The Last Word

 
By Louis D. Thorpe

March 6, 2023

Truth about lies
 
 

In his 1997 book, The Last Word America's very best lawyer writes, "Today, young lawyers are cheated of their legal education - an education that prepares them to represent people in their search for justice. When they emerge from law schools and have passed the Multistate Bar Examination, all nicely sanctioned by the American Bar Examination, all nicely sanctioned by the American Bar Association, most have lost contact with the hummannesss that distinguishes us from the machine. They are empty-souled and empty-headed, except for the multitude of rules and laws and have nice word games played with them that too often are not related to any human experience.

The American people are justifiably angry with the legal profession. Never in the history of the United States have there been so many lawyers and so few competent ones available to represent the ordinary citizen... I am convinced, after my more than forty years in the courts of this country, that many insurance companies would rather pay their lawyers two dollars rather than pay a just claim of a dollar on behalf of their insured."

Gerry Spense is mainstream and folksy, his views are not extreme, and today, what he said then is even more common and more relevant than ever before. In 2021, Kathryne M. Young, JD, PhD, Assistant Professor, University of Massachusetts, published the frequently recommended, scholarship article, What the Access to Justice Crisis Means for Legal Education and the following brief excerpt is rather self-explanatory.

"Despite enormous social, legal, and technological shifts in the last century, the structure of legal education has remained largely unchanged. Part of the reason so little change has occurred is that the current model mostly "works"; it produces a professional class of lawyers to populate the ranks of law firms and government entities. At the same time, for decades, legal education researchers have considered it practically axiomatic that law school has room for improvement.

In this Article, I argue that the access to justice crisis-a deficit of just resolutions to justiciable civil justice problems for everyday people-compels an overdue examination of legal education's scope and purpose. If we assume that lawyers should have a major role in solving the access to justice crisis, as opposed to simply meeting individual legal needs, law schools must prepare lawyers to serve this role. I point to three categories of improvement that centering access to justice would necessitate: teaching a greater versatility of thinking and problem-solving, imparting a broader understanding of the ecosystem of justiciable problems and lawyers' place in it, and structuring law school to impart the cognitive cornerstones needed for successful legal practice.

Placing access to justice at the center of legal education would strengthen, not supplant, the traditional model. In addition to equipping lawyers to address everyday Americans' justice problems, this Article's proposals would make the legal profession nimbler and more resilient to social, economic, and technological changes, and help overcome some of the profession's most intractable problems."

More excerpts from O.J. the Last Word

CHAPTER ONE

I THOUGHT THAT if O.J. called me, called me and spoke to me in that voice as deep and pure as fresh hot pudding, I probably would take the case. In fact, when he did reach me, I thought he was probably innocent. The police, almost by reflex, accuse the husband when the wife has been murdered. You can look at the statistics: Husbands are the ones who kill wives. And in celebrity cases, the police have to look good--the whole world watching and all. The police have to make their public statements and take care of their jobs. They have to protect the politicians, their bosses--the mayor, the chief of police. Justice isn't the issue. Careful police work isn't imperative. The rights of the accused in such tabloid cases don't worry the officials. They play to our anger, our fear, our compassion for the victims, but justice--despite their deep, righteous, tearless cries--does not move them. A conviction is the issue.

The police need a conviction! Let us somehow, in some way, get the "twelve-headed monster," as Marcia Clark called the jury, to hate the defendant, to see in the jurors' frightened eyes the defendant covered with the blood of an innocent victim--the pretty, the powerless, the near perfect victim. Let us somehow get the court to order him up onto the executioner's gurney, where the state's masked killer will stick the needle in him, or let us at least put him away in some damnable dank hole for the rest of his life.

Yet when the case does not involve a celebrity, when the media is not covering the murder of a famous heiress or the wife of a superathlete, no one seems to care. "Willy" may have killed half his neighborhood in a crumbling ghetto somewhere, the bodies strewn across the rotting place, and the police remain calm, their eyes placid. When they get around to it, after the long morning coffee, they will haul in some snitch, make a deal with him, slap a crackhead up against the wall--just like in the movies--and get him to point the finger. And they'll make their arrest. Day after day we are still confronted with the same boring, senseless crime, the same swaggering gangs of kids, the violent talk, the hard faces of the young that should be open and innocent. The pain. The death. But no one gets excited. You can kill everyone in a fallen-down project somewhere, one person at a time, a couple at a time, and the jobs of the police remain secure. The mayor takes no heat. The media doesn't get excited. No one wants to read about how a mother with nine little snot-nosed kids living in a project got her brains blown out by some drugged-up puke. That's what some police call a suspect who doesn't live on the right side of town--a puke. When there's killing in these tough places, the police process is something like scooping up roadkill off the highways. The process doesn't enter our living rooms because Hard Copy can't make a story about it. No one cares about the puke or his victim. And in the morning the cops can have a third cup of coffee and a couple more cigarettes before they start smashing heads. But when a celebrity's wife is dead, that's another story. We gotta have justice.

"We are horrified," the D.A. says. "We are very concerned about the victims and the family." The D.A. makes his public statements. And the police and the D.A. begin what has become known as the "demonization process" always associated with a big media case. It's what you do to convict the accused before he goes to trial. You poison the well of justice. You leak the worst details to the press, factual or not. You play up the blood, the horror. You know the people will begin to get stirred up. If you've ever heard the chickens in the chicken house when an old raccoon gets in at night, you know how it sounds: like a freight train going through, thousands of wings beating, the crazy screeching, the poor things panicked in the night, afraid of their own sounds, and of the raccoon who has already stolen his dinner and gone off to feast.

I didn't believe O.J. Simpson could have committed this crime. Who would believe it? Not this smiling man, this good-natured man, this great athlete, this talented hurdler of objects in airports, this man whom we forgave for his poor acting because he was a decent fellow. "The Juice." God, I used to love to watch him run. I would go to sleep at night doing a Walter Mitty thing--I was the Juice. I would slip off left tackle, little hole, the swiveling hips--just give me a block, half a block even, and I'm gone. The Juice couldn't have done this thing, the slashing, the throat of the mother of his children cut down to the spinal cord, her head almost off, the other nameless kid, whoever he was, butchered, the blood at the front door like the blood on the floor of the slaughter shed at the packinghouse. The police must have gone wrong again. Couldn't find the murderer. Didn't have a clue. Charged the husband as they always do. Mindless. Automatic. But the statistics say they will be right most of the time. And predictably they had already started the demonizing process. You could foresee the rest, the evidence leaking to the media. You could recite the next steps you'd read about in the paper like the next line of bad verse. And Hard Copy and the others! What a story. What a sumptuous feast. They loved it. They had something to sell--this diamond of a man dunked in blood. You sell the crime. You sell the horror, the sex, the decadence. Oh, they loved the blood, the blonde, and the black. The best screenwriter in America couldn't have sold a racist screenplay like that. But this wasn't cheap Hollywood fiction, not yet. This was for real. The Blood and the Blonde and the Black.

So I hung on to the presumption of innocence in the case. The Juice couldn't have done it. That's what the presumption of innocence is about, among other things--the legal codification of the proposition that man is fundamentally good. And the presumption stops the police from smashing in the front door and pointing their long white fingers at you whenever it suits them. We have constitutional guarantees. Besides, I was the Juice--at least, just before I stepped over the goal line and dropped off to sleep.

By the time O.J. called me in Jackson Hole, the so-called Dream Team was mostly in place. My old friend Howard Weitzman had already left the case, and Robert Shapiro, whom I also knew, had been hired. From what I could tell, the high-school-football mentality was in operation. The hangers-on, the guys who couldn't carry the ball across the other side of the hall, were still clinging to the big letterman, soaking up his reflected glory. O.J. had his business lawyers, his business associates, his old friends, the inner circle, and they were making the decisions for him. His legal retinue consisted of men who wouldn't have been able to try a case if all they had to do was read it from a movie script. You see it all the time. These were the people calling the shots for the Juice--the elite in the country club who made deals but who had never been in court all day and then had lain awake half the night looking up at the ceiling, seeing their client being dragged off, his head shaved clean as an egg, sweating, his eyes wild, the chair waiting. These were the men who had never had to say to themselves, "It's my fault. If I had been a better lawyer, better prepared, if I had had a quicker wit, if I hadn't been so afraid, if I had been a real lawyer instead of this piteous, beaten bastard who made a bad final argument, maybe he wouldn't have to die."

Many of the people making the decisions for O.J. played golf with a generous handicap and drank their Tanqueray martinis. They knew a lot, all right, but most of it was about movie percentages. But some had money, and they hung out in the right restaurants and knew a lot of movie people and high flyers and flitted in the giddy air that is Hollywood. And O.J., who wouldn't make up his mind whether he should kill himself or not, wasn't thinking much about lawyers--not then. So the lawyer decisions were made by "the guys," the hangers-on who at that moment claimed O.J. was their best friend in the world.

The idea of a Dream Team was the media's invention. The notion prevails in America that if you have enough money and know the right people, you can buy whatever you want. You can buy happiness, buy the cute little blonde with the cute little whatever it is. You can buy a new liver if yours is rotted out after having filtered a tankerfull of whiskey through it. You can buy your way to heaven if, after having stolen from the poor and the middle-class mom-and-pop investors all your life, you give a small percent of it to charity. And of course, you may not always be able to buy justice, but a lot of money helps.

Yet some perverse power is at work here. You see it all the time. The rich are taken care of by the carriage-trade physicians. The fact that such doctors charge ten times what the doctor down the street charges is seen as a surefire indication of their worth. A doctor who bills twenty thousand dollars for a simple appendectomy must be a lot better doctor than one whose fee is under a thousand. It stands to reason--you are buying a Rolls, not a Honda. The problem is that what the carriage-trade doctors offer are the big reputations, not necessarily the big skill, the talented hands, a healer's genuine compassion. They, too, hang out with the so-called smart people, and that makes them smart. Besides, it's a lot easier to have a big reputation than it is to have had your hands in the bloody bellies of hundreds of anguished human beings, most of whom can't pay your bill. It's more profitable to office in the high-rent district and cater to the silk-underweared rich than to have sweat out the recovery of the maimed in those bleak rooms where people are weeping and dying, a place where the dead are being hauled off to the morgue. Who wants to look into the worn faces of old wives and the blank eyes of motherless children paralyzed with fear? So it is, as well, with carriage-trade lawyers.

Carriage-trade lawyers usually don't know very much about much that counts. At the same time, the rich think all they have to do is pull out their checkbook and everything will be all right and the charges will evaporate under the heat of money. All they have to do is hire the lawyer with the big reputation--the one they play golf with, or the one their golf partner plays golf with. The rich get mixed up. They think that because they have money, they must also be smart--that money is equivalent to brains. And of course, the more money they spend for a lawyer, the more brains the lawyer must have. The media thinks that, too, and therefore America thinks it. Money and talent, money and smarts, money and justice--all are seen as comparables. But when it comes to picking a doctor to save my life, let me have somebody with a bloodied gown who has stacked enough corpses up in front of his office to have finally learned how to do it right. And as for a lawyer, give me somebody who has sweated sweat as thick as syrup in the courtroom, somebody who can crawl into my hide and feel my fear because he knows his own. And you can't find those lawyers in the four-star restaurants, or on those pretty groomed golf courses. The carriage-trade boys, the hangers-on, the flitters in the high social places, the monarch butterflies of Hollywood, don't even know the good trial lawyers. Never heard of them. The only lawyers they know have a decent handicap and eat at the Eclipse.

So the Dream Team was a myth--the fictional child of the media. And America bought the myth. I am not saying that the lawyers who represented Simpson weren't good trial lawyers. I only say that they were a team picked by those who weren't. The Dream Team were lawyers whose skill could have been duplicated a hundred times over in L.A., and in countless other towns across the land. Robert Shapiro and Johnnie Cochran themselves never claimed they were the greatest trial lawyers in America. The media claimed it, and then as soon disclaimed it. They were the Dream Team, and the next day they were paraded across the screen as lawyers who had pulled a fast one on America. One day they were the best lawyers money could buy, and the next they were vilified by every author who had a book to sell.

America buys whatever America is told to buy--Bud or Big Macs or Bugle Boy pants--and so it was with this Dream Team. You have to believe what you hear on TV with your own ears, and what you see on TV with your own eyes. What else is there to believe? The trouble is that the people who create our conventional wisdom and fuel our daily fantasies are mostly kids under thirty. Most are underpaid producers working ungodly hours who have rarely been encouraged to hatch an original thought of their own because they don't have time, and if they did the result might be too frightening to behold. They are also people who are frantically, pathetically driven by the invisible whip of ratings. And things get distorted through the media's ratings glasses. How can news be news when ratings, and the advertisers who buy time accordingly, govern what will make the news? The producers believe that simple, hard, unvarnished truth won't sell. People want to hear the bad and the horrid--about husbands who get their penises amputated and baby beauty queens who get murdered, and Lord knows what else. People want to chortle and gasp. People want to believe that Shapiro and Cochran are fancy lawyers who can be bought for big money but who, somehow, are less than ethical, less than competent, or whatever at the moment will sell.

My experience with Bob Shapiro tells me he is a caring man who is deeply aware of his public persona. Who isn't? I'll fight at the first words insinuating I'm dishonest or disingenuous. As proclaimed in Proverbs. "A good name is rather to be chosen than great riches." Shapiro's effectiveness as a lawyer has been his friendship with lawyers and judges and others in positions of power. He's an obliging sort, the kind who, if you ask for a favor, will provide it if he can. I remember having asked him to come to my nonprofit trial lawyer's school to give young trial lawyers a short course on how to deal with the media in high-profile cases. After the Simpson case he should have been the world's expert. He could talk about his good days and his mistakes, and he did. He came to Wyoming and gave of his time without fee, and he talked to the young lawyers with a great deal of energy and wisdom. And Shapiro's shortcomings, if we can call them that, seemed quite normal. That he had attempted to distance himself from the "race card"--a strategy that he had more or less invented--and that he got cross-wise with some of the other members of this Dream Team was simply the case of a lawyer trying to preserve his good name--his asset. One can become overly sensitive in the high glare. One can lose perspective when one is constantly under the lights. Shapiro may, indeed, have been eaten up by the very media that spawned him. The media is a dangerous mother. It loves to devour its offspring.

We are too quick to criticize whoever is out there and to adopt the so-called conventional wisdom offered up by the pundits and the talking heads. Some writers claimed that Shapiro, yes, Cochran, too, had never successfully defended a murder case before the Simpson case. Shapiro, they said, was a deal maker, a plea-bargainer. But no one dared say he had no trial experience. His experience became evident during the cross-examination of a witness. And you can't make deals if you are ineffective as a trial attorney, any more than you can fight a duel without a pistol. Watch the impotent lawyer walk into the prosecutor's office to make a deal for his client. You can see him huddled there, all tight and choked up, the prosecutor sitting back, his feet propped on the desk, the smirk on his face. The prosecutor's thinking, "This guy couldn't find his way into the courtroom even if I led him by the hand." You can't make deals with a prosecutor if you can't back up your talk. And Shapiro not only could try a case, he could also win over both prosecutors and judges with a charm and style I was never able to cultivate myself.

As for Johnnie Cochran, well, maybe he had or maybe he hadn't successfully defended a murder case before O.J. One writer who himself probably hadn't tried a murder case in quite some time said, "Prior to the Simpson case, however, although he may have done so, I had never heard of Cochran ever winning a murder case before a jury." He went on to argue that the only case Cochran had tried that even received "minimal" coverage "was when he defended a Black Panther named Elmer `Geronimo' Pratt in 1972 for having murdered a white schoolteacher on a Santa Monica tennis court." Cochran was said to have lost the case and his client was sentenced to life imprisonment. Yet twenty-five years later Pratt won his appeal and was released from prison. So who never won a case? I say we criticize too quickly from positions that are always plenty safe.

Although I have tried a good many media cases, most of my trials, particularly in the first twenty years of my career, were fought in small courtrooms without a newspaper reporter within fifty miles. You don't become a skilled trial lawyer by handling only media cases. You become a skilled trial lawyer laboring year after year for the poor and the helpless, often without fee. You fight in dingy courtrooms before venomous judges and against surly prosecutors, the kind who stand in the courtroom on run-over heels and who would just as soon whip your ass in the alley as in front of a jury. And you try your cases in virtual anonymity, cases with tougher evidence laid on your clients than in the Simpson case, and with no help, no funds, no expert witnesses, no glamour, and you try those kinds of cases year after year. Then one day you find you have mastered some of the fundamental skills required of a successful trial lawyer, and some writer attacks you, saying, "I never heard of any cases the guy ever tried." But the great trial lawyers in this country work those intense fourteen-hour days in little towns in Oregon, in the forgotten hamlets in Alabama, and in the wretched neighborhoods of Chicago and Cleveland. We never hear of most of these. But these lawyers know how to try a case. And they usually know a lot more about it than the carriage-trade lawyers who claim they are "litigators" and who turn off a decent jury of twelve the first time they drive up to the courthouse in their Jaguars and swagger into the courtroom with those little doodads flopping on their shiny loafers, wearing their thousand-dollar pin-striped suits. If you want to be defended, find a lawyer who has lived a career trying to extract citizens from holding pens and who has labored in the courtroom, mostly in anonymous, pathetic cases. He may have baggy pants and scuffed shoes, and his coat may be frayed at the elbows, but he knows how to talk to people, and he cares about his clients."

That's right folks, it is called genuine access to justice and it should be very common, not rare. I listened with amusement to the pundits claiming that Shapiro and Cochran didn't have enough experience in murder cases to try the Simpson case. I have never tried two cases that were alike. Although I have tried many a murder case, I have never found that the trial of one is very helpful in the trial of another. To boast that someone has tried a hundred murder cases doesn't mean he can win a single murder case. He may have lost them all. Yet the lawyer who has tried a whole spectrum of lesser criminal cases may have developed trial skills that permit him to win whatever case he tries.

When O.J. did call me, I was sitting in my study looking out at the Tetons. At my bird feeder on the deck the evening grosbeaks were competing with the pine grosbeaks while the yellow-bellied nut-hatches were being run off by a small red mountain squirrel. And when the squirrel's back was turned, the birds quickly grabbed sunflower seeds before he was on them again. The birds and squirrels, I suspect, are a lot smarter than men. They don't fight wars in which whole flocks of innocents are killed. They don't cut the throats of their mates. They just play their games at the feeder, and when it's over, everybody gets something to eat. As I watched them, the phone rang and Cathy Randa, O.J.'s secretary, said O.J. wanted to talk to me, and she patched him through.

"Read your books," he said. That voice. "You're my hero." I am his hero? My God, how can this be? Does he put himself to sleep at night fantasizing that he's Gerry Spence making his closing argument to a jury in a murder case?

I didn't know what to say. I think I said something like, "It must be hard for you, O.J."--something like that. I must have told him I was sorry he was penned up and that I wished it wasn't that way for him.

He said, "I want to tell you how much I admire you for what you do, and all." What was I supposed to say?

"Thank you," I said.

"And I just wanted you to know that I am innocent. Absolutely innocent. There is nothing about what they say that's true." The deep rich pudding of a voice. "I loved Nicole. I wouldn't do anything to the mother of my children. You got to believe that." And then he went on about how he had never done anything to harm her. They'd had their beefs like other married people, but he loved her, they were trying to get back together. Things like that.

And that was about it. He didn't ask me to defend him. He didn't ask me to come see him. He didn't tell me anything about his case. He just called me up and laid his story on me, and it sounded right. And he sounded a lot better than I would have under the same circumstances. If it had been me, I wouldn't have been able to say a word. If I had been charged with killing my wife, I wouldn't have been able to lift my head off of the cement. I wouldn't know where to turn. I wouldn't know whom to call. I wouldn't know what to say. I would be reduced to a couple hundred pounds of blubbery impotence. Meat on the floor. But then, I never did carry a football over the goal line, except, of course, when I was O.J., just before I fell asleep.

That's right folks, it is called access to justice and it should be very, very common, not exceedingly rare.

Next: How reason has failed us all (a must read).