A Lawyer's Life
by Johnnie L Cochran
Why Johnnie Can't Lead
A review by Justin Driver
In October 1994, Charlie Rose moderated a forum at the 92nd Street Y in New York.
Although the panel featured three speakers, spectators turned out largely to see
William Kunstler and Alan Dershowitz renew an old argument concerning the proper
role of lawyers. Kunstler supported the activist-lawyer approach to the law, which
requires attorneys to agitate for social justice. Dershowitz supports a more process-oriented
approach to the law, which requires vigorous representation even of clients who
are suspected of wrongdoing. While the two conceptions of the lawyer are in opposition,
both are fueled by idealism which may explain why the client lists of both lawyers
have included deeply repugnant individuals.
Until his death in 1995, Kunstler was the archetypal movement lawyer. He thought of himself as a "people's lawyer" and famously declared that he represented only people who had causes he could support. "I only defend those whose goals I share. I'm not a lawyer for hire," Kunstler intoned. "I only defend those I love. I feel alive when I have a cause." Here is his conception of the vocation of the activist lawyer: "He is activated, not by the promise of fame and fortune, but by the sharing of a common cause with those he represents. I no longer know where the movement ends and the law begins. In fact, for me now there is no significant dividing line." Kunstler jettisoned his requirement to love clients when he started defending mob bosses in the 1980s, but he never lost his faith in the Movement.
Dershowitz, by contrast, believes that defense attorneys should cherish the process. In his many books, he consistently betrays no delusions about the innocence (or lack thereof) of the overwhelming majority of criminal defendants: "Any criminal lawyer who tells you that most of his clients are not guilty is either bluffing or deliberately limiting his practice to a few innocent defendants." Whether an individual is actually innocent of the alleged crime plays no role in Dershowitz's selection of clients, some of whom have included Michael Milken, Leona Helmsley, Mike Tyson, and Claus von Bülow. In fact, Dershowitz once proclaimed that "almost all of my own clients have been guilty." Still, the adversarial system of American justice requires his exertions: "Once I decide to take a case, I have only one agenda: I want to win. I will try, by every fair and legal means, to get my client off without regard to the consequences." While Kunstler felt alive when he served a cause, Dershowitz needs only a case to feel enlivened. Drawing on Holmes's conception of the attorney articulated in "The Path of the Law," Dershowitz argues that his job as a lawyer is to predict how courts will rule: "I am not a cheerleader. In this respect, my job is like that of a radiologist. I must read the X-ray accurately, without giving the patient false hope."
Not surprisingly, Dershowitz and Kunstler regarded each other with utter contempt. In the late 1970s, Dershowitz called Kunstler a "race-baiter," and later "the David Duke of the legal profession." Kunstler charged that Dershowitz relied excessively on his students, made a poor civil libertarian, and allowed money to motivate his actions: "as long as the color was green you could get Dershowitz on board." The two traded strikingly similar charges of intellectual obstinacy. Dershowitz said of his nemesis that "he can contort everything and present the argument that he is right and everyone else is wrong." Kunstler charged that Dershowitz is "extremely vindictive to anyone who doesn't share his beliefs on everything." Despite all their differences, the two men had one thing in common: neither has ever been frightened of publicity.
The tension between Dershowitz and Kunstler seemed to have cooled considerably by the time they appeared together at the Y. The two even engaged in some amusing banter. (When Dershowitz called Lorena Bobbitt a "feminist Dirty Harry" and argued that "we should not encourage taking the law into your own hands," Kunstler retorted, "That isn't what she took into her own hands.") Still, their conceptions of lawyering could not remain submerged for long. Dershowitz struck first by castigating Kunstler's "black rage" theory to explain why a Jamaican man had killed six people on the Long Island Railroad. "What Bill Kunstler describes as a defense I think most of us would call simple racism," Dershowitz remarked. When asked if he inquires whether clients are innocent, Dershowitz happily extolled the process-oriented approach to law. "I have three rules," Dershowitz said. "I never believe what the prosecutor or the police say, I never believe what the media say, and I never believe what my client says." Kunstler, meanwhile, took joy in playing the activist lawyer to the end and challenged Dershowitz for representing O.J. Simpson. "I don't take spousal murder cases," Kunstler sniped.
Johnnie L. Cochran jr. did not attend the debate that night, but I have no doubt that he would have declared that both men were right. Cochran derives himself from conceptions of the lawyer embodied by both Dershowitz and Kunstler, leading to an awkward notion of the lawyer's vocation in which contradictory ideals are willfully joined and then corrupted for the sake of convenience. At moments in Cochran's new book, his second lackluster memoir in the last seven years, he sounds remarkably like the process-oriented lawyer praised by Dershowitz. "If one man cannot get a fair trial," he writes, "no matter how hideous his crime or evil the man, none of us can be certain of getting a fair trial." Similarly, in Journey to Justice he wrote: "Once engaged, defense attorneys must give themselves without reservation to protecting the constitutional rights of each and every one of their clients. For it is the zealous defense of the individual however unpopular, however revolting the alleged crime that guarantees the right of the peace-loving, law-abiding majority to live secure in its freedom."
But Cochran also appropriates Kunstler's romantic (and equally self-promotional) model of the activist lawyer. He has remarked upon the strong identification that he experiences with a client: "I looked down and saw that my hands were shaking, not with apprehension but with the power of revelation.... Being a lawyer means not only sharing the pain of other people's suffering but also accepting the burden of their trust. In the final moment, being a lawyer isn't about winning or losing. It's about keeping faith." Cochran also cites the Brown v. Board of Education decision as the pivotal factor in the development of his desire to become an attorney the epiphany of his activist-lawyer narrative: "The Supreme Court of the United States had ruled and the citizens accepted it. It made me appreciate the power of the law to change society, to change people's lives. And I wanted to be a part of it. I wanted to be a lawyer." Cochran even goes so far as to affect some of the love for his clients that Kunstler professed. When writing about his lengthy work to free a Black Panther, Cochran gushes that "I owe Geronimo Pratt not only a debt of justice but one of love." Although he never describes himself as loving O.J. Simpson, it is clear that he strongly identifies with Simpson in the classic manner of a movement lawyer. "It is striking to me how desperately some people really want to punish him for not being convicted of murder in his criminal trial," Cochran writes. "They just can't let him be."
Cochran does not aimlessly shift back and forth between the models of lawyering articulated by Dershowitz and Kunstler. He is a carefully calculated man. He appeals to the Kunstler model in order to lay claim to being an African American leader. But he is often involved with clients who cannot be grafted onto a cause, no matter how broadly defined. This is where his halfhearted embrace of the Dershowitz model comes in. Whereas Dershowitz honestly evaluates dubious claims of innocence, Cochran is hampered by the knowledge that leaders are not supposed to associate with scoundrels. As a result, he feels compelled to play agnostic about all of his clients' innocence, Simpson included: "I wasn't at the scene on June 12, 1994. Only the victims and the killer or killers were there. The rest of us can only speculate and that includes me."
More troubling than his agnosticism, however, is Cochran's reliance on political activism when he should invoke legal process. When he addressed the legislative conference of the Congressional Black Caucus (CBC) in 1995, he called the Simpson case a civil rights battle in the tradition of Dred Scott v. Sandford, Plessy v. Ferguson, and Brown v. Board of Education. One could chalk up Cochran's racial approach to defending Simpson as the fulfillment of Dershowitz's ideal: doing whatever is permissible in order to get his client acquitted. When Cochran spoke to the CBC, however, he was not speaking to jurors. He was stepping beyond his duty as an advocate for Simpson and into his preferred role as an advocate for African Americans. And the message remained the same.
As A Lawyer's Life demonstrates, Cochran's comments to the CBC cannot be attributed to a temporary lapse induced by the stresses of high-profile trial lawyering. Seven years of hindsight have only calcified Cochran's view that the Simpson case represents an important moment in the struggle for African American equality. "The allegations in this case were oddly reminiscent of those made against Emmett Till, a black teenager lynched by a mob for allegedly whistling at a white woman," he writes. "Half a century later a black man was accused of killing his beautiful blonde ex-wife and it became the dominant media event in the entire world." Even in the hyperbolic world of today's civil rights rhetoric, Cochran's analogy stands out for its cruelty and its mendacity. When two white men shot Till in Money, Mississippi in 1955 and then with an uncanny sense of metaphor used a cotton gin's fan to weigh the body down in the Tallahatchie River, it constituted an awful crime that had been played out repeatedly before. Till's lynching exemplified a shocking absence of justice. When California tried O.J. Simpson for the murders of Ronald Goldman and Nicole Brown Simpson, the proceedings exemplified the presence of justice.
And yet, at least in one respect, it must be conceded that Cochran is correct in observing that Simpson's trial brings to mind the trial of Till's killers. In his closing argument to the all-white jury in Mississippi, the defense attorney Sidney Carlton argued that if the jurors found the men guilty, "your ancestors will turn over in their graves, and I'm sure every last Anglo-Saxon one of you has the courage to free these men." Most people understood this closing as a race-based plea for jury nullification, whereby jurors acquit defendants whom they believe are guilty. Now cut to the courtroom in Los Angeles. It is difficult to see how Cochran's closing argument in the Simpson case did not also amount to a race-based plea for jury nullification. "Maybe this is why you were selected," Cochran proclaimed, implicitly referring to the racial identity of the nine African American jurors. "There's something in your background, in your character, that helps you understand that this is wrong. Maybe you are the right people, at the right time, at the right place, to say, 'No more, we are not going to have this. This is wrong.'" Cochran invited the jury to "send the message" with its verdict, and repeated Carlton's certainty about the verdict's outcome: "You are empowered to say, 'We are not going to take that anymore.' I'm sure you will do the right thing about that." Jury nullification may certainly be an appropriate remedy when jurors are faced with enforcing unjust laws, but not even Cochran has the temerity to contend that the prohibition on first-degree murder constitutes such a law. Jury nullification on the basis of race is no more palatable in California in the 1990s than in Mississippi in the 1950s.
Cochran's inconsistencies regarding his role as an attorney would not be nearly so unsettling if his confusion between activism and process were correctly recognized and viewed with skepticism. But many African Americans do not see that Johnnie L. Cochran Jr.'s most important client will always be Johnnie L. Cochran Jr. Instead they regard the demagogic, camera-chasing lawyer as a leader of the post-civil rights era. Predictably, the lionization of Cochran began as the Simpson trial unfolded, with one South Central reverend instructing that that Cochran was "a pioneer in the new phase of the struggle for liberation. The 1960s crowd opened the door. The 1990s crowd has to make certain people are walking through it. He bridges the two generations. He's old enough to have the wisdom, young enough to have the energy." The L.A. Watts Times found biblical importance in Cochran's work, proclaiming him "a leader whose task has been likened to Moses demanding that Pharaoh let God's people go."
And the end of the Simpson trial did not bring an end to Cochran's influence. One week after the jury acquitted Simpson, Cochran appeared on Meet the Press to comment broadly upon African American issues. He has yet to cede the spotlight. Tom Bradley, Los Angeles's former mayor, spoke for many when he said of his old fraternity brother: "He is a national hero, especially among African Americans." Cochran finished second in a poll, taken at the Million Man March, that listed the most influential black men in America. He remains an extraordinarily popular speaker on college campuses and frequently receives awards from prominent African American organizations. No longer content to battle in the courtroom, he increasingly takes his cause to the streets, often with the assistance of Al Sharpton. Cochran has also been embraced by the civil rights establishment, and he leads protests with Wyatt Tee Walker, who served as a key adviser to Martin Luther King Jr. Cochran owes a lot to CNN: he writes of being approached by autograph seekers in Soweto and being featured in a South African advertising campaign that dubbed Pepsi "the drink of liberation."
As Cochran's stature among African Americans has grown, so has his law practice. The Cochran Firm, as the group is formally known, consists of more than one hundred twenty lawyers and keeps offices in eight states. A partner in the Florida branch of The Cochran Firm says of the firm's eponym: "He is America's lawyer." Similarly, an attorney from the firm's Tennessee branch spoke of the positive impact that Cochran's presence has on the downtrodden: "We have seen a large segment of the population that feels somewhat powerless in the courtroom and in official circles. They want and need a hero like Mr. Cochran." The Cochran Firm erected billboards in Memphis that promised a "new level of justice." A new level of justice, of course, does not necessarily denote a more just level.
Despite his posturing as a leader, Cochran, like many Los Angeles lawyers, is motivated primarily by a fascination with celebrity, including his own. In his book, he goes to great evidentiary pains to prove that he held sway long before the Simpson affair. In his first chapter, he modestly recalls that "prior to the Simpson trial I was among the best-known and respected attorneys in Southern California." And again: "My career did not begin nor did it end with the trial of O.J. Simpson." And once more: "Among the celebrities I'd represented this was long before the O.J. Simpson case were Michael Jackson and football Hall of Famer Jim Brown." No brush with fame appears too meager for Cochran: there is an excruciatingly detailed account of Cochran's work representing Todd Bridges, who played Gary Coleman's brother on Diff'rent Strokes.
Throughout his two books, Cochran wishes to demonstrate that his influence extends into all spheres of American life. This compulsion leads to a fever of name-dropping, even by the standards of such memoirs. The government: "The attorney general [Janet Reno] took my call." The recording industry: "I had represented and gotten to know several prominent hip-hop stars, including Tupac Shakur, Shuge [sic] Knight, and even Snoop, on other cases." The government and the recording industry together: "I flew back to Washington, D.C., where my friend Ron Brown, the secretary of commerce, had invited us to attend a White House summer concert at which Aretha Franklin and Lou Rawls two of my clients were the featured performers." Hollywood: "When Denzel Washington was researching his role as an attorney for the movie Philadelphia he spent time with ... me." Neverland: "'Look, Johnnie,' Michael said in his soft voice, 'I want you to do what you have to do. But I want you to be there for me. If you can do that, then okay. Tell O.J. I love him. Tell him it's all right.'"
Cochran's obsession with celebrity prevents him from accurately assessing who can be plausibly enlisted in a cause. Consider his relationship with Puff/P. Daddy/Diddy. "The one thing I definitely was not looking to do was get involved in another high-profile criminal case," Cochran writes. "Then Sean 'Puffy' Combs called and asked for my help." (He is not some sort of ambulance-chasing lawyer. The ambulances chase him.) Cochran's rationale for defending Combs demonstrates that he is incapable of distinguishing prominence from talent: "This kid has so much to offer. He's just beginning to touch his greatness. If I don't step up and get in there and fight, he is going to prison." Greatness? Combs is a third-rate rapper, actor, haberdasher, and restaurateur who glorifies ghetto life in large measure because he was raised in the suburbs.
More troubling than Cochran's cockeyed assessment of P. Diddy's talent, though, is his account of the events at Club New York that led to his client's arrest. According to Cochran, a man "threw a wad of cash at Combs. The message was obvious: It was a way of telling him that he wasn't so big, wasn't so important, that other people had a lot of money, too. You ain't all that. In the hip-hop world that is a challenge, a sign of disrespect. Guns appeared, between three and six shots were fired, three people were hit." In just a few simple sentences, Cochran manages to condone the misplaced bravado that distorts many African American males, and to excuse reckless gunplay, and then to slip into the passive voice. His glamorous client didn't do it, Cochran's reasoning goes, but if he had done it, he would have had a good reason.
After Latrell Sprewell received a one-year suspension for violently choking his coach twice in the span of an hour, Cochran asserts that yet another ambulance chased him: "Arn Tellem called and asked me to serve as an advisor to Golden State Warriors basketball star Latrell Sprewell." Cochran's justification for getting involved with Sprewell is bewildering for a person who fashions himself a social and political leader. "The Sprewell case seemed like a good fit for me," Cochran writes. "It wasn't going to be a prolonged case which would have taken a lot of time. It involved pro basketball, which was a passion of mine." Cochran claimed that the league's suspension of Sprewell was "arbitrary and capricious," and violated "fundamental fairness," and demonstrated "a rush to judgment." Never mind that the NBA interviewed twenty-three witnesses before rushing to its judgment. Incredibly, Cochran managed to portray Sprewell a man who admittedly assaulted his coach as the victim in the dispute: "This guy may make a lot of money, but he's definitely the underdog in this one."
Sean Combs and Latrell Sprewell are not the only famous names to have recently received counsel from Cochran. Calling themselves "The Al and Johnnie Show," Sharpton and Cochran announced an initiative this summer designed to help musicians gain a larger percentage of the profits they bring to recording labels. Sharpton and Cochran somewhat marred their cause (and exposed their motives) by selecting Michael Jackson of all people as the exemplary victim of the entertainment industry, the martyr to use against the corporate executives. "Sony's Tommy Mottola, the president of the record division, he is mean, he's racist, and he is very, very, very devilish," Jackson said at a subsequent rally. But he did not stop there. "So, I need your support, not just for me," Jackson continued. "When you fight for me, you fight for all black people dead and alive." Jackson has been prone to conspiracy theory for many years now, but Cochran receives the credit for helping him to descend into the race-based variety.
Cochran, in sum, has never met an opportunity for publicity that he did not like. He has appeared on innumerable television shows including Roseanne and The Hughleys where he happily reprises his role as the poet lawyerate, spouting such couplets as "Why put the pedal to the metal/when it's friendlier to settle!" and "A dog is no longer a friend to man/once he bites you in the can." When Cochran's fascination with celebrity and his commitment to activism come into conflict, it is celebrity that generally carries the day. One issue that Cochran unfailingly mentions in his speeches and his books is his work on behalf of Geronimo Pratt, the Black Panther activist who was convicted of murdering a schoolteacher in the early 1970s. Cochran represented Pratt in the courtroom and claims to have worked tirelessly to free him from prison. To hear Cochran tell it, Pratt's case served as motivation for him to continue practicing law. "I will not retire until Geronimo Pratt is free," Cochran has written. Yet when California held a hearing to overturn Pratt's murder conviction, Cochran missed most of it because he was busily preparing for the debut of his show on Court TV.
Cochran is well into his sixteenth minute of fame; but his story is a fine illustration of the nature of glory in contemporary America. Once upon a time, the adjectives "famous" and "infamous" had antithetical meanings. You wanted the former but not the latter, even when the latter brought you the former. But increasingly the terms have become synonymous. This shift represents more than mere colloquial imprecision. Behavior that once would have drawn shame now brings glory. As long as people are looking at you and talking about you, the substance of what they are seeing and saying is of marginal importance. Infamy is such a pre-psychological notion, anyway.
Curiously, while Cochran takes great pride in portraying himself as the ultimate insider, he also plays the role of the underdog when it is expedient. Toward the end of his memoir, Cochran relates how he and the prominent African American attorney Willie Gary successfully sued Disney's Wide World of Sports for copyright infringement. Though Cochran was understandably exultant about winning a $240 million verdict, he weirdly views it as a victory for the little man against the establishment. "We had beaten Disney in Orlando," Cochran writes, "We'd proved that it was possible for David to beat Goliath." Just four pages before making this outrageous claim, however, Cochran marveled at Gary's two-hundred-person law firm, his fifty-room house near Palm Beach, and his two Lear jets. This is not exactly what Fannie Lou Hamer had in mind. But if you believe, as Cochran does, that merely being black makes you an underdog, then it is possible to be an underdog in a Lear jet.
Cochran's sense of victimization and his sense of pride can battle for primacy in the space of a single sentence: "It was easy for critics and few people have been criticized more for doing a good job than I was after the Simpson verdict to point to my expensive cars and my nice houses on both coasts and my very nice custom-made suits and, my oh my, all those colorful ties, and declare that I'm just another one of those slick money-grubbing lawyers taking advantage of people who have been hurt to squeeze millions of dollars out of insurance companies." Leaving aside his arresting fashion sense, it is difficult to work up much sympathy for Cochran, because his sarcastic self-assessment is remarkably accurate.
Cochran's enormous self-regard makes his justification for pursuing black reparations equally baffling. In his book, Cochran argues that reparations are crucial to restoring the dignity of African Americans: "It would be the beginning of giving back to us the pride that was robbed by the institution of slavery." Whatever may be the merits of the reparations idea, the restoration of pride is certainly not among them. The very existence of a proud figure like Cochran refutes his simplistic assessment. Cochran insults millions of justifiably proud and accomplished African Americans by contending that stroking a check can somehow instill a quality that they already possess. Cochran should know that no one can give you pride; you must acquire it on your own.
Few issues more clearly expose Cochran's shortcomings than his views on racial profiling in the wake of September 11. His poor performance in this context is all the more disappointing because he was in the vanguard of identifying racial profiling as a widespread problem. He dedicated a large portion of his early career in private practice to confronting racial bias in the Los Angeles Police Department, where there was plenty of racial bias to be confronted; and recently he helped to reveal how New Jersey Turnpike troopers obfuscated their systematic harassment of black drivers. Yet when polls came out after the terrorist attacks showing that African Americans despite an intimate understanding of the perils of racial profiling supported the profiling of people of Middle Eastern descent, Cochran missed an opportunity to demonstrate real leadership. Rather than yielding to the baser instincts of a racialist populism, Cochran could have drawn an analogy between the two situations and pointed out that stereotyping often leads to ineffective law enforcement.
But Cochran's steadfast opposition to racial profiling when it is committed against black people does not extend to brown people. In A Lawyer's Life, he observes that "I travel by airplane a lot and, admittedly, after the attack I found myself looking carefully at my fellow passengers before getting on an airplane; I found myself racial profiling. Me. It came as a big surprise to me." But Cochran refuses to check his bigoted impulse: "The difference, I decided, was the difference in the actual threat. People driving on a highway or walking down a street are not imposing an immediate threat to anyone. There is no immediate danger that would be alleviated by a race-based policy of stop and search. But as we've all learned that same thing isn't true about passengers getting on airplanes. One person can destroy that plane and with it hundreds of lives. That's an immediate danger." Cochran fails to understand that the same reason that makes racial profiling so noxious when applied to African Americans attributing the behavior of individuals to an entire group also applies to people of Middle Eastern descent. Racial profiling is a legitimate tactic so long as it is not inflicted on his own people.
Though he fancies himself a leader in the mold of Thurgood Marshall, Cochran falls far short of his hero's mark. Where Marshall ended American apartheid, Cochran uses his power to draw attention to the dearth of black head coaches in the National Football League. Cochran may have been born too late to litigate the school desegregation cases, but African Americans have more pressing concerns than unshackling handsomely paid defensive coordinators. The grievances of entertainers and athletes are not exactly primary grievances. Whether Tommy Mottola has been fair to Michael Jackson or not, there remains the vexing matter of lagging educational achievement across all socioeconomic levels, and the vexing matter of staggering incarceration rates among African American males, and all the other vexing matters regarding the life prospects of blacks in American society. The intellectual incoherence, the star worship, and the doggerel of Johnnie L. Cochran Jr. will do nothing to remedy those torments.
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