In recent weeks, I've had an overdose of O.J. Two extended pieces on the murder of Nicole Brown Simpson and Andrew Goldman were recently shown on television, one as a dramatic reenactment, the other as documentary. Both were excellent.
It's hard to realize that this event and its aftermath took place over twenty years go. It held an unpleasant mirror (up close and personal) to the faces of both black and white America. I'm not sure either liked what was looking back at them across the racial divide.
As a white man who came of age during the civil rights movement, I've always considered myself committed to equal justice for all. Watching the two "O.J." series brought back images that I had either long suppressed, or simply just not thought about for a long time. Chief among these memories was the absurdity of the Ford Bronco chase in which Simpson (supposedly armed and sucidal) and a friend traveled across the California countryside. The accompanying cortege included numerous police vehicles and helicopters. When the Bronco pulled off the highway, the streets were filled with enthusiastic onlookers cheering on the procession with shouts of "go Juice," and the like. To the casual (and even to the informed) onlooker, it seemed absurd that no order to intercept the Bronco had been given. After all, hadn't the LAPD been faced with intercepting escaping felons before? Hadn't the Rodney King beatings begun as a car chase and ended in an entire nation watching the apparently unprovoked clubbing and kicking of an unarmed and unresisting man? When the all-white jury acquitted all the officers concerned in the beatings, it resulted in riots and lootings and black on white assaults including dragging people from their vehicles whose only offense was to be white. When I say only, I realize that word belongs in italics. For too many years, black people had become accustomed to two different forms of justice, a justice that was hardly blind, let alone color blind.
What was ironic about the O.J. case, is the kid gloves (pun fully intended) with which Simpson was treated. People being arrested on multiple murder charges are not usually allowed to turn themselves in the next day. But then again, O.J. wasn't your ordinary citizen, black or white. He was American royalty; a football icon, face of Hertz Rent-a-Car, movie actor. As he himself said so well, "I'm not black, I'm O.J." And indeed he was. And so, the LAPD treated Simpson with the special respect it would accord any Hollywood superstar. The trial was a tragedy of errors. Despite overwhelming forensic evidence, the prosecution found itself saddled with a lead witness, Detective Mark Furman, with a not-so-secret history of overt racism. Once again, ironically, he had not only not acted improperly in handling and discovering evidence in the case, he had distinguished himself ion the scene and appeared on the stand as a handsome and articulate representative of LA's finest. When asked, among other things, if he had ever used the word "nigger," his response was an unequivocal "no." Sadly, this turned out to be not only a lie, but caused him to (presumably under lawyer's advice) to invoke his 5th Amendment privileges and refuse to answer all further questions, including one asking whether he had wanted evidence in this case. o call this a prosecutor's worst nightmare is understating it in the extreme.
When the defense team decided to play "the race card" (an expression made famous during that case), it was a carefully thought-out strategy. O.J. hadn't been singled out for prosecution because he was black; he was acquitted because he was black, something a dispassionate observer would be hard-pressed to deny. There's an old expression trial lawyers love to invoke when describing the necessary trial tactics: "If you're weak on the facts, argue the law. If you're weak on the law, argue the facts. And if you're weak on both, say whatever you need to say." The "Dream Team,"--and indeed it was--knew that adage all too well. While the prosecution was taken to task for belatedly adding a black Assistant D.A. to its team, Robert Shapiro certainly knew what he was doing when he brought Johnnie Cochran on board. Cochran, say what you will, was an extremely effective trial lawyer. And while neither Shapiro nor friend, Robert Kardashian, were not known for their courtroom abilities, F. Lee Bailey and Alan Dershowitz were nothing less than household words, and an invaluable addition to any defense team. Children, can you say "the best lawyers that money can buy?" I say that, by the way, not as criticism. Simpson was, at the time, a very wealthy and prominent man. Such people usually get the best defenses when on trial in capital cases. If I could have afforded it in a similar situation, (which, fortunately, I have found myself in) I would have done the same. Can any of us blame the defense team (whose job, after all, is to get their client off whether guilty or innocent) for putting the police on trial in such case? Was it "nice?" No. Fair? Probably not. Legal? You bet. It was their only hope of acquittal. What defense lawyers across the country know how to do is to plant seeds of doubt in the prosecution's case, and hope those seeds take root and become "reasonable."
But let's get back to Mark Furman. He had once acted as a consultant to someone making a movie about police practices. Unfortunately for (a) him, (b) the prosecution, and (c) the cause of criminal justice, these conversations were taped by the screenwriter. Whether he was telling the truth to the prospective screenwriter or simply playing a role he thought she might want to hear, Furman spiced his dialogue with more uses of the N-word than any gangsta-rapper ever has. Even worse, he freely admitted to planting evidence and lying on the stand if that's what it took to get a conviction. Once those tapes came into evidence, the case was effectively lost. What juror couldn't justify having a "reasonable doubt" after hearing that (whether or not they actually doubted his guilt). If a juror said to me, "how can I believe anything the police say after hearing that," dissuading such a juror would be an uphill battle that all the evidence to the contrary could (and didn't) dislodge.
There's another old concept that has floated around the criminal courts for years, and that is "jury nullification." You won't fond it in any casebook or court reports, but it is invoked whenever a jury doesn't want t convict. They either don't like the law (think about marijuana prosecutions), the facts (think about a police department with a long and brutal history regarding minorities), or a defendant who symbolizes all their hopes and dreams being tried by a system that has wronged them for years (think O.J.).
It's hard to realize that this event and its aftermath took place over twenty years go. It held an unpleasant mirror (up close and personal) to the faces of both black and white America. I'm not sure either liked what was looking back at them across the racial divide.
As a white man who came of age during the civil rights movement, I've always considered myself committed to equal justice for all. Watching the two "O.J." series brought back images that I had either long suppressed, or simply just not thought about for a long time. Chief among these memories was the absurdity of the Ford Bronco chase in which Simpson (supposedly armed and sucidal) and a friend traveled across the California countryside. The accompanying cortege included numerous police vehicles and helicopters. When the Bronco pulled off the highway, the streets were filled with enthusiastic onlookers cheering on the procession with shouts of "go Juice," and the like. To the casual (and even to the informed) onlooker, it seemed absurd that no order to intercept the Bronco had been given. After all, hadn't the LAPD been faced with intercepting escaping felons before? Hadn't the Rodney King beatings begun as a car chase and ended in an entire nation watching the apparently unprovoked clubbing and kicking of an unarmed and unresisting man? When the all-white jury acquitted all the officers concerned in the beatings, it resulted in riots and lootings and black on white assaults including dragging people from their vehicles whose only offense was to be white. When I say only, I realize that word belongs in italics. For too many years, black people had become accustomed to two different forms of justice, a justice that was hardly blind, let alone color blind.
What was ironic about the O.J. case, is the kid gloves (pun fully intended) with which Simpson was treated. People being arrested on multiple murder charges are not usually allowed to turn themselves in the next day. But then again, O.J. wasn't your ordinary citizen, black or white. He was American royalty; a football icon, face of Hertz Rent-a-Car, movie actor. As he himself said so well, "I'm not black, I'm O.J." And indeed he was. And so, the LAPD treated Simpson with the special respect it would accord any Hollywood superstar. The trial was a tragedy of errors. Despite overwhelming forensic evidence, the prosecution found itself saddled with a lead witness, Detective Mark Furman, with a not-so-secret history of overt racism. Once again, ironically, he had not only not acted improperly in handling and discovering evidence in the case, he had distinguished himself ion the scene and appeared on the stand as a handsome and articulate representative of LA's finest. When asked, among other things, if he had ever used the word "nigger," his response was an unequivocal "no." Sadly, this turned out to be not only a lie, but caused him to (presumably under lawyer's advice) to invoke his 5th Amendment privileges and refuse to answer all further questions, including one asking whether he had wanted evidence in this case. o call this a prosecutor's worst nightmare is understating it in the extreme.
When the defense team decided to play "the race card" (an expression made famous during that case), it was a carefully thought-out strategy. O.J. hadn't been singled out for prosecution because he was black; he was acquitted because he was black, something a dispassionate observer would be hard-pressed to deny. There's an old expression trial lawyers love to invoke when describing the necessary trial tactics: "If you're weak on the facts, argue the law. If you're weak on the law, argue the facts. And if you're weak on both, say whatever you need to say." The "Dream Team,"--and indeed it was--knew that adage all too well. While the prosecution was taken to task for belatedly adding a black Assistant D.A. to its team, Robert Shapiro certainly knew what he was doing when he brought Johnnie Cochran on board. Cochran, say what you will, was an extremely effective trial lawyer. And while neither Shapiro nor friend, Robert Kardashian, were not known for their courtroom abilities, F. Lee Bailey and Alan Dershowitz were nothing less than household words, and an invaluable addition to any defense team. Children, can you say "the best lawyers that money can buy?" I say that, by the way, not as criticism. Simpson was, at the time, a very wealthy and prominent man. Such people usually get the best defenses when on trial in capital cases. If I could have afforded it in a similar situation, (which, fortunately, I have found myself in) I would have done the same. Can any of us blame the defense team (whose job, after all, is to get their client off whether guilty or innocent) for putting the police on trial in such case? Was it "nice?" No. Fair? Probably not. Legal? You bet. It was their only hope of acquittal. What defense lawyers across the country know how to do is to plant seeds of doubt in the prosecution's case, and hope those seeds take root and become "reasonable."
But let's get back to Mark Furman. He had once acted as a consultant to someone making a movie about police practices. Unfortunately for (a) him, (b) the prosecution, and (c) the cause of criminal justice, these conversations were taped by the screenwriter. Whether he was telling the truth to the prospective screenwriter or simply playing a role he thought she might want to hear, Furman spiced his dialogue with more uses of the N-word than any gangsta-rapper ever has. Even worse, he freely admitted to planting evidence and lying on the stand if that's what it took to get a conviction. Once those tapes came into evidence, the case was effectively lost. What juror couldn't justify having a "reasonable doubt" after hearing that (whether or not they actually doubted his guilt). If a juror said to me, "how can I believe anything the police say after hearing that," dissuading such a juror would be an uphill battle that all the evidence to the contrary could (and didn't) dislodge.
There's another old concept that has floated around the criminal courts for years, and that is "jury nullification." You won't fond it in any casebook or court reports, but it is invoked whenever a jury doesn't want t convict. They either don't like the law (think about marijuana prosecutions), the facts (think about a police department with a long and brutal history regarding minorities), or a defendant who symbolizes all their hopes and dreams being tried by a system that has wronged them for years (think O.J.).
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