Darden Accuses Cochran of Tampering with the O.J. Glove

On Thursday at a Pace Law School forum, O.J. Simpson prosecutor Christopher Darden reportedly alleged, “‘I think Johnnie [Cochran] tore the lining,’” referring to the glove that prompted Cochran’s famous summation line, “If it doesn’t fit, you must aquit.” When commenting further on Friday, Darden reportedly said, “‘A bailiff told me me the defense had it during the lunch hour ... It’s been my suspicion for a long time that the lining has been manipulated.’” Reuters article here. Additional reporting from the Los Angeles Times here and here, and from Slate here.

A pretty powerful charge for Darden to raise only now, almost 17 years after the verdict and several years after Cochran’s death. Darden may be walking in between some ethical lines of his own. If Darden had a sound, evidence-based belief that Cochran intentionally manipulated evidence during the O.J. trial, Darden arguably had a duty to report this misconduct—a point the Reuters article notes Alan Dershowitz raised in response to Darden’s allegation. See Model Rules 3.4(b) & 8.3(a); see also CA RPC 5-200. On the other hand, if Darden had no good faith basis for accusing another attorney of such serious misconduct, Darden could have engaged in his own misconduct. Cf. e.g., Model Rule 8.4(c). From these new reports, Darden seems to be saying instead, “I know of enough evidence to assert this suspicion publicly and in good faith, but not so much evidence that I needed to do anything about it for the last 17 years.” A delicate balance that may warrant some tough questions.

If Darden did suspect this fact since the trial, why would he assert it just now at this particular Pace forum? Darden did reportedly claim that he had voiced similar concerns in the past. But according to Reuters, Darden could not recall any details, and even the lawyer for Nicole Brown Simpson’s estate in the civil lawsuit never had heard the allegation before now. More reporting to follow, I assume.

Comments

[Steven Lubet]

I read Darden's memoir, and I do not recall that he made any such claim. On the other hand, I think it is quite a stretch to suggest that he is now committing misconduct. Finally, I think it is a good idea for prosecutors to internalize a high degree of certainty before charging defense attorneys with misconduct, and higher still in the midst or in the immediate aftermath of a trial.

[Brooks Holland]

Great comments, Steven. Thank you!

I did not mean to suggest that Darden did or did not engage in misconduct--I of course have no personal knowledge, either way. Formal misconduct may be a stretch, as you observe, in the sense that it would be hard to prove that Darden had *no* good faith basis for the allegation, or that he "knew" Cochran committed misconduct. Perhaps as a practical matter it also may be a stretch to think a State bar would pursue this issue as misconduct no matter what Darden knew or believed--it's the O.J. case, after all. But if, for example, Darden really had no good faith basis for alleging such serious, even criminal, misconduct by another attorney--let's assume, hypothetically, it was a long-burning, sour grapes assertion--would it really be a stretch to characterize this allegation as "dishonest" under RPC 8.4(c)? In my own practice experience, a baseless claim of this sort would not serve one's professional reputation for honesty very well at all. But maybe you mean Darden's claim is more a question of lawyer professionalism than lawyer ethics?

My point in the post was not to demonstrate that Darden committed misconduct of any sort--and I tweaked one sentence hopefully to prevent that misimpression. Rather, I offered these misconduct bookends to show where Darden may have placed himself with his now-public allegation: some reason to believe it, but not enough reason that he felt confident to allege it for 17 years, even when he faced pretty intense attention over exactly this moment of the trial. As I noted in my post, this position would not constitute misconduct by Darden, just a "delicate balance" that may justify some hard questions. I certainly appreciate and agree with your point very much about prosecutors internalizing a high degree of certainty before accusing lawyers of misconduct. But why only during or immediately after the trial? Why would it be more cool for Darden to say it now, 17 years later and after Cochran has passed away?

[Steven Lubet]

"But why only during or immediately after the trial? Why would it be more cool for Darden to say it now, 17 years later and after Cochran has passed away?"

There is a vast difference between making an accusation with immediate consequences -- and potentially undermining vigorous defense of the accused -- and reflecting on the historical record.

Surely you are not suggesting that a prosecutor must either bring charges of misconduct or forever hold his peace? As Justice Frankfurter once said, "history has its claims."

(I am not supporting Darden here -- he has lots of reasons to try to explain away the glove fiasco -- just pointing out that that the passage of time does make a difference.)

[Brooks Holland]

I agree with you of course on both counts: prosecutors, or any lawyer, should not be held to a now or never standard, and historical reflection can make a big difference in how we understand an event or record. But that's the question of my post. Assuming a factual basis for the allegation, why now? The passage of time does not benefit all revelations.

[Rick Underwood]

I respond to his Whine with a Yawn.

[Trotsky]

One always has to look for the slivered lining.