The O.J. Verdict
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Kimberle Williams Crenshaw
Crenshaw

Kimberlé Williams Crenshaw is a professor of law at Columbia University and the UCLA Law School. In this interview, she explains how the dynamics of race played out throughout the Simpson case and why the trial's ramifications suggest to her that America is a "post-apartheid society." A close observer of the trial, she also addresses some of its key issues, including Detective Mark Fuhrman's bigotry, the scientific evidence, and the charge made that the defense used the "monstrous defense" of race. "Yes," Crenshaw tells producer Ofra Bikel, "[that charge] was another eye-opening moment … when the vast difference in ideology, in consciousness about race between whites and African Americans was made apparent." This interview was conducted on April 22, 2005.

What was the O.J. trial's meaning for you?

I think the O.J. Simpson trial was a revelation about the ongoing patterns of racial difference in American society. It is longstanding; it is historical. But over the 20 years or so since the civil rights movement, there had been an ideology that forced people away from racial conversations, away from recognizing that there were still tremendous disparities both in life experience and opinion, primarily among African Americans and white Americans.

The O.J. trial ripped the veil off of that denial and made people confront directly that we were still living in a history, we were still living in a reality, and it couldn't just go away by wishing it away.

What were the differences in perception about the trial?

The most significant difference can be summed up with a couple of flip things that are often said about the trial; for example, "The defense played a race card," or, "The jury engaged in empty racial payback." That's a view that sees race dialogue, sees discussion about race discrimination, essentially as a game. It's a make-pretend. There is no reality here. It's "We're engaging with people who are using race as an excuse." That's a perspective that not all white people have, but that's sort of the position that was taken in the debate.

And the other side of the debate was that race is real. We're talking Los Angeles. It had just been through the Rodney King beating, just been through a major racial uprising, just had been through an acquittal of not only several police officers, but a Korean shopkeeper who had killed an unarmed young black woman. So for people who experienced that, they looked at those episodes and said, "Either that could have been me, or that could have been someone that I know."

So you have one side that sees race as just a fantasy and another side that sees race as a reality that shapes their everyday worldview, and that's the prism that two sides went into and came out of that trial with.

What was the context and significance of this case occurring in the city of Los Angeles?

I think it's fairly clear it was the interracial coupling -- African American man, Anglo blond woman -- that garnered so much emotion and attention.

One couldn't imagine a more racially stressed space than Los Angeles in the early and mid-90s. One has to remember everything that had happened in Los Angeles. First you have a Rodney King beating that the whole world saw and was appalled by. Then you have its high-profile trial that's moved out of Los Angeles into an all-white suburb, and then you have an acquittal.

Then you have a homicide of a young black woman in a Korean shop in South Central who was also effectively acquitted. [The Korean shopkeeper] was just given a fine. Then you have rumors that are at this point unsubstantiated, but many people in the black community are aware of the fact that there's all kinds of police misconduct going on in the Rampart division -- complaints are being made, all sorts of things are happening, and there's denial about that. And this is all happening while generally the white community on the west side is supporting the police. They're not open to any kind of reform.

And so there's this underlying tension between the reality that people inside the black community and inside the Latino community are living with, with respect to race and the police, and the fantasy on that white side of town that all is good; we live in a colorblind world. You throw a high-impact, intense, interracial crime that involves race, sex, gender in the middle of that, and you're going to have an explosive case. And that's essentially what happened. The stage was set, and it exploded.

Many people said that they had never thought about race until the verdict.

Yes. That's an amazing statement. To never think about race means that it doesn't really shape your life, or more specifically, the race that you have is not a burden to you. It is not a risk factor for you. So when you see things happening like the Rodney King beating, it's a travesty of justice, it's a shame that it still happens in this day and age, but one doesn't go about the next day thinking, "Wow, that could have been me, or that could have been someone that I know and love."

So for people who can separate their lives from ongoing problems around race, then yeah, the O.J. Simpson trial would be one of the first times they actually had to think about race. And more importantly, it's one of the first times they had to think about race as getting in the way of something that they desperately wanted, which was generally a conviction for O.J. Simpson.

Why was there such fascination with this case, even before the verdict?

Well, there are a couple of standard answers. ... But personally, I think that the deep fascination is a fascination about race, about sex, about death. These three ideas have been merged together in a mélange since this country has been formed, the idea that race and sex ... the wages of engaging in it is death. These are themes that are deeply part of the American racial psyche, and here it was all laid out on this television stage for people to consume and consume and consume, and that's what they did.

In other words, this fascination wouldn't have been there if the accused and his ex-wife were both black or both white?

I had always thought that it was the interracial dimension, the Othello-like metaphor, that was constantly invoked to explain this that really brought so much attention.

I mean, let's think about the Robert Blake murder trial that just concluded with an acquittal. It was a celebrity trial. But it didn't have nearly the same kind of attention, the emotional investment as this did. ... So I think it's fairly clear that it was the interracial dimension and that particular interracial coupling -- African American man, Anglo blonde woman -- that I think garnered so much emotion and attention.

Why didn't the prosecution take the jury consultants' advice that black women on a jury would be to a degree sympathetic to Simpson?

Well, first of all, the whole process of jury consultants is not a science. It's based on a bunch of hunches that might have criteria that might suggest that there is something more than just guessing. But generally speaking, it's some information that attorneys take into account. Often they don't do what the consultants tell them because they often think they know the jury pool; they know the ins and outs of the case better and the strategy that they're going to pursue. So it may have been any and all of those things that made [prosecuting attorney] Marcia Clark in particular think that the jury consultants were probably overcautious in putting black women in the jury.

I think, too, that there was a belief that the case was a tighter case than it turned out to be. No one really could have guessed how quickly some of the evidence was going to unravel based on mishandling and all sorts of irregularities. So there may have been the belief that it doesn't really matter who's on this jury, this case is so open and shut. So in that circumstance it's not surprising why race, gender, all those issues that then came into play weren't seen as being so significant at the beginning.

Why did middle-class black women lean toward O.J.?

I think there are a lot of reasons. Some of them have to do basically with what we know about the African American community in general, not necessarily distrusting the police, but not giving them trust either. And I think that was somewhat across the board for all African Americans, and maybe a lot of urban dwellers in Los Angeles.

I think second, if the idea was that the case was going to turn around certain images, namely that [it was] Nicole [Brown Simpson] being the angelic, lovely victim and O.J. being the savage bestial monster of a killer, that that kind of framework wasn't really going to work unless you could get a set of jurors who would identify with Nicole as the angelic victim. And for all sorts of reasons, that wasn't a narrative that was going to play well to a lot of different jurors, but particularly not to African American women jurors. They would see that as being a particular kind of race and gender card, if we want to use that language, that the prosecution was willing to play.

What were your thoughts during trial?

I was amazed at how in a high-profile case like the O.J. Simpson case, when everyone knew from the beginning that this case would garner the attention of the world, you would think that the police would play this one by the book -- no shortcuts, no funny stuff, everything has to be done according to the standard practice of police procedures and investigation.

So what amazed me was not that it didn't happen, but that they didn't even seem to know what the book was. ... And it revealed to me how much of a distance there is between what they're taught to say when they get on the witness stand -- they know that script -- versus what they do in the everyday investigation.

You are talking about conducting a search of the Simpson house without a warrant?

The warrantless searches, the shoddy way in which evidence is collected and preserved, the missing pieces of evidence that show up and disappear, the appearance of different concentrations of blood here and there, blood preservatives appearing here and there -- just lots of things that let you know that the professional standard and the actual standard in many criminal cases are not one and the same.

You would think that this would be the case where they say, "OK, let's cross all the t's, dot all the i's." And the fact that they didn't do that suggests that there is a shoddiness in police practice that is institutionalized; it's systemic. That was the part that was shocking to me.

Any other things about the trial that struck you?

I was amused by sort of the double wordplay that was going on, particularly between Johnnie Cochran and Christopher Darden. Darden was in an unenviable position. I call it institutional entrapment. It's a position that a lot of people of color, women, often find themselves in, when they realize that the institution that they're operating in is deeply flawed along lines that would have everything to do with their very identity.

So Christopher Darden knew from the beginning that the [Detective Mark] Fuhrman testimony was going to be attacked because of Fuhrman's track record; that the jurors were going to look at Fuhrman and rip this guy apart. He knew from the beginning that the attempt to introduce the shoddier testimony through Christopher Darden was going to be read by the jurors as a race card that the prosecution was playing. So he knew this stuff; he worried about it; he wrote about it. But at the same time, he was institutionally required to act as though none of this was a problem.

So I was really struck and sometimes saddened by what that forced him to do in the course of the trial. And of course it gave Cochran the opportunity here and there to really try to rip the veil off of that. Christopher Darden had to go to the judge and basically say, "Do not let this evidence in that Fuhrman had used the 'n' word, because it will blind the jury; it will essentially make them incapable of focusing on the facts of the case." Johnnie Cochran says: "What are you saying, that black people are so disabled when they hear the 'n' word that they can't think anymore? What kind of stereotype is that that you, Christopher Darden, an African American man, has been put in the position to have to proclaim?" So I felt empathy for him; I felt sadness, a little frustration that he couldn't find a way to negotiate his way out of that institutional entrapment.

Was race all over the trial?

I think race was all over the trial, but so were a lot of other things. The problem was that there was no symmetry in the way one could talk about race as opposed to all the other things that the trial was about. So the trial was yes, about race. But it was about celebrity, right? It was about male-female relationships. It was about wealth. It was about sports heroes. So you could talk about all those other frames. But to even suggest at the beginning that race might play a role at all made people very uncomfortable. So there was a racial difference from the very beginning around the way certain frames were going to be talked about and the defensive posture in which race was going to be talked about.

And that completely changed after the verdict.

It completely changed after the verdict. ... There's a constant refrain: "Black people played the race card." But the real race card was after the verdict, when all of the performances of colorblindness -- "This isn't about race; we're beyond this" -- just evaporated in about a five-minute period. And it was for me, as an observer, a bone-chilling moment, because I and others of my generation are the post-civil rights generation, we didn't grow up around lynchings or white riots or really seeing the bare face of white rage.

So I was shocked by it because I saw white rage, even in the faces of my liberal colleagues, even in the faces of people who had donated money to [defense attorneys Peter] Neufeld and [Barry] Scheck's Innocence Project. I saw rage in their faces when they said that they were never going to send those guys another dime again, even though the work that these guys do is absolutely critical to fixing precisely the problems in the criminal justice system that we saw in the O.J. Simpson trial. And they said, "Well, you all should have thought about that before you cheered." Group punishment.

So white rage, group punishment -- these are the ingredients that formed lynching in the past. And that was one of the most frightening moments that I experienced.

Was it shocking for African Americans?

I have to say I was stunned by it. And I don't really consider myself to be a person of a lot of illusions, but I was stunned by how much middle-of-the-road to liberal people seemed to be very upset by this outcome and not upset at the people that they should have been upset at. So one could have been disappointed about this outcome, and one could have directed that disappointment to the failed project of policing the police, the failed project of creating incentives for prosecutors not to rely on them when they know that their credibility is in question. Be upset at the prosecutors for asking a question when you don't know the answer. You don't ask someone to put on a glove if you don't know it doesn't fit, right?

So these are all the things that they could have expressed their disappointment to. Instead, they expressed their disappointment first to the jury. They were tried and convicted in a second for racial payback. They were made into an all-black jury, although it was a multiracial jury, right?

And then the jury was framed in stereotypes: They were ignorant; they didn't pay attention; they were swooning. All of the worst stereotypes that you could think that might apply to black women got rolled out to explain this jury verdict. So when I heard this among some people that I didn't expect to hear [it] from, I realized that everyone had been performing a certain kind of colorblindness for many years, but just scratch that surface, and all the racial stereotypes, the racial longing, the racial demands, the expectations, they're there to come forward when disappointments rips the facade. And that's what I think happened in the immediate aftermath of the verdict.

How long did this reaction last?

There are some who would say that it continues to last. We have practiced now how to come back together and not talk about O.J., which I think is unfortunate. I think that in terms of our concerns about the criminal justice system, there has been very little movement on that. If there has been movement, it's more of the same rather than in a different direction. We have more Americans incarcerated now than in any time in our history and the second largest incarceration rate in the world. So the push to increasing criminal penalties, the pulling back on trying to constrain the police and enforce certain professional standards, all of that continued apace after the O.J. Simpson verdict. I think at best you have a context in which people have agreed to disagree.

And I would say lastly, the most disappointing thing that's ongoing is the failure to recognize that there are many other issues that were going on there that no one talks about. Let's face it: There were millions of white people that also agreed with the verdict. More white people agreed with the verdict than there are even black people in this country. Twenty-five percent of white people agreed with the verdict. So there's not been a moment where we stepped back and said: "OK, race was a part, but it wasn't the only part. There were a lot of other parts to this that we need to explore."

What about the issue of colorblindness in the society?

It's not true. And in fact, the proof is in the ways that people talked about the O.J. Simpson trial from the very beginning. The one thing that I think is revealing is when people would say, "Well, we don't think of you as black." Well, what does that mean? That's the first race card right there. It tells you there are thoughts about what blackness is; we're just going to exempt you from that. That's a race card. It's a white race card; it's not recognized as a race card.

When people talked about O.J. Simpson being race-neutral, that was a race card. It just meant we don't think of him as black. But race-neutral is just like flesh-tone Band-aids. It's not neutral; it's white. And one would have thought that at the end of the day, when you saw the picture on the cover of the national magazine that illustrated O.J. Simpson now being blackened, his reputation in the process of being darkened as he descended into criminality, that that would be a moment where folks would say, "Oh, yeah, yeah, we still do have that association between whiteness is good, blackness is bad." As long as he was on our side of the tracks, he was café au lait; the moment that it appeared as though he might be like a lot of other murdering husbands, then we give him back to the black folk, right? He goes back across the racial line. That's telling you there's a race line. But what's happened in the aftermath I think is just a denial again that that race line is there.

The charge was made that the defense used the "monstrous" race card in this trial.

Yes. Jeffrey Toobin, [writing in The New Yorker magazine] called the defense a "monstrous defense" -- another eye-opening moment, another moment when the vast difference in ideology, in consciousness about race between whites and African Americans was made apparent.

Let's think about it. What was monstrous about a defense that suggested that one of the key officers that found key evidence linking the defendant to the case was an officer who had manifested racial bias, particularly against interracial relationships, had claimed on more than one occasion that he did manufacture evidence, and had subscribed to a whole range of extralegal punishments that he thought would be appropriate for African Americans? It would be malpractice not to introduce evidence to undermine the credibility of this officer. Yet to a lawyer like Jeffrey Toobin and to many middle-of-the-road-thinking people, that's just off limits. Well, in whose world? In what game? In what play? In what narrative, is it off limits to talk about racial bias?

It's a white perspective.

It's a white perspective. Colorblindness is not colorblindness; it's the world the way we see it, the way we want to see it, and we don't want to talk about race. We don't want race to be relevant, so we're going to act as though it isn't relevant, and when you keep telling us it is relevant, we're going to call you the racists. We're going to say you're playing the race card. We're going to call you the monster for making us confront the monstrosity that is racism in American society.

And then the jury was accused of playing the race card.

Well, after a certain point, any mention of race was playing the race card. At a certain point one has to sit back and say -- first of all, to even use the metaphor "playing the race card," you're assuming the whole conversation about race is a game. Now, that in and of itself is a framework that's not shared by many people who are subject to racism. We don't see race discourse, race discrimination as a game at all.

Second, if you're holding the card that says this is probably a racist moment, you're not holding a winning card historically. People act as though playing the race card is the trump. The trump in the race card game is being able to say you're being a racist for talking about race. That's what closes down the conversation. That's what allows The New Yorker to publish something labeling this defense as monstrous and, by extension, those who are engaging in this defense as monsters. To talk about what actually may happen, could have happened, has happened, is to engage in a monstrosity. I can't think of a more searing example of racial denial in our society but that to call a spade a spade is called being a monster.

Was it used against the defense?

Oh, definitely I think it was [used] against the defense. And after the trial, the defense itself broke down, with some of the attorneys saying Johnnie Cochran dealt that card from the bottom of the deck, right? Now, if you talk to the jurors, the jurors were under the belief that the prosecution was playing race by putting Christopher Darden up to introduce [Detective Philip] Vannatter's testimony, for example, or asking him initially to examine Fuhrman. Playing race -- "Let's get the black guy to do it, because that will neutralize; they'll not notice, right? Or they'll at least take the credibility that I have and extend it to Fuhrman." A lot of people saw that as playing the race card and playing it from the bottom of the deck.

... And there was Marcia Clark on Fuhrman, who was reacting to the evidence [audiotapes of Fuhrman] that was trying to be introduced at that point to suggest that Fuhrman might have been biased against O.J. Simpson, that he had this track record, and that it was relevant. So this is another moment where introducing the possibility that race might play a role in undermining someone's credibility itself was seen as a monstrous thing to do. So she went through all the motions to say how terrible this was, but she knew while she was going through the motions that it was terrible, that it was true, that he had said all these things.

Marcia Clark knew it was going to be a risk to have Fuhrman testifying in the trial?

But they were relying on Judge [Lance] Ito to make a ruling in their favor. Remember, Chris Darden went to the judge and argued that if you let this evidence in about Fuhrman, this case is over; it's going to be a race case. He says, "I was the one who was screaming, 'It's going to be race, it's going to be race,' and effectively saying that these jurors will not be able to do their duty once this evidence is introduced." It was the extension of the monstrosity. You roll this in, and the whole case is over, right?

Now, one might ask why would they have thought that this was so irrelevant and so monstrous that it could not be introduced? And it's again based on this idea that we're going to all act as though none of this stuff happens; we're all going to act as though the idea of a racist cop is the furthest thing from our imagination; and even if there is one in the woodpile, we're going to act as though the rest of the woodpile is not contaminated, and it's not even a question as to whether or not it's relevant to the rest of the woodpile. Well, there's a debate about that. And a lot of people are of the mind that if there is evidence that somebody has a lessened credibility, if there's evidence that they might tamper with evidence, that it is as relevant in this case as it would be in any other case when someone has said they tampered with evidence.

Why did Marcia Clark use Fuhrman?

Well, Marcia was dealing with two factors. Number one, Fuhrman was a key investigative witness. He found key evidence, the famous glove. If you get rid of Fuhrman, you have to explain why he's not there to explain where the glove was found, and that creates all kinds of reasonable doubt on the part of the jurors.

But then the second question you might ask: Well, so that might be the case, but why still would she risk it, because there was other evidence that could have been used to link O.J. Simpson to the murders. And I think frankly the answer to that was that they didn't really think that Judge Ito would allow this negative information about Fuhrman in. They would have said it's irrelevant; it's going to inflame the jury; they're not going to be able to focus on the actual evidence. So I think they had reason to believe that the evidence wouldn't come in anyway.

Now, beyond that, I think there are professional questions that should be asked. Should a prosecution attorney rely on an officer that she knows has lied in the past and has given every indication that he can manufacture evidence? That's the professional ethics question that I think should have been asked at the end of the trial, and it just wasn't seriously discussed.

Why did the domestic violence argument play so badly?

Even they had to be convinced to introduce the domestic violence evidence. Initially, no one really used that frame to talk about Nicole Simpson's murder. Even her sister was among the first to deny that Nicole was a domestic violence victim. That was a private family matter, and the prosecution pretty much shared that idea. In fact, the whole idea to move the case through a domestic violence lens had to be lobbied by other prosecutors in the office who camped out for days to get an opportunity to persuade the prosecution to use domestic violence. So it was an afterthought from the very beginning.

Then when they went in, they made promises. They used the whole metaphor of the long-ticking time bomb that eventually was going to explode, so they introduced it to kind of be the frame of the case. But they hadn't framed the actual laying out of the evidence in that way. Because of some ruling, some of the evidence that they promised to connect the fuse to the time bomb was never introduced, and by the time Christopher Darden, who was supposed to be the one who introduced a lot of this evidence, went to do so, he'd been so discredited by a lot of other things that had happened early that it's not surprising that that evidence fell flat.

So you had to be invested in it from the very beginning in order to make the best case possible, and I simply think that this was not the case here. They were not invested, they didn't make the best case of it, and there were some questions as to whether that frame was even going to be useful, even if they had done a good case of it.

What do you think are the ramifications of the case?

I think that what it suggested to us is that we are a post-apartheid society, and I don't mean that as a time. It's not a temporal statement; it's a substantive description of who we are.

We are a society that has been structured from top to bottom by race. You don't get beyond that by deciding not to talk about it anymore. It will always come back; it will always reassert itself over and over again. So I think it raised the question: Has the cost of being a society that is structured by race and we don't talk about it, has [the cost] gotten so high, has [it] come to a point that we all agree that we can no longer ignore it? That's what I had hoped the O.J. Simpson case would represent to all Americans.

But it didn't.

I think the fact that there were options to get around black subjectivity -- let's circumvent; let's not consult them; let's change the rules so we don't need their agreement; let's punish them; let's ostracize them -- the option to use power to solve the problem rather than reconciliation to discuss the problem is a long-standing habit. That's what being a post-apartheid society means.

What are your thoughts on the issue of tainted or mishandled DNA evidence?

Look, there are former defendants who are walking the streets today because it was discovered that evidence was manufactured against them, either at the investigatory stage or even once the evidence went to laboratories. There have been prosecutors who have been prosecuted for this. There have been police officers who have been dismissed for this. There are even federal-level employees who have been found guilty of engaging in this kind of behavior.

Now, one doesn't have to say it happens all the time. One can say it happens less than 1 percent of the time. The point is there is a history, there are occasions, there have been people who have been sworn to uphold the law who believe that that includes giving the evidence a little help, right? So for people to say it's absolutely impossible would suggest that they either don't know about these other cases, or they think that there's something unique about this case that makes it impossible that this could have happened. And I've not yet heard the story that makes this absolutely impossible. I'm not saying it happened, but I'm equally stunned by those who think it's absurd or preposterous. It hasn't been so absurd and preposterous not to happen in these other events, so why would we assume that it couldn't possibly happen here?

Did the media shape people's views?

I think that it's impossible to talk about this case without understanding that what most people know about it is what the media told them. Initially, the media gave people all the cues about how not to talk about this case when they say it's not about race, and "He's just like us, and we really love O.J." And then they told us how to talk about the case when they framed it as a sports game: "Well, the defense hit a home run today," or, "It was a slam dunk for the prosecution."

Then they took us through a period where they were fairly critical of the prosecution and suggested that there were some serious concerns; that at best maybe we were only going to get a hung jury. So they kind of calmly talked about that, and then they started moving into the mountain of evidence, mountain of evidence, mountain of evidence.

So why were a lot of people so convinced that the jury was going to convict? Had they sat through all of the testimony? Did they see everything the jurors saw? No. What they heard was what the commentators constantly told them. What they heard was criticisms of some of the defense moves, like "the defense monstrosity," so they hear "mountain of evidence, defense monstrosity." The media really shaped how people related to this case.

When the verdict was announced, what were people celebrating?

I think people were celebrating the fact that for once they felt the system worked. This is the thing that surprised me so much. Here is a system that's designed to acquit people when there's reasonable doubt about the strength of the prosecution's case -- not whether he's factually guilty or innocent, but that the rules allowed for an acquittal when the evidence did not stack up. So why would everyone infer that the cheering was cheering because O.J. got away with murder rather than the cheering is for an excellent attorney who turned the state's case inside out in a context that was riven with all kinds of police problems over the course of many years?

So I saw the cheering, quite frankly as, "Well, maybe if we get skilled people and a bankroll to make it work, it might be able to work with us." I couldn't understand why people wouldn't say, "Well, there's a moment of the American dream when the criminal justice system can acquit an African American man who's accused of murdering a blond woman." That is a moment where the system actually produced something that no one thought it could.

And the reason to be proud was Johnnie Cochran, too?

What people were celebrating was the brilliant performance of an African American lawyer who was able to use his skill, use his savvy, master his case, master the law and achieve justice in a system that many times did not deliver justice for African Americans. I think this was an amazing moment for many African Americans. We had been used to seeing celebrities now for 20 years, but we had never really seen upfront and personal a black lawyer of his caliber, of his skill, doing what he does best. And there was just frankly a lot of pride in Johnnie Cochran's performance.

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posted oct. 4, 2005

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