The People v OJ Simpson

I recently finished watching American Crime Story: The People v OJ Simpson, a show which deals with the 1994 double murder of Nicole Brown Simpson and Ron Goldman and the subsequent trial of OJ Simpson. But for me one ten-episode series was not enough, so I have subsequently read the book on which the series was based The Run of His Life by Jeffrey Toobin and the Marcia Clark’s account of the trial from the prosecution side, Without a Doubt. I have also seen three or four complete documentaries on YouTube, including a two-and-a-half-hour compilation of the highlights of the trial. I think my wife is starting to get seriously worried about this obsession.

It was called The Trial of the Century. It was before social media, but 24-hour rolling news made the event a media circus. And what a cast of characters it had. Born in 1947 in San Francisco, California, Orenthal James Simpson had a stellar career in American football, despite never winning the Superbowl. Winner of the Heisman Trophy for the best college player, he went on to play for the Buffalo Bills in the NFL, where he became the first running back to rush for 2000 yards in a season. He later forged a successful post-football career encompassing Hollywood, sports broadcasting and advertising.  Best known for playing Officer Nordberg in the Naked Gun trilogy, he also appeared in The Klansman (where he played a man framed for murder by the police), The Towering Inferno and Capricorn One. Shortly before his arrest he did a pilot for NBC of an A-team rip-off, Frogmen, in which there is a scene in which he holds a knife to the throat of a woman.

His personal life was less successful. Simpson married Marguerite L. Whitley on June 24, 1967. They had three children together, Arnelle, Jason and Aaren, who died before her second birthday when she drowned in the family’s swimming pool. Simpson met waitress Nicole Brown while still married to Marguerite. O.J. and Nicole were finally married in 1985 and they had two children together, Justin and Sidney. Their marriage was what is euphemistically described as troubled, i.e. he used to hit her. Nicole really did seem to fear for her life.

But Simpson was just one of the players. Toobin describes lead prosecutor Marcia Clark as arrogant, but the series paints a much more sympathetic portrayal of the lawyer and the sexism she had to put up with. Christopher Darden, the sole African-American on the prosecution side, was responsible for the glove debacle. Judge Lance Ito became media sensation, but his failure to maintain control of the courtroom was another factor in the verdict.

Simpson was defended by the dream team of defence lawyers, which included Robert Shapiro, F. Lee Bailey Barry Scheck and a lawyer I have featured before, Alan Dershowitz, who would have handled the appeal. Dershowitz had actually been on a number of national television shows saying how guilty Simpson was. Now he would be representing him. As Toobin notes, “Shamelessness is a moral, rather than a legal, concept.” They were undoubtedly great lawyers, but it was a fractious relationship. Although he was not initially part of the team, Johnny Cochran was the one who became the principal defence lawyer. Toobin wrote of Cochran “that he had been waiting his whole life for this case, and this case had been waiting for Johnnie Cochran as well.” It may have been Robert Shapiro who first came up with the race-based defence, but it was Cochran who took it to its final consequences.

And finally to add a bit more spice Robert Kardashian was a family friend and another of the defence lawyers. In one scene, probably invented, he warns the family about the dangers of fame:

We are Kardashians. And in this family being a good person and a loyal friend is more important than being famous. Fame is fleeting. It’s hollow. It means nothing at all without a virtuous heart.”

In his book Toobin is clear about Simpson’s guilt. The TV series leaves it a bit more open, but no other credible suspect emerges. If the evidence was so overwhelming, why did he walk?

The prosecution has come in for a lot of flak. There may be some truth in this. The way the defence lawyers were able to get under Darden’s skin and get him to demand that Simpson don the glove. Perhaps the prosecution presented too much evidence. They took six months to present the evidence against O.J. Simpson. But I think that while the DNA, blood evidence was at the heart of the case, the domestic abuse story was relevant too. I have also heard that they shouldn’t have called racist detective Mark Furhrman. But once Fuhrman had climbed over the wall of the Simpson home and had taken part in getting those statements from O.J., he was part of the case. Mark Fuhrman proved to be a disaster for the prosecution. Here I side with the defence in asking for the tapes to be played. He perjured himself in court and not only did he repeat the n-word but he glorified torture and evidence tampering.

If the prosecution made one mistake it was their choice of venue. This is a rather depressing conclusion, but there is no doubt that a whiter jury may well have produced a guilty verdict. This racial animus had been on display when the officers were found not guilty of the beating. The LAPD did not inspire much confidence in the African-American community. The not guilty verdict in the trial of the policeman who beat up Rodney King is considered to have triggered the Los Angeles riots of 1992. This was a climate in which conspiracy theories flourished.

The fact is that humans find it hard to analyse evidence objectively. People can read the same report and come to diametrically opposed conclusions, depending on their ideological starting point. The jury overlooked a mountain of evidence that showed him to be guilty, and seemed more impressed by the glove not fitting. Cochrane’s catchy turn-of-phrase, “If the glove doesn’t fit, you must acquit”, really hit home. This is known as the rhyme-as-reason effect, a cognitive bias in which a saying or aphorism is judged as more accurate or truthful when it rhymes. Really it is not a logically watertight argument.  The glove may well have shrunk, and they cannot negate the overwhelming blood and trace evidence.

Fuhrman may have been a vile human being, but that doesn’t mean he could have conspired to frame Simpson. When he allegedly took the glove to Simpson’s house how did he know that Simpson didn’t have an alibi. I tend to be sceptical of conspiracies. In particular, in the case of OJ, the police seemed to fawn over him. But Cochran was able to sow the seeds of doubt:

“If you cannot trust the messenger, you can’t trust the message…”

Although Simpson was acquitted, his legal problems were far from over. He had to go back to court for a civil trial, and in February 1997 he was found liable for the wrongful deaths of Nicole Brown Simpson and Ronald Goldman, and ordered to pay their families $33.5 million in damages.

I find it rather surprising that after someone has been acquitted of a crime, they have to then go to a civil case. Why was this result was totally different? Firstly this was a civil case and you are not required to prove guilty beyond reasonable doubt just preponderance of the evidence. This evidence was presented to a whiter jury in Santa Monica. There was no Judge Ito and so the defence were kept on a tighter leash. And, unlike in the criminal trial, where he could invoke his Fifth Amendment rights, O.J. had to testify. He has been described as the worst witness ever, showing that the defence team had been right not to put him on the stand. Where is he now? He is currently in prison in Nevada, having been sentenced to 33 years for armed robbery of sports memorabilia, but he will be eligible for parole in 2017, when he is 70.

In 1996, 21 years after the trial, there must few people who seriously believe Simpson that did not kill Nicole and Ronald Goldman to death. Could such a defence, based on playing the race card, work again? I’m not sure. DNA is now more established. CSI had shown people the power of scientific medicine. But in the age of #blacklivesmatter you could imagine a black celebrity getting off again. There is a certain irony that this defence proved so successful – OJ actually did very little to help the African-American community. He may not have actually said “I’m not black – I’m O.J.”, but that’s how he seemed to live his life.

In the final episode of the TV series Darden angrily confronts Cochran:

This isn’t some civil rights milestone. Police in this country will keep arresting us, keep beating us, keep killing us. You haven’t changed anything for black people here. Unless, of course, you’re a famous, rich one in Brentwood.

I want to argue against seeing cases from one angle. You could look at this case from a domestic abuse perspective. In the end you have to look at the evidence. As I pointed out in my post about rape, you cannot look at this through the prism of the fact that only 10% of rapes result in conviction. The bottom line is that if you are on a jury, you should judge the evidence before you. Is the defendant guilty beyond reasonable doubt? But legal history shows us that this is almost impossible.

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