Let me dispense with this at the outset: I believe O.J. did it. My gosh, he left practically everything at the murder scene but the Heisman Trophy! However, does that mean I share the believe held by many that the jury simply ignored the evidence and "let him off" for purely racial reasons, thereby undermining the integrity of the jury system? My answer, after one week of reflection is, "Not necessarily." What then are we to make of the jury verdict?
Before trying to dissect the basis for the Simpson verdict, however, one may ask, "Why do we care?" For some people the reason may be the obvious, i.e., the case had all the tabloid elements that appealed to our most basic instincts. For others it may be because the case serves as a referendum on larger social issues such as the status of race relations or the public's confidence level in our law enforcement institutions. For me, as a civil trial attorney and Instructor in Trial Advocacy at the University of Pittsburgh School of Law, the Simpson verdict is of interest primarily for what it reveals about courtroom persuasion.
Having now reflected on the verdict, I believe one may say that the acquittal was not the product of blind allegiance to race, but instead resulted from the timely convergence of two factors which, when present in tandem, usually spell success in the courtroom: dogged trial preparation and a favorable jury climate.
Admittedly, the issue of race was so predominant in the Simpson case that, even for trial attorneys, it is difficult to accept the idea that the Simpson verdict was based on those same elements which affect the outcome of the comparatively simple cases we all try. Nevertheless, I believe this proposition --- that the Simpson case was won or lost (depending on your perspective) for many of the same reasons that typical cases are won or lost --- begins to emerge when one steps back and places the O.J. case in historical perspective.
There are those who would say that this case cannot be placed in historical perspective, the argument being that there has never before been anything like the O.J. Simpson case. It is true that we have never had a murder trial go to verdict where the defendant was such a well-known public figure. Further adding to its status as the "Trial of the Century" was the fact that the Simpson drama was broadcast live into our homes on a daily basis. However, without meaning to diminish the stature of the Simpson case --- I happen to believe it is no overstatement to call it the "Trial of the Century" --- I believe there is another case in our legal history worthy of comparison to Simpson: the 1963 assassination of President Kennedy. It is true that Lee Harvey Oswald never made it to trial, an immediate distinction from O.J. Simpson. A further distinction lies in the fact that one murder was apparently the result of lethal personal rage whereas the other was the product of broader political forces. Despite these differences, there are similarities between the two cases which provide meaningful ground for comparison and which ultimately permit us to better understand the basis for the Simpson verdict.
Before getting to those similarities, it should be noted that, as with the Simpson case, I have a fairly fixed view about the guilt of Lee Harvey Oswald. Having read numerous books on the Kennedy assassination (Dating back to my college days when I read one of the first books published on the subject, Mark Lane's Rush to Judgment, and continuing up through my more recent reading of Gerald Posner's 1993 work entitled Case Closed, the JFK assassination has been among my favorite subjects of leisure reading, unless of course a copy of Sports Illustrated is handy.), I entertain little doubt that Lee Harvey Oswald alone killed JFK.
Back now to the similarities which help explain the Simpson verdict. The first of two common features between the cases is this: The facts surrounding both murders have been scrutinized to a level virtually unparalleled in the annals of American jurisprudence. In the Simpson case, O.J. had the resources to assemble a so-called "Dream Team" of defense counsel who, along with an entire platoon of behind-the-scenes attorneys, researchers, investigators, etc., devoted more than a year of their professional lives (and, no doubt, a large part of their personal lives) to probing and challenging every nook and cranny of the prosecution's case. Likewise, in the Kennedy assassination an eclectic group of authors, investigators, and medical personnel (including our own ACBA member, Dr. Cyril Wecht) have spent years gathering and/or analyzing evidence to discredit the Warren Commission conclusion that Lee Harvey Oswald alone killed President Kennedy. Indeed, these self-styled assassination buffs have generated enough books, articles and other documents to fill a small-town library.
What is fascinating to observe is that as a result of this unparalleled scrutiny, there are strikingly similar examples of how, according to Johnnie Cochran's mantra, "the evidence does not fit." In that regard, consider the following:
- In the Simpson case, much was made of the botched autopsy performed by the Deputy Coroner of Los Angeles County. Likewise, in the JFK case, a great deal of criticism (much of it generated by Dr. Wecht) has been directed toward the allegedly inept autopsy performed on the President at Bethesda Naval Hospital in the hours following the assassination.
- In the Simpson case, there was the argument that O.J. lacked the time to commit the murders. In the Kennedy assassination, the argument has been made that, even according to tests run by FBI sharpshooters, Oswald lacked sufficient time to fire three shots from his Mannlicher-Carcano bolt-action rifle in the time frame established for those shots by the Warren Commission based on its review of the well-known Zapruder film.
- In the Simpson case, the defense argued that there was no conceivable way for O.J. to have committed two bloody and savage murders and yet to have emerged so relatively free of bruises or blood on his body. In the JFK case, critics for years have questioned how one bullet could, as the Warren Commission concluded, go through President Kennedy's neck, enter Governors Connolly's back, go through his chest, re-enter and exit his right wrist, and then finally lodge in his right thigh, all the while emerging in relatively unscathed or "pristine" condition. (This, by the way, is the gist of the so-called "single bullet theory," the architect of which was Arlen Specter, current Senator from Pennsylvania and former staff attorney for the Warren Commission.)
- In O.J.'s case, there was the allegation that a bloody glove was planted on his property. In the Kennedy assassination, suspicion has always surrounded the fact that the aforesaid pristine bullet was said to have been innocently discovered by a hospital orderly while it laid on a gurney outside the Emergency Department of Parkland Memorial Hospital in Dallas.
There are many other examples in both cases where the evidence "just doesn't fit," but it is beyond the scope of this article to discuss those items. The larger point to be made is that in any case, civil or criminal, if a party has enough time and resources to scrutinize his opponent's case ad nauseam, instances will be discovered where the evidence "just doesn't fit." Any attorney who has ever prepared a case for trial recognizes this as a given in the litigation process. Why? Because the perception, recall and credibility of human beings is now, and forever shall be, imperfect.
If we take it as a given, however, that no case fits together perfectly, one may logically pose this as the next question: "Why, then, doesn't the party bearing the burden of proof (prosecution or plaintiff) lose every time?" There are several answers, but the one most relevant to this discussion is that in many civil cases, and indeed in most criminal cases, the defense counsel lacks the resources (either time, skill or money) to find these latent inconsistencies. (By the way, it should be pointed out that, while seasoned trial attorneys accept the proposition that any case contains certain bits of seemingly irreconcilable evidence, the Simpson case shows us that jurors do not. Stated otherwise, the average juror's expectation is that the evidence should indeed "fit.")
O.J. Simpson was a very unusual defendant who, because of seemingly unlimited resources, was able to demonstrate an extraordinary number of apparent gaps in the prosecution's case. Thus, the first thing to realize in trying to explain or understand the Simpson verdict is simply this: In terms of trial preparation, his defense team was light years away from the level of preparation that can normally be achieved by defense counsel in a typical murder case, that defense counsel usually being either the public defender or a sole practitioner. Hence, this jury had before it an entire menu of evidentiary conflicts from which to choose, whereas the usual case offers at best a morsel of contradiction.
The second common feature to emerge from a comparison of these two epic cases is that one cannot overestimate the importance of a favorable jury climate. In the Simpson case, the defense, having discovered those inevitable ill-fitting pieces through mammoth pre-trial investigation, had the additional good fortune of presenting those inconsistencies to the right jury pool. From all that we outsiders (those of us not living in Los Angeles) have read and heard, the tension and mistrust between the police department in L.A. and the African-American community has for some time been more intense than that which exists in most any other major city. The events surrounding the Rodney King incident, which preceded the Simpson case by only a few years, only aggravated that situation. Thus, as of the time those jurors (most of whom were African-American) took their seats in the jury box, they brought with them a mind set which was most receptive to the defense theory that all of the inconsistencies pointed toward a global case of police misconduct. In short, it was an argument that one could legitimately "sell" in L.A. (It should be noted that the terms "sell" or "receptive" are not used in a pejorative sense.
Jurors can undertake what they genuinely regard as an impartial review of the evidence, yet for reasons grounded in the peculiar human perspective from which they digest those facts, arrive at a decision others may regard as irrational.)
Turning back to the Kennedy assassination, let us assume that Oswald were to be put on trial today and that he could assemble a defense team armed with all of the doubts and apparent contradictions developed over the years by the assassination buffs. Could he be convicted? I have serious doubts, even though, as noted above, I believe the evidence clearly establishes his guilt. Why? Because the jury pool would be quite receptive to the inevitable defense argument that Oswald was merely the "fall guy" for a larger political conspiracy generated to (a) avenge the Bay of Pigs invasion; (b) cover-up a CIA initiative to eliminate JFK; or (c) advance some other political agenda. In this post-Vietnam and Watergate era, with the populous largely stripped of its political naivete, people are now willing to believe that government institutions can lie, mislead, and engage in a range of sinister conduct, even that approaching the level necessary to "pull off" a Presidential assassination. Indeed, numerous public polls have shown that many Americans simply do not accept the Warren Commission conclusion that Lee Harvey Oswald alone killed the President. Are these people, who represent a broad demographic cross section of society, any less irrational than the Simpson jurors? I think not.
Having compared these two cases, it is clear that in both instances there is the proverbial "mountain of evidence" implicating the defendant, yet in either case a conviction either could not be obtained, or in Oswald's case, would be most problematic. And in both murders I submit that the impediment to achieving guilty verdicts would be the same: the timely convergence of tremendous trial preparation and a favorable jury climate. I do not use the word "convergence" lightly, for I believe both elements would have to be present to produce acquittals in these cases. For example, even with a "Dream Team" level of preparation, I suspect that O.J. stood a much better chance of being convicted if his case had been tried in a city other than L.A. By the same token, if a public defender tried O.J.'s case, even to an L.A. jury, his chances of being convicted would be high because he would not be able to marshall the all-out assault on the prosecution's evidence necessary to satisfy even a "favorable" jury's need for some semblance of reasonable doubt. Similarly, in the JFK assassination, both elements would be necessary to produce an acquittal for Oswald. Had he been tried before the public developed the cynicism and mistrust that was to begin festering during the Vietnam era and become full-blown during the Watergate era, e. g. 1964 or 1965, I suspect that a jury would have had little trouble in returning a conviction. On the other hand, even if he were tried in 1995, Oswald would be hard-pressed to avoid conviction if he was not able to provide the jury with a sufficient number of holes in the prosecution's case to activate their quiescent suspicions of the government.
In the end, while the two cases have much in common, what is most revealing about the Kennedy assassination as it relates to the O.J. Simpson acquittal is what the two cases do not have in common, namely, race. In the Kennedy assassination, the larger issue is global or national politics, not the social relationship between different groups. What this tells us is that a jury in any case, be it civil or criminal, comes into the courtroom with a perspective on human events which in large measure shapes at the outset how they will assess our evidence. When that perspective is sufficiently distant from what one regards as "mainstream," it means that they may reach a verdict which one regards as irrational and completely contrary to the evidence. Surely this should come as no surprise to trial attorneys, for we have all urged jury panels in our opening statements or closing arguments to "not leave your good common sense and life experiences at the courthouse steps." That being so, therefore, we should hesitate to charge the Simpson jury with undermining the system by "ignoring" the evidence for racial reasons when they render a verdict which, in their mind, represents a genuine application of their life experiences to the contradictions brought out by the defense. In short, we should be no more inclined to attack those jurors than we would be prepared to assail those who would "ignore" overwhelming evidence and acquit Lee Harvey Oswald of the murder of John F. Kennedy.