Texas Independent Bar Association Austin, Texas John G. Jasuta Charles Mallin Gail Kikawa McConnell Angela J. Moore

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2 Published By Texas Independent Bar Association Austin, Texas Web Page: Copyright 2013 Texas Independent Bar Association and the following Commentators Alan Curry Helena Faulkner Jeffrey S. Garon Lee Haidusek John G. Jasuta Charles Mallin Gail Kikawa McConnell Angela J. Moore Editor-in-Chief: John G. Jasuta Doug O Brien Greg Sherwood David A. Schulman Kevin P. Yeary Clicking a hyperlink (such as a judge s name) will load the linked opinion or document in your web browser. It is TIBA s policy that commentators do not summarize or comment on cases in which they were involved. Volume 21, Number 42 ~ Monday, October 21, 2013 (No. 983)

3 and how it all went down. Featured Article OJ, George, and other Trouble Makers RETURN TO TABLE OF CONTENTS There are certain cases which, as a defense lawyer, I find problematic. Not cases involving my own clients, but, rather, cases which don t involve me at all, but which are to a greater or less degree high profile cases. These are cases in which I personally believe the defendant to be guilty, but also want the defense lawyers to do a good job for their client. I guess this started during the OJ Simpson case nearly twenty years ago. I remember well when Admittedly, from the beginning, I believed OJ was guilty. Nevertheless, I watched the whole thing unfold right there on the television, like everyone else. I recall eating popcorn and watching the 35 mph white Bronco chase with friends. It was both high drama and high comedy. I remember how CNN seemed to go from the boring CNN news station (I more frequently watched Headline News) to the all OJ all the time station. The guy was everywhere, simply everywhere. Then, eventually, came the trial. It seemed to me like the trial was one prosecution blunder after another. A team of very competent journeymen prosecutors, not really used to the limelight, up against a well heeled team of very high profile defense lawyers. Skills not withstanding, they were just in over their heads. David A. Schulman, one of the founders of TIBA, has been a co-author of this report for many years. He was a member of the Court of Criminal Appeals' staff in , and has been lead counsel in hundreds of direct appeals and habeas corpus proceedings. David reviews every published criminal case from the Court of Criminal Appeals and every Court of Appeals on a daily basis. He has been Board Certified in Criminal Law since 1991 and was one of the first attorneys to become Board Certified in both Criminal Law and Criminal Appellate law. See his website at TIBA s Texas Law Reporter - Vol. 21, No October 21, Page 1

4 Marcia Clark, a very experienced prosecutor, found herself being discussed on national television -- not for her prosecutorial skills, but for her wardrobe. This lead to her visibly altering her public image, allegedly complying with specific instructions given to her by a team of media consultants. Clark s male cohort, Christopher Darden, another very experienced prosecutor, also wasn t exempt from the television lens. Who can forget the if the gloves don t fit fiasco? Clark s and Darden s efforts were undermined, of course, by the totally inartful manner in which the police investigators collected and handled the evidence from the crime scene. One can easily argue that, but for the miscues by the police, Simpson would have been in prison in 2007, when he and several accomplices entered a hotel room in Las Vegas and robbed the occupants of sports memorabilia, resulting in Simpson being convicted in Nevada exactly 13 years to the day after he had been acquitted in Los Angeles. After the 1995 trial, both Clark and Darden moved on to bigger and better things, and both appear to have much more comfortable lifestyles. I cannot help but wonder, however, how things would have turned out if the pair s handlers had left them alone to try the case the way they had each tried many other cases successfully. Although both of them had fifteen years of successful prosecutions behind them, the Simpson case is the one for which they ll be remembered. In any event, there I was, in October of 1995, along with about 100 other lawyers at a lunch time meeting of the local criminal defense lawyers association. So many lawyers were interested in the outcome of the case that there was a television set up so we could watch the verdict being announced. I don t think anyone one of was watching to find out whether Simpson was TIBA s Texas Law Reporter - Vol. 21, No October 21, Page 2

5 guilty or not -- we all had our own opinions, and few thought him not guilty. No, we were watching to find out whether the defense dream team had pulled it off. I also believe that, like me, many were torn between wanting a guilty verdict because we believed Simpson was guilty and wanting a not guilty verdict for our brother defense lawyers. As everyone knows, they did pull it off and the debate over whether Simpson got away with it continues. Personally, my feelings about the verdict were pretty well summed up by the expression on the face of Simpson s original attorney, Robert Kardashian, when the not guilty verdict was announced. Compare Kardashian s dead panned expression to the jubilant reaction of another of Simpson s attorneys, Johnnie Cochran, who was standing immediately to Simpson s left. So, did Simpson get away with it? I don t really think so. Following his acquittal, he lost most everything he prized. He was no longer welcome at the country club; you stopped seeing him sprint through airports in Hertz commercials, and I don t think he s been in a movie since then. He was found liable for the killings in the wrongful death civil trial and much of his riches were seized. For a number of years, when the topic arose, I would use my standard answer -- No, he simply didn t go to prison. I still believe that to be true. This set of mixed feelings was renewed earlier this year during the George Zimmerman case. Different from 1995, however, is the presence of social media. In the time the Simpson case was pending, it wasn t the main topic of discussion at lawyer get together. It was discussed, quite a bit, but, other than the meeting when we watched TIBA s Texas Law Reporter - Vol. 21, No October 21, Page 3

6 the verdict being announced, there were no group discussions. Facebook, Twitter and other social media sites changed that dynamic. I m not a user of Twitter, LinkedIn or several other social media sites, but I do use Facebook. It was interesting, during the Zimmerman trial, to see how many lawyers shared my feelings about the case, mixed as they might be. I did notice quite a few friends commenting on the performances of both the prosecution and the defense teams, and quite a few commenting on whether they thought Zimmerman was guilty. Like the lawyers discussing the Simpson case, few thought Zimmerman was not guilty -- most thought he was guilty -- but found themselves not so secretly rooting for the defense team. The Simpson and Zimmerman trials are not the only cases in which I have experienced these feelings. There have been many over the years. Some made Court TV, some didn t. There is a local murder case being tried currently in which I have the same feelings as I did with Simpson and Zimmerman, much more like those in the Zimmerman case, because it involves a castle doctrine defense and the killing of a much younger unarmed man. Maybe that s what prompted me to sit down and write this article. Who knows? Once upon a time, I gave a speech to a Panhandle Lions Club lunch which I called Sleeping with the Enemy. I discussed the drug problem in their community and how I felt about it as a parent and step-parent living with three teenaged girls. I closed by discussing my feelings about representing my clients charged with drug crimes. These two sets of thoughts are not unrelated. I never want drug dealers to get away with it, but I m always pleased when a defense lawyer I know hears that famous two word verdict for his or her client, regardless of the charged offense. I ve kicked this issue around a little with John (Jasuta). We agree that in these high profile cases, it would be better if television broadcasts weren t involved. John says he can t help but think that no one gets a fair trial when Nancy Grace is around. Our word to the wise -- if you are going to off your wife, make sure she s not pretty, or that you re not pretty. Ratings can literally kill you. TIBA s Texas Law Reporter - Vol. 21, No October 21, Page 4