On Johnnie Cochran: An Exchange

To the Editor:

Professor Randall Kennedy’s mean-spirited review of “Journey to Justice” by Johnnie Cochran Jr. with Tim Rutten (“Playing to the Crowd,” Oct. 13), is a disservice to Cochran, the public and the cause of promoting open and civil dialogue on matters of great national concern. We have no objection to a critique of the literary value or intellectual content of Cochran’s book. Kennedy, however, goes well beyond expressing his dissatisfaction with the book and makes a series of ad hominem comments and unsupported allegations that unfairly malign Cochran’s honesty and integrity.

Kennedy, for example, questions Cochran’s portrayal of his own family. Kennedy suggests that it is “implausible” that Cochran’s parents (whom Kennedy takes pains to mention by name) could possibly have been as loving or as supportive as Cochran describes.

The obvious fact is that Kennedy has absolutely no basis for making this claim. Additionally, Kennedy’s words imply that it would have been better for Cochran to have written a “tell-all” expose emphasizing whatever faults his parents may have had, as opposed to sharing his obvious pride in being part of a strong black family. Such implication, we submit, is sadly misguided in a country filled with negative images of black family life.

Kennedy’s assault on Cochran’s professional character is similarly based on innuendo. For example, Kennedy states that “he would not be shocked” if Cochran “concoct[ed]” his claim that Los Angeles Dist. Atty. Gil Garcetti offered to permit Simpson to plead guilty to second-degree murder. Kennedy does not offer a shred of evidence to support this serious charge other than Garcetti’s denial and Kennedy’s belief that Cochran needed to add something “newsworthy” to his account of the O.J. Simpson trial to sell books.

It should go without saying that this “evidence” is grossly inadequate to support a charge of fabrication. Surely, it is equally plausible that Garcetti, locked in a tight reelection campaign, was unwilling to admit that he offered Simpson a plea bargain, just as there are good reasons to believe that the very celebrity that Kennedy complains of assures that Cochran’s book will sell whether it is “newsworthy” or not.

Indeed, Kennedy’s contention that it is “ridiculous” that Cochran would not have urged Simpson to accept a plea bargain even though Simpson vigorously protested his innocence suggests that Kennedy does not understand the difficult ethical issues facing defense lawyers.

Many scholars and practitioners believe that it is unethical for a lawyer to assist a defendant in pleading guilty to a crime that the defendant claims that he did not commit. To be sure, Kennedy is correct that many defendants who claim to be innocent nevertheless engage in plea bargaining. At least some of those who do so, however, surrender their right to go to trial because of pressure from lawyers whose financial or professional interests are best served by quick plea bargains. This tragedy should in no way impugn the integrity of a lawyer who refuses to dissuade a client from exercising his constitutional right to be tried by a jury of his peers.

Ultimately, what prompts us to write is the extent to which Kennedy’s review contributes to the public vilification of Cochran for actions falling squarely within the accepted standards for criminal defense lawyers.

Many Americans profoundly disagree with the outcome of Simpson’s criminal prosecution. Many more regret the deep racial divisions that the trial and the verdict exposed. Unfortunately, some have sought to make Cochran the scapegoat for these feelings by accusing him of unethical conduct. Despite the vehemence with which these charges have been made, not one of Cochran’s accusers has yet made a persuasive claim that Cochran overstepped the accepted bounds of professional ethics in his defense of Simpson or in his actions regarding this case since the trial.

Although one can legitimately argue that prevailing ethical standards for defense lawyers fail sufficiently to promote the interests of justice, neither this claim, nor Cochran’s zealous defense of Simpson, justifies the charge that Cochran acted unethically. In fact, when compared with Simpson’s other lawyers, many of whom have blatantly divulged confidential information to make their accounts of the trial more “newsworthy,” Cochran has shown considerable restraint.

Cochran has had a long and distinguished legal career. Unlike many successful lawyers, he has devoted and continues to devote a substantial percentage of his time to representing poor and disadvantaged citizens, particularly in the area of police brutality.

Kennedy is, of course, free to express his opinions about the merits of Cochran’s book and, more important, about the whole genre of celebrity books that now seems to occupy such a central place in the publishing industry. He should not, however, have attacked Cochran’s personal and professional character without providing much more evidence than is contained in this review.

This kind of unsubstantiated personal attack only diverts our collective attention from the very issues about lawyers, race and the publishing industry that Kennedy--and we--believe this nation urgently needs to confront.

A. Leon Higginbotham Jr.

Public Service Professor of Jurisprudence

John F. Kennedy School of Government

Harvard University

Charles J. Ogletree Jr.

Professor of Law

Harvard Law School

David B. Wilkins

Professor of Law

Harvard Law School

Randall Kennedy Replies

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The Higginbotham-Ogletree-Wilkins letter makes me appreciate Cochran’s “pull.” It is rare (if not unprecedented) for several members of the Harvard University faculty to join forces in this way. Their effort, however, on behalf of perhaps the most famous lawyer in America is misspent.

They state that what “ultimately” prompts them to criticize my review is that it contributes to what they see as the public vilification of Cochran for his actions as Simpson’s defense attorney. They concede, in other words, that they are using the occasion of my review as a platform to discuss matters beyond my critical remarks about Cochran’s memoir.

In my review, I did not comment at all upon Cochran’s performance as a defense attorney. Nor will I do so here other than to note that while Cochran’s role as Simpson’s counsel has attracted hostility, it has also attracted fame, business opportunities and adulation that, in some quarters, has turned him into an icon.

My critics chide me for commenting on the way that Cochran portrays his parents in “Journey to Justice.” No one made Cochran (and his collaborator, Rutten) discuss his parents or his relationship with them. Since Cochran chose to do so, however, he also chose to place himself under an obligation to render an accurate account.

I do not contend, as Higginbotham-Ogletree-Wilkins charge, that it would have been better had Cochran written a “tell-all expose” emphasizing whatever faults his parents have or may have had. I merely demand that the author of a memoir show some respect for reality. I press this point not on the grounds that I know something special about the Cochrans. I do so on the grounds that I know something about the course of human affairs and that in that course, honest, hard-working, decent, loving people inevitably make a few mistakes or display a couple of faults.

Cochran’s description of his parents mentions no mistakes or faults or blemishes of any sort. Such an implausible, hollow, lifeless portrayal is one of the things that made me conclude that “Journey to Justice” (like many other pseudo-autobiographies) is merely a vehicle for marketing not to be taken seriously as the considered judgment of a reflective person.

I am well aware that the United States is awash with “negative images of black family life.” Does that mean that, regardless of what he writes, an author should be exempt from criticism so long as he offers a positive image of black family life? I suspect that what is true of many families, black and otherwise, is also true of Cochran’s: that it is sufficiently impressive that it does not need the “hear no evil, see no evil” treatment that Cochran imposes.

My critics complain that I wrote in my review that I “would not be shocked” to discover that Cochran “concocted” his story that Garcetti called him on a car phone to offer a plea bargain under which Simpson would plead guilty to second-degree murder. I did not say that Cochran definitely fabricated this story; I am not privy to facts that would permit such an assertion. I did say, and reiterate, that given the evident lack of seriousness with which “Journey to Justice” was composed, the possibility that Cochran’s story represents a tenuous relationship to the truth cannot be confidently dismissed.

Higginbotham-Ogletree-Wilkins refer to the difficult ethical issues facing a defense attorney who must contend on the one hand with a client who protests his innocence and on the other hand with a prosecutor who is offering a reduced sentence in return for a guilty plea. It would have been useful for Cochran to have explored this dilemma. He does not.

To the contrary, he suggests that dealing with this situation posed no difficulty, that it was simply out of the question for him to consider recommending that Simpson plead guilty to a lesser crime inasmuch as he believed Simpson’s assertion of innocence. It is unlikely that Cochran believes this simplistic position; as I mentioned in my review, other cases indicate that Cochran is surely (and prudently) willing to deal when he perceives doing so to be in the best interests of a client. Yet, out of inattentiveness or perhaps some other reason, he permitted his memoir to embrace the rigid, sentimental, simplistic position that I noted in my review.

Finally, my critics suggest that I should have provided more information than I did to substantiate my criticisms. The fact is, however, that I illustrated my review with examples of the weaknesses that make Cochran’s memoir such a disappointing read. Their real complaint is not with my methodology but with my conclusions.