The OJ Trial

We just passed the 20th Anniversary of The Simpson Murders.  This has resulted in a spike of media interest in the "Trial of the Century".  It wasn't but it is definitely one of the most important trials in the twentieth century.  I am going to spend most of this post talking about the trial.  But, in the interests of completeness and in an effort to reduce confusion let me briefly present some background.

OJ (technically Orenthal Julius) Simpson became famous as a College football player.  He went on to have a distinguished carrier as a professional.  His tenure as a pro was of intermediate duration.  He was extremely talented.  But at that time professional football made no attempt to protect franchise players from injury.  Since he was the heart of the offense defensive players focused on him and punished him with excessively viscous hits.  It was considered part of the game to "injury out" players on the opposite team.  So his carrier was not as long as it should have been because a series of injuries reduced his performance.

Simpson was one of the first black professional athletes to try and parlay sports fame into success in other endeavors.  He became the spokesman for the Hertz rent-a-car company.  He did a number of well received commercials featuring him jumping over things like luggage in airports.  (This was a simpler time and on one saw this sort of thing as a security problem.)  He also had parts in a number of movies, most notably the "Naked Gun" movies.  He became one of the regulars on "Monday Night Football" in the era when this was a very highly rated show that was carried on ABC rather than a sports cable channel.

In all these endeavors he had considerable success. But in all these endeavors he was one of the first blacks to do this.  There were few black actors.  There were few blacks starring in commercials.  There were few blacks in the announcer booth on sport shows.  And he was never accorded appropriate respect.  I think he would be the first to admit that he was not a great actor.  But he never represented himself as such.  He pretty much played himself.  His Hertz commercials were a big success.  They drove a lot of traffic the company's way.  And he was just trying to provide "color" and a little insight on "Monday Night Football".  He might not have been the most brilliant but he was not an embarrassment either.  In my opinion he was never in any of these endeavors accorded the respect he would have gotten had he been white.

At the time of the events we are going to be involved in his star had waned.  He was past his peak in all the endeavors I have mentioned above.  But he had been well paid for them so he was in excellent financial shape.  And along the way he married a beautiful blond white woman named Nicole Brown.  Then Nicole Brown Simpson, as she came to be known, and her boyfriend Ron Goldman were found brutally murdered on June 13, 1994.  The police quickly focused their attention on OJ.  On June 17 the famous "Bronco Chase" occurred.  OJ was supposed to turn himself in to the police on that day.  Instead he was found to be cruising the LA freeway system in a white Ford Bronco that was being driven by Al Cowlings, a friend.  All the LA TV stations had news helicopters equipped to transmit video.  By the time it was done the "chase" took 4 1/2 hours, plenty of time to get the 'copters airborne and on the air.  As it was going on it became a national story being covered wall to wall, even by the networks.  This event marked a major the transition of what passes for journalism on TV toward trash TV.

The "story" of the chase was significant enough to justify coverage by local cable news channels in LA.  It was not significant enough to justify coverage on national cable news channels and certainly it did not deserve to have the networks break into regular programming and broadcast a Bronco driving sedately down the freeway followed by a bunch of cop cars with all lights flashing.  But it was ratings gold.  And that's all that counts.  So you could literally not find anything else on TV while it was going on.  And it went on for hour after hour after hour.  The Bronco finally pulled into the driveway of Simpson's house.  Negotiations ensued and Simpson was taken into custody without further incident.  This all set the stage for "The Trial of the Century".

It was not.  But it was one of the most important trials of the twentieth century.  It was potentially precedent setting but in the end no precedents were set.  It could have broken new legal ground but in the end no new legal ground was broken.  But, although legally insignificant, the trial was of major importance from a cultural perspective.

The trial ran from November 1994 to June 1995 and featured live TV cameras in the courtroom.  OJ ended up being acquitted and no one has ever been convicted in a criminal court of perpetrating the crimes.  So as a crime it is still officially unsolved.  The heirs and relatives later sued Simpson in civil court and won.  And, in a ridiculous coda, OJ is now in the slam as the result of being convicted in a case involving OJ sports memorabilia.  And that's part of what I want to talk about.

There are those who think the original jury got it right.  There are those who think the trial was ultimately a massive miscarriage of justice,  I fall into neither of those camps.  Oh, I think OJ did it.  But I would characterize the trial as a routine, middle of the road, miscarriage of justice.  To see why, let's first delve into the cast of characters.  On the prosecution side we had Marcia Clark aided by Christopher Darden.  These were two competent but not superstar advocates.  The only thing of note here is that Darden is black.

On the defense side we have superstars.  The most obvious of these initially was F. Lee Bailey.  He was a high profile defense attorney in the style of the fictitious Perry Mason.  What the trial showed was that he was long past his "sell by" date.  As the trial progressed he was shoved aside by Johnny Cochran.  The Simpson case made Cochran's reputation, and justifiably so.  He demonstrated that he was the black F. Lee Baily.  Cochran came up with the most memorable line to emerge from the whole trial:  "if it doesn't fit, you must acquit".  His work was as good or better than anything Bailey had done in his prime.  Unfortunately, Cochran died less than ten years later and was very ill for the last part of his life.  So he could not completely capitalize on his newfound fame.  But that's not the end of the list.

Another member of the defense team was Alan Dershowitz.  Dershowitz had become famous ten years earlier in connection with the Claus von Bulow case.  Von Bulow was accused of murdering his wife.  She was bedridden and died in suspicious circumstances.  Dershowitz used a scorched earth tactic of attacking every piece of the prosecution case large or small, important or unimportant.  He succeeded in throwing enough "reasonable doubt" up to get von Bulow off.  With few exceptions (see below) the Dershowitz model was followed in the Simpson case.

There were a number of other superstar lawyers on the defense team (including Robert Kardashian of reality TV family fame) but the only other one I want to point out is Barry Scheck.  He has specialized in the use of DNA in criminal cases and has been active in "The Innocence Project" a group that has been able to get over two hundred convictions reversed by using DNA to prove that identifications, especially "eye witness" identifications, were wrong.  The OJ trial was the first high profile trial to involve DNA evidence.

Now let me move on to another critical courtroom player, the presiding judge Lance Ito.  I credit Ito with being one of the people most responsible for OJ's acquittal.  What was his contribution?  He was a big fan of Johnny Cochran.  One of the big problems the prosecution had was they had a complicated case to present.  Part of their job was to help the jury keep everything straight.  But Cochran kept popping up with trivial objections.  This would interrupt the flow of the point the prosecutions was trying to make.  This made it nearly impossible for the prosecution to manage the roadmap jurors needed to keep straight in their minds in order to understand the prosecution's case. 

The defense had a much simpler problem.  All they had to do was punch one big hole in the prosecution's case.  They didn't need a roadmap so a strategy of lots of prosecution objections would not have disrupted them.  Ito should have contained Cochran and given the prosecution a fair chance to put their case on.  But he didn't.  It turns out that the famous "if it doesn't fit, you must acquit" is actually not true.  But the explanation is complicated.  And, as I will cover below, the jury wanted to acquit OJ.  They just needed a reason.

Finally, let me introduce one more player Mark Furman.  He was the lead cop on the investigation.  The OJ defense team was able over the course of the trial to hang him out to dry.  The LA police have run a very effective PR operation for many decades.  The Jack Web "Dragnet" shows and others have portrayed the LAPD as square jawed honest upholders of the law who are interested in "just the facts, mam" and don't indulge in hanky panky.  The evidence is overwhelming that the reputation is not justified.  Any number of  'noir Hollywood movies from several decades have done a much better job of showcasing the bad behavior of the LAPD than I could.  And Mark Furman is a poster child for this sort of thing.  The trial highlighted a number of instances of Furman taking shortcuts, violating procedures, and otherwise engaging in bad policing. The defense took advantage of this and there was again nothing the prosecution could do about it.  The OJ case was high profile from the start.  You would think the LAPD brass would have put their top people on it.  But they didn't.  Besides the Furman antics there was sloppy lab work and other examples of shortcomings on the part of the police.

And this brings me to a larger point.  OJ is black.  Most of the jury was black.  The black community in LA has been the victim of bad and frankly racist policing for decades.  If you could get honest answers out of them I am sure it would have turned out that jurors had a very poor opinion of the LAPD.  True or not, and I'm inclined to the opinion that there were many cases of "true", the black community felt that the LAPD had railroaded innocent black people into jail and let guilty white people who had committed heinous crimes against black people off the hook.  So "if it doesn't fit, you must acquit" was good enough for them.  I think they were wrong but they weren't that wrong.

And there is another similar point.  OJ was rich.  And even if he hadn't been the case had such a high profile that it would attract top tier talent to the defense team.  This is not true of most cases.  Usually the defendant is poor and the case is not that interesting.  This means that the defense does not have the resources to put on a Perry Mason quality (or F. Lee Bailey quality or a Johnny Cochran quality) defense.  One reason for Mark Ferman's behavior was that he was used to getting away with it because the defense did not have the resources to catch him out. This is also true of the lab work.  I don't think the lab got anything wrong but their procedures, documentation, etc., were shaky enough to give the defense something to talk about.  This is again a case where most defendants do not have the resources to uncover this sort of thing and exploit it.  This sort of thing usually cuts in favor of white defendants, especially rich ones (i.e. Claus von Bulow and everyone Perry Mason ever defended) but in this case it cut in favor of a black defendant.

I have tremendous sympathy for the Brown and the Goldman families.  As far as I can tell the victims were both nice and good people.  The did not deserve to be brutally murdered.  And if they must be murdered then the guilty party should have been found, convicted, and put away for a long time.  But many many many black people who were nice and good people have been murdered in Los Angeles.  And, as a result of bad policing the crime was not prevented and the guilty party or parties were not arrested, convicted, and put away for a long time.  The best thing would be for the LAPD to do its job well.  Lacking that, OJ getting off is not the worst thing that could happen.

This next point will sound harsh.  As I have pointed out the victims did not deserve to die and OJ got away with it.  But, as I have also pointed out above, he did not really get away with it.  He ended up in the slam in the end.  And what about all those black men that would take OJ as a model and start killing white women wholesale?  I was never worried about that outcome.  And let me point out that, in fact, the opposite did and does happen.  White men have killed black men and women with impunity in far too large numbers.  And a significant number of them have gotten off.  And this actually did encourage other white men to kill black men and women on the theory that they could get away with it.  Again the best situation would be for killers, black or white, to get caught and appropriately dealt with whether their victims were black or white.  But we still have not gotten to that point.  Absent that then the OJ case can be said to balance the scales.  It is a bad outcome but not the worst outcome.

I pointed out above that the defense adopted a scorched earth approach to most of the prosecution case.  As an example there was a pair of gloves.  They had OJ try them on late in the case.  They did not fit even though they were OJ's because they had shrunk in the mean time.  (That's the hole in the Cochran argument.)  But the visual of OJ struggling to get the gloves on was compelling.  They attacked the lab work and other physical evidence.  But one thing they did not touch was the DNA evidence.  As I said above, DNA was not as well understood then.  This was the first time it was being used in a high profile trial.  At the time everyone was wrestling with what the proper procedures for collecting and analyzing DNA.  They were also wrestling with the proper interpretation of a DNA result.  So thee was plenty of room for mischief on the part of the defense.

At the time Barry Scheck was the most experienced lawyer on the subject of the proper use of DNA in the courtroom.  So the defense had the capability to put on a show and cast doubt here too.  But ultimately they didn't.  I was relieved.  As a "science guy" I felt at the time that DNA held out a lot of promise.  But I was concerned that it's reputation would be sullied as a side effect of this case before it had a chance to establish a solid reputation.  Since the defense chose to not challenge the DNA evidence no one puts "DNA evidence" and "The OJ Trial" together.  Today, due to procedures and techniques developed after the OJ trial, DNA evidence is now the accepted "gold" standard.  It is even more golden than the old standard, fingerprints.  So my biggest worry (seriously) about potential negative effects to the broader society caused by the OJ trial, namely calling DNA evidence into question, did not materialize.

It would be nice to be able to say that the LAPD learned its lessons.  It should have improved its investigatory procedures and moved on to a more color blind approach to policing.  I think the LAPD has made progress on both fronts but it still has a long way to go.

The trial was covered "wall to wall" on a cable channel called Court TV.  Court TV got massive ratings.  It tried to repeat its success with other trials but never quite could.  And Court TV has since morphed into something called "tru TV".  But the trial has left its mark on the cultural landscape.  Cable TV routinely covers sensational trials, sometimes for months on end.  Sometimes there is a TV feed from the courtroom as there was in the OJ trial.  If not then they get creative and find ways to fill hour after hour after hour without it.  Judge Ito has been broadly criticized for how he ran the trial.  He's still on the bench but his reputation, generally good before the trial, was in tatters by the end.  No judge wants to suffer the same fate.  So they are much more careful in how they handle lawyers in these situations.  I'm sure that attorneys on both sides have absorbed lessons.  But since neither side in the OJ trial really did a bad job the lessons are much more small bore.  And it is still easy to get a good argument going as to whether the verdict was right or wrong even though its 20 years later.  There are very few trials for which that is true and that's why it is such an important trial.

Finally, I have some sympathy for OJ.  He was a brilliant athlete.  Most of the time he seems to have comported himself well and seems to have generally come off as a nice guy.  He tried hard (both creatively and just in terms of effort) to leverage his sports stardom into a more durable carrier off the football field.  That's commendable.  But he did not get the success and especially the respect his skill and efforts deserved.  He had a temper.  Under the circumstances that is understandable.  He should not have (presumably in a fit of temper) killed two people.  That is not forgivable but it is understandable.