All right. The record should reflect the jury has withdrawn from the courtroom. Miss Clark, the last comment that you made, "If I thought for a minute there was a conspiracy"--
You are close, Miss Clark. I realize it is not a complete thought, but what you can argue is what the evidence shows. You can argue ethical obligations that Prosecutors have. I'm just cautioning here that you are close here. You are close to the line.
Excuse me. May I just ask for one point of clarification? The thought, as I completed it, is acceptable, is it not?
Yes. Let me just mention this. I have never had a Defense attorney make an argument like Mr. Cochran made, nor have I ever seen a Defense attorney get up and ask for jury nullification in this way.
I will reserve comment, but what I'm saying, your Honor, is that when a Defense attorney does take the gloves off that way, hit below the belt the way Mr. Cochran does, the law permits us to argue our ethical obligations. The court is aware of that. Under People was Beamon, under U.S. versus Wade, we have the right then to argue what our obligations are. I get to tell the truth, the truth that I have a luxury, they don't have a luxury. I didn't have until I joined this office. They have to represent guilty people and stand you before the jury and say it hasn't been proven, no matter how well it has been proven.
Yes, I object to that statement, guilty people. I am objecting to that. I think I have a right to do that, your Honor. I do.
Anyway, these are not remarks that I make to the jury, but when counsel takes off the gloves, makes personal attacks the way he has, saying basically that we are criminals, then we have the right under the law to correct that misimpression and to tell the jury we have ethical obligations that prevent us from pursuing a Prosecution unless we believe a hundred percent.
You have to be clear. You cannot infer that you have personal knowledge beyond the state of the evidence.
Your Honor, this--they already have. They have gone over the line. Now, as the court noted, the argument yesterday, and it is one that these Prosecutors have to live with, is that they put Mark Fuhrman on the witness stand, they--he testified in a way about--you know, Mr. Cochran accurately cited the record. He read from it. Talking about how he went through all this terrible personal anguish and all these outside issues were raised and he was presented as a totally credible witness. Now, these Prosecutors have to get up in front of the jury and say he is a racist and a liar. They have to do that because that is what happened. The jury is allowed to consider the fact that they were plainly taken by surprise by the perjury of their own witness. They also have a right to consider the fact that other officers probably knew these facts and never came forward. That is fair argument and fair comment on the evidence. What is unfair argument and unfair comment and clear law is for a Prosecutor to stand up and say that I prosecute police officers, Marcia and I are the ones with courage, and then to go on now and say that she used to be a Defense lawyer and now she is a Prosecutor and she has the luxury of dismissing cases if the evidence is not there and coming forward if she thought something was exculpatory, et cetera, and then vouching personally for the reliability of the evidence, is a highly, highly improper form of argument in this state, every state. They have gone way over the line and it has really got to stop. It has really got to stop. And I don't like to sit here and constantly say, "Objection, objection, objection, objection" to improper forms of argument. And the court is being patient and controlled in terms of overruling it, but this is way, way over the line. I mean, I have been teaching law for eighteen years, and I never heard this kind of stuff, and I dare say that people--I mean, it is amazing. It is amazing. They cannot say it. And what is particularly galling is that they are saying it when they are the ones that have to live with the fact that one of their principle witnesses perjured himself after they put him on. It hurts, but Mr. Cochran's comments with respect to that are fair on the evidence, and trying to vouch in this fashion is improper--improper rebuttal and improper form of argument period.
Mr. Scheck, what I heard also was you can't trust the messengers and you can't trust the message.
And Mr. Darden clearly cast himself as a messenger in his argument. That was a clear, clear shot at the integrity of counsel on this side, and they are entitled to respond.
Wait a second. I think that is incorrect, and please hear me on this. Mr. Cochran's arguments yesterday, Mr. Darden got up and said I'm just the messenger sending you evidence. Mr. Cochran got up and said the messengers in this case are the witnesses. The messengers are mark Fuhrman--oh, he did--and Vannatter. He talked about these messengers being deceivers and that is the argument. Now, I mean, I don't see how the court can allow this kind of vouching if you are inferring that there is some kind of, you know, metaphor cross-over here. Mr. Cochran has a perfect right, it is a total fair comment on the evidence, to talk about these Prosecution witnesses as messengers. If Mr. Darden chooses to cast himself as a messenger, too, well, that is fine, but I didn't interpret that as a comment on Mr. Darden. It was a turn of phrase. And he specifically talked about these witnesses, and to the extent that Mr. Cochran is pointing out that Mark Fuhrman was put up there first as a credible witness and now they have to admit that he is a liar, as he did, and they are distancing themselves, that is fair comment. What is unfair comment is for them to get up here and in this fashion vouch for every other witness and every other piece of evidence in a highly improper form. They have gone way over the line, way over the line.
I have cautioned and I have cautioned and I have cautioned them, counsel. Well, the California state bar is a bar that is unto itself and has its own rules.
I have read the code on this case and I understand that you can say what you can't say in other jurisdictions about showing screens and the rest of it, but in this jurisdiction and in every other jurisdiction there are rules about vouching and they have gone over that line.
The court should at least give a balancing instruction at this point to the jury that it is not the Prosecutor's personal views or personalities or anything else about the evidence that govern; it is their view of the evidence and they should take that.
What a Prosecutor may not do as a Prosecutor, may not express personal opinion or belief in a Defendant's guilt where there is some substantial danger that the jurors will interpret this as being based upon information beyond the evidence produced at trial. I have not heard that yet.
Well, that is--that is a different--that is a different improper form of argument, and I think actually Mr. Darden was pretty close to that when he was talking about everybody knows and yesterday he was saying things like he's a murderer. I think he actually went over that line. But let's put that aside. What I'm most concerned about--
Are you saying that there is a substantial danger that when a Prosecutor stands up and says that the Defendant accused of murder is a murderer, that that goes over the line?
No, no, no. I'm saying that you just read, in terms of a Prosecutor's obligation, he has got to say things like the evidence shows, we submit, and I think that in terms of rhetoric he went over that line. But let's put that aside. What I'm most concerned about, and the court frankly is not addressing here, the court can't be seriously suggesting that there--that a form of argument that says we are courageous, we know our ethical obligations, we are telling you that this evidence is correct, if I thought there was a conspiracy, I would come forward and tell you, all that, everything they have been doing this morning is an improper form of argument. It is improper vouching. And your Honor, I think you know it, and I think that we have to have an instruction here.
I have never had a Defense attorney make an argument like Mr. Cochran made, nor have I ever seen a Defense attorney get up and ask for jury nullification in this way.
I have been teaching law for eighteen years, and I never heard this kind of stuff, and I dare say that people--I mean, it is amazing. It is amazing. They cannot say it.
I don't want to hear any more 'I's.'
They have to represent guilty people and stand you before the jury and say it hasn't been proven, no matter how well it has been proven.
You are close here, counsel. You are close to the line.