions and answers. Were you able to diagnose or detect any mental illness or disease in Mr. White? And if so, what would it be?
Yes, I think he was suffering from what is called unipolar depressive reaction. This means he was subject to recurrent bouts of depression to a major degree. Do you have an opinion, based on your reasonable psychiatric certainty, as to how that condition affected Mr. White on November 27, 1978? Yes. In Mr. White's case, he not only did not premeditate or deliberate these killings, but as a result of his mental condition he was not capable of any kind of mature, meaningful reflection on that morning.
Tommy Norman should have jumped to his feet and objected. Why? premeditation is a legal doctrine, not a psychiatric doctrine. And the psychiatrist was not an expert on legal doctrine, and had no business opining on premeditation. Instead, Tommy Norman was silent.
Now I also should mention that in the course of the testimony, one of the psychiatrists mentioned that Dan White's condition was exacerbated by the excessive amount of sugar that he consumed in the form of Twinkies. And this case became known as the Twinkie defense, even though that comment was made in passing and had very little to do with the case.
The jury came back with a verdict, guilty of manslaughter. As many saw it, as the gay community saw it, Dan White had gotten away with murder. His sentence was seven years. He served five years, and was released on parole.
After his release Dan White killed again. This time, himself. He committed suicide, leaving behind his bereaved wife and three small children.
The trial for the murder of Nicole Brown Simpson and Ron Goldman, many of you remember. And that's a good thing, because I have only about 12 minutes to talk about this trial. The evidence against OJ Simpson seemed overwhelming. Prosecutors Marcia Clark and Chris Darden called it the most massive and compelling body of physical, scientific, and circumstantial evidence ever assembled against a criminal defendant in American history.
The narrative you remember was that on Sunday night-- June 12, 1994, at about 10:00 PM-- OJ Simpson-- wearing a black watch cap, leather gloves, and armed with a knife-- left his Beverly Hills estate on Rockingham drive, drove his white Bronco about two miles to his ex-wife's condominium on Bundy Drive, accosted her on the front steps, and knocked her unconscious. He then fought with her friend Ron Goldman, who had just arrived at the scene, stabbing Goldman more than 30 times. In the course of the struggle, Simpson not only lost his black cap, but Simpson's left hand glove came off, and he suffered a deep cut on the knuckle of his left hand. Goldman was dead.
OJ then returned to the unconscious Nicole, who was lying face down. He put his foot on her back, grabbed her hair, pulled her head back, and slashed her throat from ear to ear. OJ Then walked on a pathway to the rear of the condo, where his Bronco was parked, drove hurriedly back to Rockingham. He was in a rush because he was expecting a limousine driver to pick him up at 11:30 and take him to the airport for a night flight to Chicago, where he was scheduled to make an appearance the next day for Hertz Rent a Car.
OJ entered his estate from the back, dropped his right hand glove when he bumped into one of the rear rental units. He went into his house about 10:55, and left the house 10 minutes later to catch his flight.
Two hours later, the police discovered the bloody murder scene with two victims. In the early morning the detectives went to OJ's home to notify him that his ex-wife had been killed. Directly in front of the house they saw OJ's white Ford Bronco slightly askew to the curb, as though it had been parked hurriedly.
There was blood on the outside of the car, on the interior door and console, and on the carpet. At the rear of the house detective Mark Furhman found a bloody right hand glove that was found to be a match for the left one found earlier at Bundy Drive. In addition, there was a trail of blood leading from the Bronco to the Rockingham front gate.
Later that day OJ's bloody socks were found in the house. DNA evidence established that every single drop of blood-- every single one, from every single crime scene, whether at Bundy Drive or Rockingham-- belonged to either Nicole Simpson, Ron Goldman, OJ Simpson, or a combination of two or all three of them. It was more than a million-- in some cases 10 million-- to one that it was not the blood of OJ Simpson.
The prosecution also had hair and fiber evidence taken from the black cap and Goldman shirt that proved to be OJ's. And a torn hair found on the bloody right glove was Nicole's. The bloody gloves were made by Aris and sold only in the United States by Bloomingdale's, and only 200 size extra large had ever been sold. Nicole Simpson had bought two pair of such gloves at Bloomingdale's.
The killer's bloody footprints were made from size 12 Bruno Magli shoes, that only 9% of the population wear, including OJ Simpson. The footprints indicated that the killer weighed about 200 pounds, and was between 6 feet and 6 feet 4 inches. OJ Simpson was 6 feet 2 inches, and weighed 200 pounds.
OJ Simpson could not explain the cut on his left hand. He couldn't remember what might have caused it.
The limo driver would testify that he arrived early at Rockingham, at 10:15 on the night of the murders, and found that OJ was not at home. There was no Bronco parked on the street. He rang the bell four times until 10:49, when he saw a dark figure cross the driveway and into the house. And then house lights went on, the driver then buzzed, and this time OJ answered, saying he had overslept.
In addition, there was a pattern of physical abuse and stalking of Nicole by Simpson that was well-known to the police. Was there any doubt that OJ Simpson was the killer? The trial lasted almost a year. How was it possible that the defense was able to succeed in the face of this overwhelming evidence of guilt?
My argument is going to be that the defense told a better story than the prosecution. First, in order to get an acquittal, the defense would need a very effective team, the best that money could buy. Altschuler's principle number two-- good to be smart, better to be lucky, really good to be rich.
[LAUGHTER]
I don't know this from my own experience, but 67 years of observations suggests to me that this is indeed the case.
The team assembled included the lead defender Johnnie Cochran-- the most well-known black lawyer in Los Angeles-- F. Lee Bailey, Alan Dershowitz, Robert Shapiro, Barry Scheck, and an assortment of the best scientific experts in the country. Here's the story they told. They took advantage of the long history of racism in the Los Angeles Police Department, claiming that their client was the victim of a vast conspiracy by racist law enforcement officials.
Second, the defense needed an audience receptive to their strategy, namely African-American jurors. Johnnie Cochran said this, "give me one black juror, and I'll give you a hung jury." He did much better than that. He got nine African-American jurors. He got them in part because Marcia Clark and Chris Darden had to decide on the venue for the trial.
They had a number of choices, because Bundy and Rockingham were in different jurisdictions. They decided to file in the South Central district of downtown Los Angeles, some said, because the courtroom was bigger and would include a more room for members of the media. But, of course, South Central district of downtown Los Angeles is comprised mostly of African-Americans. Marcia Clark was confident that a conviction was inevitable, no matter who was on the jury.
And in addition, although focus group jury selection experts told her she was wrong, she was adamant that she was well liked and respected by African-Americans, especially African-American women. When she was told African-American women hate you-- they hate you-- she simply dismissed those suggestions.
Then there was the decision to put Detective Mark Fuhrman on the stand. Clark knew that Fuhrman had a history of using racial slurs, even though he denied it. She should have sat him down and said, you must tell the truth on the stand. It will hurt you if you admit using racial epithets, but it will hurt you a lot more if you deny it and are proved to be lying.
Marcia Clark did not do that. Mark Fuhrman gave flat claims that he had never used the word nigger. And of course the prosecution was able to show a interview in which he used that word-- I believe over 40 times.
Then there was the famous bloody glove demonstration. In five short minutes, Chris Darden undermined substantial elements of the prosecution's case by apparently spontaneously demanding that Simpson try on the infamous bloody gloves. Every trial lawyer knows, or should know, that you do not perform a demonstration unless you are absolutely certain of the outcome. And you certainly don't turn over control of the demonstration to the defendant, especially when he is an experienced actor.
Darden did not take into consideration that the gloves had been wet with blood, and that leather tends to stiffen and shrink when damp. Nor did he realize that in order to protect the gloves, that were in evidence, they had to be tried on over latex gloves. Walking toward the jurors, grimacing dramatically, OJ Simpson appeared to tug and struggle, muttering too tight as he tried to pull the gloves on over the latex. He also kept his thumb bent at a right angle to his wrist, making it virtually impossible for the glove to go on. In his summation, Cochran coined the now famous phrase, "if it does not fit, you must acquit."
The defense also, in order to tell their story, crossed-- in my judgment-- ethical lines by showing OJ Simpson's-- in their view-- close ties to the African-American community. Here's one way they did it. They asked that the jury visit OJ Simpson's house on Rockingham. Before the jury visited, the defense team went through the house, took off the walls all photographs of OJ Simpson with white women, and put up photographs of Simpson with African-Americans, and paintings and drawings by African-American artists.
Subsequently, the defense would argue that this was OK, because those wall hangings were not evidence, and they made no claims about them. And they did not say that those were on the walls when the crime was committed. Little wonder that subsequently Robert Shapiro, in an interview with Barbara Walters, would say, we not only played the race card, we dealt it from the bottom of the deck.
Finally, the realization that the jury was disposed to favor Simpson affected the tone and the content of the prosecution's presentations. At one point in the trial, this is what Marcia Clark said to the jury. "He's such a famous guy. He's such a popular guy. A good looking man.
This is not a fun place for me to be. Do you feel a loyalty to the defendant? The defendant is such a famous guy. You may not like me for bringing this case. I'm not winning any popularity contests for doing so."
The implication, of course, was that she would rather not be prosecuting Simpson. But what could she do? She was hired to do so. Christopher Darden-- the African-American prosecutor-- was even worse. This is what he said in his final argument to the jury-- in his final argument.
"Nobody wants to do anything to this man. We don't. There is nothing personal about this." And then he added these final words, "whatever you do, the decision is yours. I'm glad it's not mine."
[LAUGHTER]
Now remember, they're seeking a murder one conviction for one of the most bloody and brutal murders in modern memory. And they claim the greatest body of evidence ever amassed against a defendant. Darden seemed to be implying that this was a close, tough case. And seemed to be conceding that there was reasonable doubt and the jury came back-- amazingly, within four hours-- with an acquittal.
In an ABC poll taken a few days before the verdict, 77% of whites believed that OJ was guilty, 70% percent of blacks thought he was innocent. This a function of the story that the defense told. Obviously, even though he was acquitted, the case changed OJ Simpson's life. He was ultimately convicted in a civil trial where the preponderance of evidence standard-- and not beyond all reasonable doubt-- is used. He didn't have the resources to pay the civil penalties.
His descent continued, and in 2007, in Las Vegas, OJ Simpson and five accomplices forced their way into a hotel room where Simpson memorabilia was to be auctioned to satisfy the wrongful death judgment. OJ was arrested, charged and convicted of armed robbery, kidnapping, and conspiracy, and was sentenced to nine to 33 years in prison. He is scheduled for parole within the next few months, and we can expect that more storytelling will ensue. Thank you.
[APPLAUSE]
Questions? I think I've graciously agreed to take questions. So if any of you have any questions, comments-- yes?
AUDIENCE: With the OJ Simpson trial, after [INAUDIBLE]--
GLENN ALTSCHULER: I can't hear you. Why don't you stand up?
AUDIENCE: Sorry. So with the OJ Simpson case, after practical knowledge which has helped, by what happened with the leather glove, and by what the lawyers did to his house, and stuff, has that prompted a second trial for the case, or any response to that effect?
GLENN ALTSCHULER: Did everybody hear the question?
AUDIENCE: No.
GLENN ALTSCHULER: Good, then I can say whatever I like.
[LAUGHTER]
So this gentleman was asking whether in light of the evidence that we now know, has there been a move for a retrial? In the United States there's no such thing as double jeopardy, unless you're watching a television program that has that as one of the categories. So the acquittal stands, no matter what. There's no retrial.
Yes? Stand up and yell it out.
AUDIENCE: My father, may he rest in peace, was a patent attorney who did trials. And he was very-- he loved the law, but he'd say to us children, that one of the things he loved about the law was that it was evidence that would be the most important thing in a case. And the evidence would go along with the truth. So I'm trying to understand that with what you're saying about storytelling. But it seems to me that one of the things you're saying is that, actually, evidence doesn't necessarily have anything to do with the truth because of storytelling.
GLENN ALTSCHULER: OK, so a young woman is asking about whether her late, wonderful father's aphorism that evidence is aligned with the truth is an accurate description. And your father, the patent attorney, sounds like he should have stuck to patent cases.
[LAUGHTER]
I think what's important to say here is that evidence, facts, do not carry their own persuasive power. They don't. The evidence or facts have to be arranged. Selections have to be made. And successful presenters-- whether they are lawyers, or any other kinds of presenters, or, god help, us professors-- need to frame the issue. If you don't successfully frame the issue, somebody else will.
And the evidence doesn't organize itself. The evidence doesn't speak for itself. Somebody or somebodies need to frame that issue for people. All of the lawyers that I've talked about today, and all successful lawyers, understand that.
And in the adversarial system that we have, we have two competing narratives. Both often rely on the same body of evidence. And the one that frames that evidence in the most persuasive way is more likely to win.
And in our system, as well, although it would be wonderful if this were to be the case, outcomes don't always reflect justice. They don't. We'd like them to. And we want the system to reflect just outcomes more, perhaps, than it does. More, perhaps, than it does.
Yes?
AUDIENCE: If the prosecutors had done what the defense attorneys had done-- rearranging the apartment, or whatever-- do you think [INAUDIBLE] they'd be subject to some sort of prosecutorial misconduct charges?
GLENN ALTSCHULER: Well, as I said-- everybody hear the question? This is about the rearrangement of the wall hangings in Rockingham. If the prosecution had done this, would they be subject to prosecutorial misconduct?
The technical issue-- technical issue-- involves whether those wall hangings are evidence. They were never introduced into court as evidence. So whether it rises to the level of prosecutorial misconduct might rest on that defense. To me, it crosses the line. And it crosses the line because there's an intent to deceive the jury.
And all lawyers, no matter who they are, take the equivalent of the Hippocratic oath for lawyers, indicating that they will never intentionally seek to deceive. So whether it's prosecutors or defense lawyers, I believe that that did-- it certainly crossed an ethical line. Whether it constituted prosecutorial misconduct is going to vary with what the nature of the claims and counterclaims.
Yes?
AUDIENCE: In your instances, I heard more than anything else, a factor of a thin veneer of jury nullification. To what extent do you think that played a role?
GLENN ALTSCHULER: In the OJ Simpson case, you mean?
AUDIENCE: And also Dan White.
GLENN ALTSCHULER: I don't think jury nullification was at all relevant in the Dan White case. I think the diminished capacity defense was actually quite persuasive. Now I will say to you that after that case, Twinkies weren't outlawed, but the diminished capacity defense was removed by the California State. But under that regulation, I think that was actually a perfectly valid outcome, and not jury nullification at all.
In the OJ Simpson case, I do not believe it was jury nullification. Jury nullification means that you know the person is guilty, but you're nonetheless voting for or supporting an acquittal. If you listen to the jurors, that is not what they believe. That is not what they believe.
They believe that OJ Simpson was framed. Pure and simple, they believed that he was framed. And that does not constitute jury nullification. Some of us may conclude that that was not a very sound decision.
In my view, the LAPD did have a long history of racial discrimination and profiling of blacks. That was used to great effectiveness by the defense or jurors. They also shared all kinds of doubt on continuity of control of the DNA evidence to cast doubt on whether or not something was supplied after the initial blood was taken. Now I don't believe that those things happened. But the jury did believe that those things happened.
And the prosecution just didn't do a very good job of a counter narrative. That counter narrative should have demonstrated how brutal OJ Simpson was. His motives for the crime. They, too-- I think-- the prosecution, too, thought that the evidence carried its own persuasive power. It never carries its own persuasive power.
And so I really believe that whatever else you think, the defense told a better story. The defense told a better story. And you're only permitted, as a jury, to use the evidence presented in the courtroom.
AUDIENCE: It seems to me a very thin line. And people tend to see what they want to see, and believe what they want to believe.
GLENN ALTSCHULER: Yes in all things, including you.
[LAUGHTER]
And including me. And so that's what our jury system asked them to do. To, from your perspective, decide what you believe is the case.
And what we do is we say, well, you've got to have 12 of you. And they all have to agree. And that makes it more difficult to come up with a unanimous verdict. But subjectivity is impossible to banish from jury deliberations. And I can't envision a system in which it would not play a role.
Other questions that any of you have? Yes?
AUDIENCE: In other industries, like high--
GLENN ALTSCHULER: Can't hear you.
AUDIENCE: In other industries-- like high technology or natural science-- do you think it is still important for storytelling, as important as in trials?
GLENN ALTSCHULER: OK, the question is, in other domains, is storytelling important? And my answer is a resounding yes. We have, in this audience, a wonderfully distinguished chemist, Jerry Meinwald, who has worked for decades-- sometimes with another wonderful, now deceased, faculty member, Tom Eisner-- about the chemical defenses of insects. And their work involves stories about how those insects defend themselves. And their research, and their research findings, are inextricable, it seems to me, from storytelling.
We have big bang theories. We have small bang theories. We have bangless theories. We have theories of evolution. All of them involve storytelling.
We have advertising. Advertising is only about storytelling. We have, dare I say it? We have politicians--
[LAUGHTER]
--who assemble facts or alternative facts in narratives. And do so with the belief that the more persuasive of those stories will lead to a greater amount of support.
Storytelling is endemic to human beings. It's in the courtroom, it's in science, it's in politics. It's in our personal lives, with our spouses and our children. We spend most of our time telling stories. If you're a parent, often your stories aren't terribly persuasive.
[LAUGHTER]
But you may want to try to make them more persuasive. Because they're going to lead to better results, if you're able to do that.
So maybe on that note, I should thank you all for coming on this lovely evening.
[APPLAUSE]
ANNOUNCER: This has been a production of Cornell University, on the web at cornell.edu.
Glenn Altschuler, dean of the School of Continuing Education and Summer Sessions (SCE) and the Thomas and Dorothy Litwin Professor of American Studies, spoke at Cornell on July 5, 2017 as part of SCE's free summer events series. Altschuler is the author or coauthor of eleven books and more than a thousand essays and reviews. His latest book, co-authored with Faust Rossi, is Ten Great American Trials: Lessons in Advocacy. Drawing on four great court cases explored in that book—Leopold and Loeb, Alger Hiss, Dan White, and O.J. Simpson—Altschuler demonstrates the importance of storytelling to trial advocacy.
