O.J. is Dead, But Our Duty to be Zealous Advocates Endures

Stacey, a Black woman with black hair, wears black-rimmed glasses, a white blouse, black jacket and gold jewelry.By Stacey D. Rubain

The recent death of O.J. Simpson brought out reflections by many on the 1994 murders of Nicole Brown Simpson and Ronald Goldman, and the enrapturing period that ensued. From the white Ford Bronco slow-speed police chase to the image of Johnnie L. Cochran Jr., wearing a black knit cap while arguing before the jury, many of us were glued to our televisions for over a year because of the larger-than-life image that Simpson held in American pop culture. And while even in death, O.J. Simpson remains a polarizing figure, his double-murder trial, famously dubbed the “Trial of the Century,” remains one of the most fascinating trials in American history. It changed the public’s view of lawyers for a generation. And the names of so many people involved in the trial – Marcia Clark, Christopher Darden, Johnnie Cochran, Robert Shapiro, F. Lee Bailey, Barry Scheck, and Mark Fuhrman – are indelibly etched in our memories for their roles in Simpson’s trial.

From the moment the LAPD zeroed in on Simpson, his lawyers outmaneuvered the prosecution at seemingly every turn. Simpson’s defense team employed a strategy that was quite sophisticated, in that from the earliest days of their representation of Simpson, the defense team understood the intangible and tangible elements necessary to successfully defend Simpson: assembling a team of seasoned and venerable lawyers and experts; using defense experts to impeach and undermine prosecution experts; using publicity to shape the public’s perception of Simpson; frontloading defense theories into the public consciousness early and often so that those theories gained traction and acceptance prior to trial; challenging everything, no matter how minimal; disrupting the prosecution; and (almost) always presenting to the public as unified and supportive of Simpson’s innocence. Simpson’s defense team’s zealous advocacy was relentless and full throttle, and ultimately paid dividends, in the form of Simpson’s acquittals.

In contrast, the prosecution team fumbled more than it gained any yardage. Admittedly, the prosecution was hampered with a flawed and troubling police investigation. But whereas Simpson’s defense team always appeared to be in control of the narrative and its case in general, the prosecution consistently appeared flat-footed and acted as if it was playing defense, instead of offense.

Marcia Clark, a seasoned prosecutor and trial attorney, was portrayed horribly by the media. She was depicted as vacillating between arrogance and exasperation. And though there were many aspects of Simpson’s wild trial that were in fact, exasperating, Clark was criticized quite harshly for how she showed her frustration. Sexism was on full display when any aspect of Clark’s performance was evaluated or analyzed. Justified critiques of Clark’s trial strategy and courtroom performance were overshadowed by scrutiny only reserved for women – Clark was mocked and demeaned for her changing hairstyles, her makeup and wardrobe choices, and was even labeled a “bad mother” during the midst of a child custody fight against her estranged husband. The media amplified Clark’s flaws, missteps and displays of unprofessionalism, but never applied the same treatment to Simpson’s team. And as for Clark’s colleague Christopher Darden . . . well, Darden, simply put, was not ready for the big leagues. He was often petulant and immature when addressing the court. And he appeared consumed by an inferiority complex that was the result of his love-hate relationship with his mentor-turned-adversary, Johnnie Cochran. Over the six-month trial, Darden’s character flaws severely hampered his capabilities and ultimately rendered him ineffectual before the jury.

Surprisingly, recalling these details of the O.J. Simpson case has been motivational and inspirational to me. It has reminded me, an attorney in her 25th year of practice, of the power of the criminal trial attorney. Not many people can endure the stress of high-stakes trial work and have the courage and conviction to stand before a jury and convince them to render a verdict in their favor. As it relates to criminal defense attorneys, or “street lawyers” as I like to call us, not many people have the stomach and fortitude to participate in a process where our clients are extremely disadvantaged. But time and time again, criminal defense attorneys rise up to the challenge, and against the odds, they disrupt, scramble, and claw their way to good outcomes for their clients.

Criminal trial work is not for everyone. Unlike the “Trial of the Century,” criminal trial work is completely unglamorous. And though often at odds with one another, both prosecutors and criminal defense attorneys alike can agree that each other’s work is thankless and that neither is likely to get rich. But we should also agree that prosecutors and criminal defense attorneys do honorable and important work. Representing the interests of people and our communities, and upholding the Constitution, is nothing to sniff at.  However, we cannot grow jaded or complacent, no matter that we may feel that we have lesser and lesser ability to influence or effectuate positive outcomes.

Most importantly, we must never lose sight of our duty of zealous advocacy. For criminal defense attorneys, this duty extends to all clients, regardless of their guilt or innocence. This duty commands that we do not judge our clients, or mete out effective, competent, and zealous representation to our clients based on culpability. Rather, we must remain loyal to all of our clients, and protect and pursue their interests. This means that like Simpson’s “Dream Team,” you may have to zealously represent a controversial (and probably guilty but definitely abhorrent) client.

Never forget the indisputably zealous representation and superior performance of Simpson’s defense team. My charge to prosecutors and criminal defense attorneys alike is that when you get your next case, remember the “Trial of the Century,” and channel your inner Johnnie Cochran, F. Lee Bailey and Barry Scheck, and outwork, outmaneuver, and outmatch your opponent, through effective and zealous advocacy.