In November 1996, California voters went to the polls and did something unthinkable: they voted to do away with affirmative action programs in this state. Think about that. Twenty years of social reforms blown away like ashes in the wind. I’m not alone in believing that Proposition 209 would never have stood an ice cube’s chance in hell if white Californians had not been so infuriated by the Simpson verdict. There’s all kinds of ways to riot: in the streets or at the ballot box. That’s the problem with payback. It never stops.
As you might imagine, I followed O. J. Simpson’s civil trial with bittersweet fascination. I like the idea that O. J. Simpson has been found “liable,” as they say in civil law, for the deaths of Ron Goldman and Nicole Brown Simpson. Given the circumstances of those deaths, you can’t very well hold him “liable” unless you buy the proposition that he slashed them to death. Bottom line, murder.
A civil trial, I’m sure I don’t have to tell you, is a whole different ballgame. You’ve got a different standard of proof: “preponderance of evidence” instead of “reasonable doubt.” In a civil case, you can present the kinds of evidence we could only dream about. I’m thinking of Nicole’s diary and the results of O. J. Simpson’s failed polygraph.
But the plaintiffs had something even better going the second time around. Public opinion was running against O. J. Simpson. The ramifications of that fact resonated throughout the proceedings. For the duration of the criminal trial, the aura of wealth and public acclaim still clung to defendant Simpson so stubbornly that even as he sat a prisoner in the dock, prospective witnesses pulled their punches, afraid of offending him. If they were sycophants or hangers-on, they didn’t want to cut off the flow of his largesse. If they were honest-to-goodness admirers, they didn’t want to be “the one” to bring him down.
After the criminal verdict, when public opinion turned abruptly against him, these same witnesses stuck a finger in the air, caught the shift in the wind, and altered their testimony accordingly. I couldn’t believe it when I heard Kato Kaelin, who has apparently learned to speak in complete sentences, telling the world how distraught Simpson appeared on the night of the murders. And I regarded with absolute disgust the videotape of Paula Barbieri’s deposition. When questioned by our office during the Al Cowlings investigation, she wouldn’t even admit that she was Simpson’s girlfriend. Now she’s gabbing that she’d broken up with him the day of the murders.
Even more upsetting to me was the behavior of the expert witnesses. For the plaintiffs, Dr. Werner Spitz, the former chief medical examiner of Wayne County, Michigan, made himself available. We were never able to get him to do the same for us. And those scientific hotshots who’d renounced integrity to swap spit with the defense team? Dr. Henry Lee did not show his face in Santa Monica. Defense lawyers had to content themselves with introducing his videotaped deposition. And Dr. Michael Baden, who’d postulated during the criminal trial that the assailant had struggled with his victims for ten to fifteen minutes-an absurdly exaggerated estimate that gave credence to the defense time line-conceded during his testimony at the civil trial that the murders could have been committed in half that time.
Then, of course, there’s the fact that O. J. Simpson had to testify this time around. As I predicted, his ego tripped him up big-time.
But the biggest blessing by far to drop into the plaintiffs’ laps was a judge who took the reins tightly in that courtroom. Hiroshi Fujisaki kept cross-examination confined to the scope of the direct, as it should be. So the defense never got to play its case through the plaintiffs’ witnesses. Most important, Fujisaki firmly refused to let race or Mark Fuhrman become an issue in this trial. The wild speculation that formed the cornerstone of the defense in the criminal case was now finally deemed inadmissible. Thank God for a judge with backbone.
While I hope the civil judgment has brought some peace to the victims’ families, it leaves me with some lingering concerns. What kind of message does this verdict really send? That whenever you have a black defendant whom you simply must convict, you gotta be sure he’s tried by white people? I felt a little queasy at the public rejoicing when a black juror in Santa Monica was booted for having a purported drinking problem. The ideal worth striving for, it seems to me, is that justice can be done in any venue, with any defendant. And for that to happen, there’s going to have to be some serious rethinking of the jury system.
I am not a social theorist, but I do have a few informed suggestions. In order for the jury system to survive, we have to do something to ensure that every jury pool contains a true cross section of the community-not the most underemployed, least-invested segment of it. That means when a lawyer goes to pick a jury, she’s looking at a room full of doctors, engineers, full-time moms and dads, teachers, students, secretaries, college chancellors, postal workers, supermarket cashiers. You need that whole range. I wouldn’t want a jury of Ph.D.s any more than I’d want a jury of high school drop-outs.
The way it stands now, a lot of thoughtful employed citizens who have an interest in seeing that justice works can’t afford to leave their jobs for eight months at a stretch. Somehow, some way, employers, the government, somebody is going to have to foot the bill for careful, honest, intelligent jurors to perform unlimited duty. The business lobby will shriek bloody murder at this. But the next time you hear some CEO on a soapbox complaining about how the Simpson jurors couldn’t cut it, please remind him that you get the justice you pay for.
At the risk of sounding preachy, let me offer one earnest, and very personal, admonishment. The next time you receive a jury summons, respond and serve. A summons is not some party invitation to which you can RSVP. It is the notification of a legal and moral obligation. Don’t complain about the verdicts that juries bring in if you won’t answer the call. Enough said.
Other suggestions? Lawyers should be gagged, pure and simple. There’ll always be leaks, but a judge with resolve can dream up sufficiently painful sanctions to make an attorney think twice before taking the risk. Next, kick cameras out of the courtroom. I didn’t always feel this way. In fact, I started the Simpson trial believing that cameras could actually serve a useful purpose. Can you believe it-I thought they could teach the public what real trials are all about. The performance of the media in this case disabused me totally of that notion. The cameras in the Simpson courtroom not only encouraged lawyers to preen for the lens and prolong the life of every goddamned motion to increase their time on the air, it reduced a criminal trial to the status of a sporting event. Court TV has given rise to a bizarre burlesque of half-time commentary according to which one side or the other has “won” or “lost” on any given day. A criminal case is not won or lost by the motion or by the day. Its outcome is determined by weeks and months of cumulative testimony. Until someone yanks the cameras, the public will continue to be systematically miseducated about the process of justice.
Other small things spring to mind, such as stricter rules of evidence to keep defense attorneys from slipping so much swill into the record. But more regulations, new laws are not the answer. Laws are only as good as the people-the judges-who enforce them. There were ample laws on the books to keep Lance Ito from allowing the N-word into People v. Orenthal James Simpson. But he did it anyway. He caved to the bullying of the defense, and in committing that single egregious error, he assured a hung jury, if not acquittal.