The other side of OJ
From Cyberlaw
A Real Dispute
“If there's one thing that I wish had changed over a decade, it's that people would say we may not like what happened, but the system did work. When we do a dispassionate, objective examination of not what we know, but what we saw in a courtroom under oath and through admissible evidence, there was a reasonable doubt as to O.J. Simpson's guilt. That's all. If people would do that, this would be a major accomplishment.” Charles Ogletree, April 12, 2005.
In a public high school classroom, slightly fewer than half of the students in the class raucously cheer. The others sit with dazed looks on their faces. Every student standing is black. Every student sitting is white. Not a single student crosses the color line that marks the seated from unseated.
Sitting in that classroom, the verdict of the O.J. Simpson trial told me that the law was not so different from the discipline code of the high school. The pocket sized “bluebook,” which detailed the rules, set the punishment for “unprovoked physical assault” as expulsion. A “provoked physical assault,” i.e. a fight between willing participants, only called for suspension, as did the use of a derogatory racial epithet, typically the “n-word.” That word also transformed an otherwise unprovoked assault into the lesser offense. A typical implementation went as follows: along the line separating where white students and black students generally sit in the cafeteria, a white girl refuses to give up her seat when confronted by a group of African-American girls. The white student is assaulted. The black girls claim that she said a racist remark. All the girls are suspended for three days, in part because the white girl has a reputation as a troublemaker.
Apart from the threat of false accusation, there is something disturbing about the idea that being called a nigger should make violence less unacceptable. And from one angle, the O.J. Simpson verdict appears to be a vile extension of this logic. The defense showed that the police were guilty of misconduct, and this acted as a surrogate for the reasonable doubt that did not exist.
Even viewed in the most favorable manner, the evidence did not hint at the possibility of another killer. Simpson had no alibi during the time of the killings, and his abusive relationship with his ex-wife gave him motive. As Professor William Hodes has noted, an unknown killer would have implied a highly improbable string of events that included leaving a mountain of physical evidence -- blood, fibers, hairs, shoe prints -- “none of which was inconsistent with Simpson’s guilt or even suggested the guilt of someone else.” For Hodes, the Simpson jury wanted to send a message; otherwise we must indulge “the false and demeaning assumption that jurors were too dumb, too superstitious, or too emotional to appreciate the difference between ‘reasonable’ doubt and irrational fantasy or groundless wishful thinking.”
It is tempting to subscribe wholeheartedly to Hodes’ jury nullification theory. It would allow me to keep seeing the Simpson trial as I did, and to believe that the system worked nonetheless. It does not give me a satisfactory explanation, however, of why a 2004 NBC News poll shows that only 29% of African-Americans believe that O.J. “murdered” the two victims. It could be that the other 71% did not closely follow the trial, or their poll responses are meant to send a message, or they are dumb, superstitious, or emotional. Certainly there are respondents who fit in each of these categories. But are there also some who see the truth from a different angle and thoughtfully and sincerely have a reasonable doubt?
Perhaps a prerequisite for seeing this side of the truth is to consider the side of the truth that favors the blue book rule. That entails obvious difficulties. For me it requires imagining a reality in which my mother would not be allowed to attend the schools she attended, and in which my family would not likely have been able to purchase a home in the neighborhood where I grew up. That reality is elusive but the thought of it suggests a power that might overrule, “sticks and stones may break my bones but words will never hurt me.” The bluebook rule may have been, and may still be, a necessary prompt to get the story out that matters most.
Staying within that narrative, in which police are often adversaries and not merely benign protectors, the evidence in the O.J. Simpson case gives rise to considerable doubt. From the beginning, the prosecution’s witnesses gave insincere testimony. To avoid the 4th Amendment’s exclusionary rule, detectives on the scene, as well as their supervisor, had to maintain that they went to Simpson’s estate in order to notify him of his ex-wife’s murder, rather than to investigate him as a suspect. One of these detectives, who jurors suspected of perjury, inexplicably carried a sample of Simpson’s blood in his pocket for several hours before turning it over to forensics. Testimony later suggested that some of the blood had been lost from the sample. Evidence indicated that blood from a test tube had been planted on one of Simpson’s socks and on the gate at the Simpson estate. And evidence proved that one detective lied under oath (about using the “n-word”) and cast the validity of important evidence—namely, the uncorroborated story of the bloody glove, which also showed signs of tampering—under the shadow of vehement racism.
The prosecution claimed that O.J. Simpson had driven his Ford Bronco to the scene of the crime sometime after 10 p.m., decapitated Nicole Brown Simpson and stabbed Ron Goldman over thirty times in a violent struggle, then reentered the Bronco and drove back to his Brentwood estate in time to meet a waiting limousine shortly after 11 p.m., with a black bag alleged to contain the murder weapon and other bloody evidence of the crime. Yet the amount of blood found in the Bronco was miniscule. It was consistent with the defense’s story that detectives tracked in or otherwise contaminated, or planted, blood from the scene of the crime into the Bronco. Given the time that Simpson would have had to clean up and the bloody struggle that the forensic evidence suggested, however, the prosecution’s narration of the events strained credulity.
The defense explained other facets of the prosecution’s case -- for example, hair, fiber, and blood evidence at the scene of the crime -- as having an innocent explanation. Simpson spent a great deal of time at the home of Nicole, often playing with his children there. Moreover, the bungling and malfeasance in the collection of evidence appeared to go beyond the detectives, casting doubt on all the physical evidence processed by the LAPD crime lab. Finally, even without doubting its validity, much of the evidence, such as hair samples that indicated the killer was a black male, and footprints that matched Simpson’s foot size, did not pinpoint Simpson as the murderer.
Where the prosecution failed to put forward a convincing narrative, the defense made its story indisputable: the LAPD did not play by the rules, they lied, they cut corners, they planted evidence, and at least some of them are racists. Hodes’ proof by contradiction approach to the case, emphasizing the improbability of another killer, only demonstrates just that: improbability. With respect to the juries central duty -- assessing credibility -- witness after witness of the prosecution showed serious flaws. Even if the product rule made the chances of the police framing O.J. in lieu of another killer exceedingly small, the idea that probability alone should not stand as a basis for conviction has deep roots. Indeed, according to the Talmudic scholars Rosenberg and Rosenberg, the Torah contained an outright prohibition against convictions based on circumstantial evidence, with the 12th Century philosopher Maimonides explaining that “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death.” In the Simpson case, the lack of credibility established by the officers who collected the circumstantial evidence could have made the odds appear much less extreme than one in a thousand.
What does this mean to say? It shows that, indeed, “when we do a dispassionate, objective examination” of the evidence at trial, there was a reasonable doubt as to O.J. Simpson's guilt. Intuition may still reject this statement, and even dispute the possibility of such a dispassionate and objective examination. After all, at the very instant that some still see a glove that was too small, others see the latex glove underneath that obstructed a good fit. When these perspectives are taken together and their background contexts are reconciled, however, something resembling objective truth begins to emerge, and the story of a competent jury that had reasonable doubts is the one that makes sense.
