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Courtroom Sexism, from Marcia Clark to Now

Photo: Getty

While the O.J. Simpson trial was perhaps best known for its fraught racial politics, FX’s The People v. O.J. Simpson demonstrated, via prosecutor Marcia Clark’s ongoing struggle to be treated fairly in the courtroom, that misogyny also played a major role. Sarah Paulson powerfully portrayed Clark being torn apart by the media for seemingly irrelevant criteria such as her hair and being penalized in the courtroom for having to take care of her children (an issue no one on the all-male defense team had to face).

“But she’s a prosecutor,” I’d say whenever I heard someone lionize Clark as a feminist hero last year. Having spent my entire legal career in defense offices, I’ve been conditioned to despise prosecutors, to associate them with deceit, racism, and — worst of all — the police, an arm of the same government body that killed Eric Garner and Michael Brown. Prosecutors were tattle-tales as children, narcs as high schoolers. What kind of person chooses to put people in prison for a living?

When I began researching Marcia Clark as a potential subject of this series, I changed my tune. “I knew I was going to defend the little guy,” Clark told the ABA Law Student Podcast last spring regarding her early law school dreams. “There was no way I was gonna work for the man.” By “the man,” she meant the prosecutor’s office. For that reason, Clark began her career as a public defender. “I had a good time defending the dope cases and the prostitution cases,” she said. But things changed when she wrote a winning motion to dismiss that resulted in freeing a heinous rapist and kidnapper. Clark became severely depressed, and a colleague suggested she join the other side.

But the O.J. trial was by no means a typical prosecution. Most criminal defendants are indigent and despised. O.J. was rich, powerful, and beloved — he was not “the little guy.” And rather than an overworked public defender, Clark was up against the “Dream Team,” an all-male group of hotshot attorneys accustomed to handling media circuses. Making matters worse, presiding judge Lance Ito was as easily swayed by the Dream Team’s charm as he was by O.J.’s popularity.

In its standout episode “Marcia Marcia Marcia,” The People v. O.J. Simpson hits home with the hostile forces Clark was up against. In one scene, Judge Ito warns that court might run late to argue whether a new witness could be introduced. When Clark says she has to take care of her children, the Johnnie Cochran character mocks: “Are we really going to risk losing this witness because of a babysitter problem?”

But even more egregious is the emphasis on Clark’s appearance. Early in the episode, she comes home from work to see a “beauty expert” analyzing her appearance on television. The “expert” calls her style “frump incarnate,” explaining that it’s not a “look,” but rather a “cry for help.” Clark is later prompted to get a haircut at the suggestion of her boss, who notes the negative media attention on her appearance. She takes him up on it, only to be more harshly ridiculed afterward. Later, at the grocery store, Clark spots headlines that read: “Marcia Hair Verdict: GUILTY,” and “CURLS OF HORROR.”

The actual response to Clark at the time closely mirrored that depicted on the show, particularly the media’s obsession with her physicality. A Washington Post profile from 1995 begins: “Everyone is watching the lawyer with the large dark eyes, drawn by her black skirt, which is pleated and swings, a strange thing in a courtroom of papers and suits.” The writer continues: “If Warhol were still here, she’d be silk-screened — Jackie and Marilyn’s odd little sister. Even in the trial’s dullest weeks, Clark is in America’s fluorescent maw — clamored for, needed and despised.” The article does not mention Clark’s name or profession until the fourth paragraph, following 227 words mostly about her looks.

When the next episode of FX series begins, Marcia has a new, straightened do, which her boss immediately compliments. “Please don’t ever mention my hair again,” Clark says. “Ever.”

Her response likely resonated with women everywhere, regardless of whether they’ve set foot in a courtroom. Women are frequently given unsolicited advice on our appearances. Just a few weeks ago, a man I’d met just once ordered me to put back on my sunglasses, only to tell me they “did not suit my face.” And when I, like Clark, worked in a “progressive” law office, my boss announced one afternoon that he was taking me to MAC to buy me makeup, which he believed would make me appear more “professional.” I loved this boss, and I still wear the $500-plus of makeup he bought me, but the act was no doubt inappropriate, as was his comment upon entering the store: “I know you don’t do facial reconstructive surgery, but give her the next best thing.”

In a recent podcast interview, Marcia Clark said that while the show aptly detailed the media’s horrific treatment, sexism in the courtroom was far worse. She told New York that Judge Ito “interrupted” and “upbraided” her in front of the jury during opening statements and failed to reprimand the Dream Team for calling Clark “whining” and “overly emotional” — digs women are more likely receive. Clark thinks her unfair treatment prejudiced her before the jury. “If the judge is treating the lawyer like a second-class citizen,” Clark said in the podcast, “the jury is likely to be influenced by that.”

In 1995, Susan Reimer wrote in the Baltimore Sun:

My mother calls her “Marcia,” and talks about her with the same familiarity she uses to catch me up on the doings of the daughter of an old neighbor.
As in: “Did you see Marcia’s hair is different?”
Like many immersed in the spectacle of the O.J. Simpson trial, my mother is talking about prosecutor Marcia Clark. It is “F. Lee Bailey” and “Johnnie Cochran” and “Robert Shapiro.” But for the state’s lead lawyer, it is “Marcia.”

Likewise, in The People v. O.J. Simpson, while Judge Ito addresses the other lawyers formally, he continues to call Clark, simply, “Marcia.” This phenomenon immediately reminded me of the recent election, in which it was always “Trump” vs. “Hillary.” As Chicago Tribune columnist Jane Frish argued in 2007, “The simple fact is that Hillary Rodham Clinton is running in a field of men who are never referred to by their first names.”

Like Hillary Clinton, Clark — who was tasked with prosecuting the nation’s highest-profile homicide — rose in the ranks of a male-dominated profession (she was the only woman in the special trials unit when she joined). And like HRC, she therefore threatened the status quo. In referring to her by the unequivocally female name “Marcia,” Judge Ito, the media, and the public were immediately able to diminish her power. She was no longer a savvy prosecutor trying cases historically reserved for male lawyers, but was rather a woman whose name immediately recalls sitcom character Marcia Brady.

Last year, Angelina Chapin wrote for the Huffington Post that The People v. O.J. Simpson revealed how mid-1990s views on gender influenced the case’s outcome. “More surprising,” she argued, is that today, “female lawyers still deal with a lot of the same prejudice.”

Unsurprisingly, when I recently asked my female lawyer friends about whether they’ve faced negative comments on their appearance in the courtroom, I was inundated with responses.

Alana Kopke, a 31-year-old public defender, told me, in no uncertain terms, that courtroom misogyny is “fucking rampant.” Kopke defends indigent clients in Northern California, where she’s experienced sexism in “both direct and insidious ways.” As for the direct, Kopke has had her cases called after those of the male attorneys and has been pulled aside and told to wear heels, not flats. As for the insidious, she has been “reprimanded for things as silly as drinking coffee in court” (when her male colleagues do the same every day). She explains that misogyny rears its ugly head “[e]ven in front of judges who I am confident aim to be as fair as possible and who have progressive politics.” Kopke is frequently “asked to fetch so and so,” and has been called “aggressive,” about which she commented, “No shit, this is trial.”

I also spoke to Emily Tienken, a 31-year-old prosecutor in Northern California, who shares Kopke’s frustration with courtroom misogyny. Tienken has been called “pretty” by defense attorneys in the courtroom and in front of the judge. She’s been told she looks “too young to be a DA,” which carries with it the implication that she doesn’t belong.

Both Kopke and Tienken have heard fellow attorneys scrutinize their female colleagues’ courtroom appearances. Tienken says women are harsher on our own kind. “Part of it is cautionary,” she says: discussing suit choices (pants vs. skirt), whether certain shoes are “too distracting,” and “whether I have to wear pantyhose (the answer is always yes, unfortunately).” Kopke echoed that she has heard other lawyers — both male and female — discuss the appearance of female lawyers in her presence. “That was too tight and revealing,” she provides as an example. “She was too frumpy. She would get further with juries if she would reveal more of her assets.”

Kopke told me it’s standard for female attorneys to receive feedback from jurors about their shoes, clothing, hair, and makeup. Kopke’s mother, a trial attorney in her sixties, recently received feedback on her shoes and their impact on jury deliberations. Likewise, Tienken told me she “invariably” has jurors comment on some aspect of her appearance (“suits, shoes, youth, etc.”) after trials. She relayed a story in which a colleague received some harsh feedback from the jury about how she tried the case. As if to console her, one juror said, “But don’t worry, we really liked your shoes!” and another snapped back, “Speak for yourself.” Tienken concluded that juries have very particular expectations about how a female lawyer should look and act, and they tend to react harshly when women deviate from this standard. Likewise, Clark told Vogue last year that before the O.J. trial, a jury consultant advised her to “talk softer, dress softer, wear pastels.” Kopke said, “I have never heard of jurors commenting on male attorney’s appearance or clothing.”

A recent study from the Canadian Lawyers’ Association found that significantly more women stop working in criminal law than men. Likewise, Marcia left the prosecutor’s office immediately after the O.J. trial. It took me a lot less time to figure out I couldn’t handle the courtroom (for a number of reasons, really, but including its demoralizing gender politics). Clark is currently fulfilling her childhood dream of writing crime fiction, something she initially abandoned because she believed law would be a more practical way to make a living. While writing her first novel, she practiced indigent criminal appeals, which is precisely what I’m doing as I write my first novel. Today, we both have the privilege to practice law and write from our homes, where we are better insulated from the patriarchy. That said, forcing women into professions they can practice from home hardly seems a solution. Criminal trials will continue to occur, and they will continue to reinforce harmful gender stereotypes as long as mainstream society continues to propagate and accept them.

Tienken says that she has to think hard about her courtroom appearance, because she doesn’t want the jury to focus on her body or clothes instead of the testimony or argument. That said, she simultaneously worries that she’s “playing into and perpetuating some of the worst stereotypes about women’s appearance by doing this.” Tienken expanded, “It feels shitty to wear my less-comfortable skirt suits or a $10 pair of pantyhose that I know I’m going to shred by the end of the day, just because a jury expects it.” But to break from these expectations, she told me, “is to the detriment of the job I’m there to do.” The AV Club wrote that “Marcia Marcia Marcia” demonstrated — darkly and depressingly — that “there is no way for this woman to win.” Unfortunately, my own experience and conversations with female trial attorneys indicate this is still very much the case.

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