Daily Journal, March 29, 2006
By Thomas A Mesereau Jr.
It has been one year since our mentor and friend, the late Johnnie L. Cochran Jr., passed away. I was recently honored to speak at a symposium at Loyola Law School about this outstanding lawyer. To prepare my remarks, I reread his two books: “Journey to Justice” (Ballentine Books, 1996) and “A Lawyer’s Life,” (St. Martin’s Press, 2002). I also watched the lengthy defense closing arguments in the O.J. Simpson trial.
These sources are a treasure trove of insight, wisdom and unconventional technique. The closing arguments of Johnnie Cochran and Barry Scheck may be among the greatest of their genre.
Johnnie Cochran displays total comfort with himself in what was the highest profile trial of his day. He reminds jurors that they are engaged in a personal discussion with him. He makes his points in a context of respect, empathy, compassion and humility before his God and the jury. With Johnnie, one sees and feels an unusual ability to move mountains through a humble sincerity. The power he generates through modesty and confessions of weakness is extraordinary. Barry Scheck, portrayed as the technical complement to Johnnie’s oratorical skills, is no less human or principled.
An advocate’s reputation for compassion, community service and civil-rights principles brings extraordinary force to a criminal proceeding. I have always believed that at some moment in every criminal trial, the jury looks into the heart, soul and values of the defense attorney. Shallow tricks or artifice are laid bare. Because we are very much a function of what we do in life, character can be a powerful weapon when the stakes are so high. Johnnie Cochran’s struggles and career prepared him for this moment.
In “Journey to Justice,” Johnnie refers to a pastor from his childhood. He describes his mentor as follows: “His rhythmic cadence brought the Scriptures to life, made it a living thing whose force penetrated the flesh, caressing the soul and bringing chorus after chorus of shouted praise from the faithful. … His message of faith, hope, and redemption touched us in a healing way, renewing and revitalizing us for another long, hard week ahead.” He could have been describing himself.
Further into his book, Johnnie articulates the following principle: “Mere eloquence without conviction is hollow; conviction that does not find a voice is too often impotent.”
Johnnie makes continual reference to the jury’s exceptional power in a rare historic moment. Forever reminding them that they are mere mortals who, like him, need God’s guidance and help, he instills a sense of enormous responsibility rarely seen. For example, he quickly says: “Nobody can tell you what the facts are; you decide.” He refers to the fact that O.J. Simpson is “on trial for his life” and says, “We thank you and appreciate you as we move toward justice.”
He sprinkles these powerful emotions with respectful gestures of appreciation to the jury, judge and court reporters. One realizes that in the world of Johnnie Cochran, everyone deserves dignity and attention.
The power to persuade is synonymous with the power to relate. If bonding with the jury is a goal, Johnnie reached nirvana. While his personal attributes are evident, he periodically summarizes where he is and uses catch phrases to cement his principles. The prosecution’s case is reduced to “theories,” “speculation” and claims that “just don’t fit.” Their “mountain” and “ocean” of evidence is reduced to a “molehill” and “trickling stream.” He reminds the jury that they are traveling to the “City of Justice.” To reach justice requires a panoramic acceptance of police dishonesty, corruption and abuse. The verdict, he tells them, will send a message of hope or despair, depending on one’s perspective. They must seize the moment, or the moment will doom a classic opportunity for freedom.
Any student of trials will benefit from a study of the defense choreography in O.J. Simpson. The emotional pacing and variety go hand-in-hand with carefully timed references to trial transcript, charts, blow-ups and sound. None of the choreography appears foolish or overdone. Johnnie Cochran and Barry Scheck provide a symphony that is hard to resist. Any juror who believes his goal is to protect the Constitution and send a message of freedom and equality to the world has to be moved.
It is difficult for lawyers to utilize references to scripture and religion in the courtroom. The fear is that jurors will see manipulation and artifice where it does not belong. Johnnie knew how to neutralize this problem. His appeals to God and the Bible are not just designed to shore up his arguments. He sensitively confesses that he also needs guidance in moments of trouble and weakness. He invites them to be as human as he is and to be proud of the position they are in. He turns to Cicero, Frederick Douglas, Abraham Lincoln and Thomas Carlyle to enrich his plea for a courageous verdict.
The case had taken on a life of its own. Nerves were frayed, and media exploitation ran wild. Race became a catchword for vindication or manipulation, depending on one’s outlook and location. Much of this was tragic.
In “A Lawyer’s Life,” Johnnie Cochran estimates that 25 million blacks died during slavery in the United States. He references the enormous suffering, humiliation and degradation of his people. Concerted efforts to deny literacy, family bonding and basic dignity were constant. This is the holocaust of black people.
Detective Mark Fuhrman became the defense emblem of this barbarity. A white woman claimed he wanted to bomb or burn all “niggers.” The same witness claimed Fuhrman wanted to manufacture claims against interracial couples. A second white woman claimed that the detective vowed that the “only good nigger was a dead one.” A black man testified that this police officer looked at him and said, “I told you, I would get you, nigger.”
A third white woman said Fuhrman used the “N” word more than 40 times. Fuhrman denied these allegations, asserted his Fifth Amendment privilege and was convicted of felony perjury after the trial. He later apologized.
Johnnie Cochran’s comparisons of Fuhrman’s mindset to that of Adolf Hitler generated controversy. Many representatives of the white and Jewish communities were outraged. In my opinion, his efforts to explain Fuhrman’s thinking were misinterpreted. He never said Fuhrman was a killer, and everyone should recoil from this ugly testimony.
None of this should distract us from the magic of this closing argument. Johnnie Cochran was the only lawyer to be named criminal defense lawyer of the year and civil trial lawyer of the year by the Los Angeles County Bar. Early in his career, he won 10 murder trials in a row.
Johnnie was the first lawyer to effectively and consistently sue the Los Angeles Police Department for abuse. Late in his career, he won a $240 million verdict against the Walt Disney Company. Johnnie L. Cochran Jr. was the greatest trial lawyer I have ever seen.