The O.J.Simpson Case

Every third news story about the O. J. Simpson case called it the “trial of the century.” If the double murders made the Simpson case notable, then it is probably the Lizzie Borden trial of the century.

Merely having a celebrity as the accused does not make the Simpson case a political trial. But the many items on the agenda beyond the double murder and the fame of the accused do qualify the two trials of O. J. Simpson as political. He was found not guilty in the 1995 criminal trial, but he was held responsible in the 1996–97 civil trial.

The two agendas in the Simpson case are: double murder, a purely legal term; and an array of public issues that constitute a political agenda. These include the creation of a national spectacle on television, the politics of racial identity, the problem of spousal abuse, the accusations of a police cover-up, the presence of a celebrity as the accused, the influence of money, the role of lawyers, the authority of the judge, the difficulties of jury selection, the possibility of jury nullification, the conflicting testimony of expert witnesses, and, finally, the overall operation of the adversary system of justice. Each of these public issues, in one way or another, touches the question of responsibility.

How accurately can the media represent—re-present or present again—what happens in the courts? The assumption that full coverage must be the most accurate coverage runs into the long-standing controversy that art faces in relation to photography: selectivity and the fact that the presence of a camera changes the subject.

On the other hand, without full coverage, can the media accurately show what happens in a trial, especially when television depends as heavily as it does on courthouse step news conferences where lawyers, victims, and defenders of the accused tell all that could not be told a jury, excoriate the witnesses for the other side, and lash out at the opposition? In the Simpson case we saw the fallacies of both full coverage and of courthouse step coverage. As Lincoln Caplan characterized the lack of responsible journalism in the Simpson case: it was “information delivered without knowledge, often escorted by opinion without explanation and soothsaying without heed of consequences.”⁸¹

Following soon after a series of trials involving the police beating of Rodney King and the subsequent Los Angeles riots, the Simpson criminal trial inevitably raised the agonizing race issue.⁸² Detective Mark Fuhrman’s racial prejudices opened the door for the defense to suggest that the bloody glove and other blood evidence were planted by him, placing race at the center of the case. The closing argument by defense attorney Johnnie Cochran came close to an appeal to the nine African Americans to acquit because of racial loyalty. Then, after a trial that lasted from January through September 1995, the fact that the jury arrived at a verdict after a mere four hours’ deliberation, looked to many as another example of a race-based decision. Finally, the televised reactions to the not guilty verdict by cheering African Americans contrasted with the stunned and somber reactions by whites presented at least the image that many African Americans considered the verdict as a recompense for the Rodney King case and many others.

Those who take the position that the not guilty verdict in the Simpson criminal case righted a racial balance and is just in a broader sense might call to mind the views expressed by juries in other trials, especially those that not long ago were called cases of “Southern justice.” The trial of those accused of murdering young Emmet Till provides a vivid example. Till, a Chicago African American visiting his cousins in Mississippi, was murdered in August 1955 because he had whistled at a white woman. Although the evidence against the accused was overwhelming, the all-white jury spent merely an hour and half in deliberation before returning a not guilty verdict. When asked how they could reach a verdict in such a short time, one juror remarked that they would have returned sooner had the jurors not taken a break for soda pop.⁸³

The evidence of battery of Nicole Brown Simpson, long before her murder, was overwhelming. O. J. Simpson had established a record for domestic abuse going back to 1982. The alleged incidents include smashing Nicole’s family photos and throwing her against a wall, throwing her clothes out of the house, bashing her car with a baseball bat, striking her and throwing her to the ground, tossing her out of a slow moving car, and stalking her repeatedly. In a 1989 incident, recorded in a 911 call, O. J. was given the penalty—considered by many a mere slap on the wrist—of undergoing counseling by phone. These incidents make Nicole Brown Simpson, in the judgment of Deborah L. Rhode, “all too typical in the legal response available to the victim. Nicole Simpson’s experience was quite representative, except in the amount of publicity it eventually received.”⁸⁴ This raises the question of responsibility. How does the Simpson case provide a lesson—and what lesson—about domestic violence? Perhaps rather than a lesson about the seriousness of abuse, if the injuries are trivialized with euphemisms (“misbehavior” or part of the “ups and downs with spouses and girlfriends”) or ignored completely, the issue of responsibility will be diminished.

The Simpson defense built its case around the possibility that the Los Angeles police planted evidence—the bloody glove and other blood evidence which led to the DNA matches—and covered up their crimes with perjured testimony. Alan M. Dershowitz made the argument that the members of the jury may have doubted Simpson’s innocence, but they found enough reasonable doubt about his guilt to return with a not guilty verdict. Concerning police behavior, Dershowitz observes, “in other words, they conclude that the police tried to frame a guilty defendant.”⁸⁶ How much responsibility have the police, as public servants, to obey the law? In the abstract the question is absurd. But with the requirements of the exclusionary rule and with considerable public pressure to obtain a conviction of an accused whom the police honestly believe is guilty, the police may easily yield to the temptation to plant evidence and support each other in a cover-up with perjured testimony in court.

Perhaps the overriding aspects of the Simpson trial are the celebrity status of the accused, his capacity to spend, as reports have it, about $10 million on his defense, and his row of “dream team” lawyers. The lawyers, in turn, could hire investigators and experts to respond to the evidence the prosecution could present. Absent these factors, the case would never have been a national spectacle and may not even have garnered much attention in Los Angeles. With them, the case raised all of the other issues that make it a political trial. At their core each of these factors involve the issue of responsibility. If we expect more from celebrities because we hold them before us as representative models, does that imply a corresponding responsibility? How responsible are members of the public for the activities of its celebrities? Can the wealthy “buy” acquittals? Does society have the responsibility for providing a more equal defense for those who must rely upon over-worked public defenders? Where can we draw the line between a lawyer’s responsibility to the client—the state for the prosecutors, the accused for the defense—and to the law? When does a lawyer’s zeal become destructive of the law?

In high publicity cases such as the Simpson trial, the lawyers view the time spent picking a jury as the most crucial time of the entire case.

Jury nullification occurs when the jury chooses to ignore the judge’s instructions about the law or refuses to convict in spite of the evidence which leads to no other conclusion but guilty. As we shall see in chapter 5, jury nullification has a long history in the Anglo-American legal system. It places the issue of responsibility squarely in front of each juror. In some cases it works to strengthen the rule of law, as the trials of William Penn and William Mead, John Lilburne, and John Peter Zenger demonstrate. But in other cases jury nullification works to undermine the rule of law.

A notorious example of how jury nullification can overcome overwhelming evidence is found in the trials between 1931 and 1937 of the Scottsboro Boys. The evidence of their innocence was overwhelming. Yet in ten trials juries found them guilty of rape. Two landmark U.S. Supreme Court decisions reversed the convictions: Powell v. Alabama (1932), because of inadequate legal representation, and Norris v. Alabama (1935), because of inadequate representation of African Americans in the jury pool. In spite of the evidence and the Supreme Court, the juries in Decatur, Alabama, continued to convict in two more sequences of trials in 1936 and 1937. After one sequence of trials a newspaper editorial in Virginia expressed the prevailing attitude:

With three different juries agreeing on the man’s guilt, it is reasonable to assume that the evidence to this effect must have been unusually strong. Even admitting that a prejudice against Negroes accused of this particular crime exists in Alabama, few men would care to have the blood of an innocent man on their conscience.

Does the American system of jury trials place too much confidence in the common sense of twelve citizens not randomly but selectively chosen?

Additional issues of responsibility arise when we consider the role of the judge and of experts who testify for either side. Few recent cases raise matters of responsibility as vividly and as widely as the O. J. Simpson trial. In the end the Simpson case put the adversary system itself on trial before the American people. How much confidence do we have in a system based on the assumption that the critical decisions of guilt and acquittal are in the hands of ordinary, sometimes poorly educated, citizens rather than professionals? Do we accept the assumption that it is better to let ten or more guilty go free rather than wrongly convict one innocent person?