The O.J. Verdict
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interview: alan dershowitz
Alan Dershowitz

A member of the Simpson defense team, Alan Dershowitz is a professor at Harvard University Law School. Here, he discusses why the case became "all-consuming," the strategies of prosecution and defense, and why the verdict so divided the country. In the end, he says, the justice system not only worked, it worked "too well." The trial, he tells FRONTLINE, "shows what the defense is capable of doing if they have the ability to use all of the constitutional protections that are given them by the Bill of Rights … what can happen if the defense has access to the best experts and lawyers. So it showed … that in fact the system will operate on the principle of better 10 guilty go free than one innocent be wrongly convicted. And you know what? The public doesn't like the system. The public much prefers the old system in which the prosecution really doesn't have to prove the case beyond a reasonable doubt. …" This interview was conducted on April 12, 2005.

How did the police start their investigation of this case?

The police found out there had been a double murder and immediately suspected O.J. Simpson. You always suspect the husband, particularly when you know the husband has a history of being accused of abuse. They go to his house. They could have tried to get a warrant by telephone, [but] they knew no judge would grant a warrant, so they made up a story. The story was that they had to climb over the wall in order to protect O.J. Simpson from the possible killer. Of course what they wanted to do was find O.J. Simpson there before he had gotten "lawyered up" so that they could use their magic and try to get him to confess his crime. They also wanted to conduct a search that they probably would not have been able to conduct had they sought a warrant. And they were prepared -- as police often are in certain circumstances -- to lie about the level of doubt they had.

Let me put it another way: At about that time, there were only four people probably in the whole world who didn't suspect O.J. Simpson of killing his former wife, and those were the four policemen who under oath claimed that they didn't suspect him at the time. Everybody else who knew about the facts of course suspected him.

Is that when they discovered the bloody glove?

Well, there's always been some doubt about how they found the glove, but the claim is [LAPD Detective Mark] Fuhrman was climbing around the back [of Rockingham, Simpson's estate], and he discovered this bloody glove, made this miraculous finding. ...

And this then led to the discovery of other incriminating evidence?

It was a circumstantial case with overwhelming evidence, and a case that the prosecution easily could have won if they hadn't made so many mistakes.

There were a number of policemen, all of whom were acting in concert. There were policemen like [Detective Philip] Vannatter, who had access to the blood samples, and there was Fuhrman, and there were others. They had a common goal, and their goal was to convict the man who they honestly in their hearts believed was responsible for this. They weren't trying to frame somebody based on his race. They weren't trying to put somebody in jail who they thought was innocent; that never occurred to them. They, in their own heart of hearts, knew who the guilty person was. They also knew that there were barriers, legal and constitutional barriers, to achieving justice, which is getting the right person. And so they were prepared to circumvent those barriers.

But if the evidence they had collected at the estate [was] thrown out because the police didn't have a warrant, would the prosecution still have had a case against Simpson?

There is no elected judge in the state of California who would have thrown out the bloody glove, even though the law required them to do so. There isn't an honest judge in the state of California who wants to be re-elected or promoted who would have thrown out the major piece of evidence in the O.J. Simpson case. That would have been the right thing to do, but it never would have occurred to a political judge -- and judges are by their nature political -- to become the worst villain in California history; namely, the man or woman responsible for freeing a guilty murderer.

And this is how the case against Simpson started?

It started with a decision to violate the law, to convict a person who they believed was guilty.

And right away there was a media feeding frenzy.

Oh, of course. You get enormous publicity when the former wife of one of the most famous athletes in the country is found murdered. Of course there's enormous publicity. ... You could not have had a case which produced a more perfect storm of publicity: prominent black athlete, dead white woman, white Jewish man, the 911 call, the slow-motion chase, the team of lawyers assembled. Everything was calculated to make this a major media attraction. ...

What was the prosecution's theory?

The prosecution's theory was very simple: mountain of evidence. How can you explain the blood on the glove, the blood on the socks, the blood on the floor, the blood on the gate? It was a circumstantial case with overwhelming evidence, and a case that the prosecution easily could have won if they hadn't made so many mistakes.

Number one, they relied on lies. They overstated their case. They planted evidence. They didn't have to, but they did. They put on a policeman who was a Nazi lover and a perjurer and an evidence planter. That made our day, as the defense. And the defense decided to do something very simple: put on only truthful expert witnesses; put on no one who was in any way really controversial.

So the defense presented a credible case, [and we were] able to show that the prosecution's case was full of lies. That doesn't mean that ultimate truth was on one side or the other, but the defense got the jury to focus on the lies of the prosecution rather than on the innocence or guilt of the defendant.

What was the defense's theory?

The theory of the defense was when you find a certain amount of lying and evidence planting on the other side, you can't trust any of the evidence, so the mountain wasn't enough to convict if a few of the hills and valleys were corrupted. And it was summarized by our expert witness [Dr. Henry Lee], who said, "If you find a cockroach in a bowl of spaghetti, you don't look for another cockroach before you throw out the whole bowl of spaghetti." And the argument was, you couldn't trust anything these policemen said or did because we proved that they lied about certain things and planted at least some evidence.

Which evidence do you think was planted?

There is absolutely no doubt that the sock that was soaked in blood was planted. Why? First of all, the blood had EDTA on it, a chemical that's an anticoagulant that is not found in the human body; it's only found in tubes. So we were able to prove that the police had poured blood from the test tubes onto the sock.

Moreover, the splatter pattern on the sock was such that it was consistent only with blood having been poured on the sock, and not with blood having hit one side of the sock and then soaked through the leg in the middle and then hit the other side of the sock.

Third, there was a videotape of the house on the morning of the search which showed that the black socks were not on the white rug in the place where the police claimed they found them. So I think all the jurors concluded that the sock was planted. And once you conclude that the blood on the sock was planted, you begin to have doubts about all the rest of the evidence.

Why would the investigators have planted evidence? Didn't they have a strong case against Simpson without it?

I think they did have a very strong, winnable case without planting evidence. First of all, they weren't sure that the glove would not be excluded, and if the glove were excluded, then they needed the sock. And they didn't know at the time they tampered with the sock that the glove would be admissible. They also wanted a slam-dunk case. They wanted the strongest possible case.

I think one reason why the prosecution decided to bring the case in Los Angeles County, where they knew they would get a [pre]dominantly black jury, was they thought they were going to win, and they would rather win and convict a prominent black man by black jurors than by white jurors. They did not want a repeat of Simi Valley and Rodney King and white/black, black/white. They wanted a black jury to convict a prominent black man. And they made a terrible blunder by allowing eight black women to serve on the jury.

I think [prosecuting attorney] Marcia Clark believed that gender would trump race with black women, and it turned out that wasn't the case; that many of these women identified much more with their brothers and fathers and uncles, who had seen police harassment. They were black first and women second. ...

What were the public's complaints against the defense?

Well, the biggest complaint is that we won. If we had lost, everybody would have said: "Wow, what great lawyers. They did their job. Of course they lost; they had to, because justice required it." Our biggest sin was that we won.

The second biggest sin is that we understood the rule of race in this case. And the third biggest sin is that we put the police on trial. Instead of defending our client, we prosecuted the police, and that was the best strategy for winning this case. It was a strategy that I had devised 15 years earlier in a book called The Best Defense where I said, "In a case like this, you put the prosecution on trial."

But is putting the prosecution on trial going to uncover the truth about the killing?

There are many levels of truth. Whatever you believe the truth is about whether O.J. Simpson killed these people, that's one level of truth. Another level of truth is, did the police plant evidence? Another level of truth is, did the police lie in order to conduct a search? Another level of truth is, did Fuhrman make statements about race that the jury never heard about? There are different levels of truth. There's ultimate truth; there's intermediate truth; there's preliminary truth. Everybody likes one part of the truth and not the other.

If you're a prosecutor, and you believe the defendant is guilty, you only talk about ultimate truth, but not intermediate truth. If you're the defense attorney, you care deeply about intermediate truth, but you tend to neglect ultimate truth. So everybody likes certain truths and dislikes other truths, depending on whether it serves their interests.

Read more about the different layers of "truth" in a criminal trial in this chapter from Alan Dershowitz's book, Reasonable Doubts .

... The other thing that I think the public hated is this showed how the Constitution is really supposed to work. This was a case with a level playing field. This was a case where the defense had not quite as many resources as the prosecution, but roughly the same resources. We had the best forensic pathologists. We had the best lawyer on DNA, Barry Scheck. We had the best trial lawyer for a Los Angeles jury, Johnnie Cochran. We had F. Lee Bailey, who had more experience than any lawyer in America. We had Jerry Uelmen and me, who could do the sophisticated legal research. We had [forensic pathologist] Dr. [Michael] Baden; we had Dr. Lee. We could stand mano a mano against the prosecution. And the public didn't like a level playing field, because in a level playing field, when the burden is on the prosecution to prove guilt beyond a reasonable doubt, the defense will often win.

Is such a rigorous defense really necessary when there is already a heavy burden of proof on the prosecution?

I think most defense attorneys honestly believe the principle that says, "Better 10 guilty go free than even one possibly innocent person be convicted." We generally don't know whether our client is innocent or guilty, certainly not at the beginning. We presume them innocent. We think they may be one of those who possibly is guilty, but our job is to press the system as hard as possible to make sure that no innocent person is ever falsely convicted, and to achieve that goal we are willing to see the occasional release of the guilty person. That's part of the system.

But then you must sometimes stand between the guilty and the service of justice?

I am standing between a guilty man and justice in the same way that Abraham argued with God over the sinners of Sodom in the book of Genesis when God said, "I'm going to kill all the sinners," and Abraham said: "Wait a minute, God. What if there are 50 or 40 or 30 or 10 innocent people?" And God admitted that you can't kill people if there's a possibility that someone might be innocent. That's what the defense attorney does; he does stand between the state, the police, the prosecution, the public and his one defendant. He's the one person in the world -- the defense attorney -- who has one duty and one duty alone, and that is zealously to defend the rights and interests of his client.

Do you ever wonder if maybe O.J. really did it?

Every day I thought about did he do it or didn't he do it. Any human being has private thoughts. I closely identified with the victims in the case. I closely identify with a battered woman. I closely identified with a Jewish man. I identified with the parents, with the families. I constantly asked myself, "Did he do it?" And I constantly asked myself, "Am I on the right side of this case?" Any defense attorney who's a human being has to have conflicting emotions about a case where uncertainty prevails. That's true of every case I'm involved in.

But ultimately you felt that being on the defense, you were on the right side?

Well, you're on the right side if you think of your role as making it hard for the government to prosecute people and making them overcome a very, very heavy burden. But sometimes you lose sleep at night. You say to yourself: "What am I doing? Why did I go to college and law school, and why have I been doing all this? Is it to simply help the process work? Aren't I entitled to think about whether I'm on the right side of the particular case here?"

And every lawyer who's also a good person has these ambivalences, and then you have to stop and think, I have a role in the process. I'm like a priest, and when somebody confesses to a priest, the priest doesn't think of himself as a member of society who immediately goes on television and says, "Let me tell you what my penitent told me in confidence." You know you have a role to perform; your role is as a priest. My role is as a defense attorney, and we each have to have a different morality, a role morality, if we're going to perform our role in the way that we're supposed to.

Is F. Lee Bailey the only member of the defense who has never had any doubts about Simpson's innocence?

F. Lee Bailey is not a man of nuances or doubts. He came into the case absolutely believing O.J. Simpson was completely innocent. He had a theory that the timeline did not permit him to do it. He wanted O.J. Simpson to testify, and he thought he'd be a great witness. I think the civil trial demonstrated that maybe Lee was not 100 percent right about his assessment.

I took a very, very strong view that O.J. Simpson should not testify because I thought that we wanted to keep the focus on the police. We wanted to keep the focus on the misconduct. Once you put a defendant on the witness stand, everything else becomes irrelevant in the trial. All the jury wants to [do is] ... to look the defendant in the eye, and they want to say, "Do I believe what he said, or don't I believe what he said?" That's not the trial we wanted to see conducted. We wanted to see a trial of the prosecutors, of the police, of the labs. We wanted to put the state on trial.

But is that really your job as a defense attorney?

That's my job: to put the state on trial, to make sure that the state behaves properly, that the police behave properly. One potentially guilty murderer going free will not destroy a society; a corrupt police force, a corrupt prosecution, a corrupt state, will.

Maybe I'm skewed by the fact that in the 1970s I litigated many cases in the former Soviet Union, and I've litigated cases all over the world where corrupt police forces and corrupt states conspired to go after innocent people, so I'm much more worried about the government than I am about an individual, possibly guilty criminal.

Was the verdict intended to send a message to the LAPD?

Well, Johnnie Cochran's closing argument was, you have to teach a lesson to the police of Los Angeles. And it's interesting, because he was reviled for that, and I was, and many others were. And then the police scandal emerged in Los Angeles just a little while later. I got a number of public apologies on radio talk shows, from hosts and others saying: "You alerted us to this scandal before it happened. We could have stopped it. We wish we had listened to you."

What was your experience of the aftermath of the trial?

There are many kinds of ramifications on the personal level. Everywhere I go and everywhere any of the defense lawyers go, people still come over to me and say, "Oh, by the way, you know he was really guilty," as if somehow that should be a devastating statement for me that they think he's guilty. So on the personal level, there's still what my mother calls the "Oy vey, O.J." problem: that people regard anybody who had anything to do with O.J.'s defense as tainted somehow.

The divisions have mostly disappeared. When I teach the O.J. case in my classes now, you don't get the kind of personal feelings that occurred 10 years ago, eight years, even six years ago, because the current generation of students doesn't have a current memory of the O.J. Simpson case. Their parents told them about it. They were kids, or they weren't focused on it. So I think in that respect, that part of the legacy is gone, and the case didn't leave a great many legal precedents. I mean, nobody cites the O.J. Simpson case.

And what were the ramifications of the trial from a legal standpoint?

I think a few things. Number one, cases are no longer as much on television. The Michael Jackson case is not on television because of the O.J. Simpson case. I think that police have cleaned up their act a little bit. I think policemen know they're going to get caught now. The specter of Barry Scheck hovers over police departments, and that's a good thing. So there are mixed legacies.

Is it worth revisiting this topic now, 10 years later?

Oh, I think it's very much worth looking back at the O.J. Simpson case 10 years later, because it was a transforming case in American social, racial and legal history. You can't understand the legal system in America without understanding the O.J. Simpson case. You can't understand the reaction people have. It still continues to have an effect on some jurors. Jurors expect a higher level of proof today. Jurors are much more suspicious of policemen and police testimony today. I think all in all, it probably had a beneficial effect on law in America.

Such as?

You can really list all the beneficial effects very simply. Los Angeles now has a wonderful police commissioner, chief of police [Bill] Bratton, who is very sensitive to civil liberties, very sensitive to honesty. There has been a sea change in [the] Los Angeles police department as a result of this case. The DNA labs all over the country are changing dramatically. I've recently won two cases based on labs that we were able to expose for having made serious, serious mistakes. Juries are much more skeptical of police testimony about how searches were conducted. So-called testi-lying is now part of the American vocabulary. Everybody knows that there's "testi-lying." You no longer believe a policeman just because he's a policeman wearing a badge. And I think we've all become more expert on the legal system.

The one downside of the O.J. Simpson case is the proliferation of talking heads on television. The lawyers who are put on television to explain the cases, who nobody would ever hire to be a real lawyer, these are only pretty faces and gentle voices, but they don't know anything about the law. And a lot of the cable television shows are distorting the legal system terribly by not having standards for who they allow to describe the law and analyze the law. That's a very big negative of the O.J. Simpson case.

... And too many jurors now think of themselves as stars. They want to write their own books. They want cases to come out the way the public approves of its coming out. Everybody says: "Oh, I don't want to be another O.J. juror"; "I don't want to be another Judge [Lance] Ito"; "I don't want to be another Marcia Clark"; or "I don't want to be another Johnnie Cochran." You get people not wanting to replicate what caused criticism in the O.J. Simpson case. You also get some people saying maybe the defense has too many rights, too much access to information. Many people don't care about the process or fairness. They want "the just result"; they want guilty people convicted, no matter what it takes. ...

So the trial has had a lasting affect on the media?

I think after the O.J. Simpson case, the media realized it was on to something that Americans love: trials of celebrities. If [you're] not a celebrity, we'll make you a celebrity. The Scott Peterson case -- he wasn't a celebrity; he became a celebrity. And I think media-driven trials have now become a reality. You get to be tried both in the court of public opinion, by the talking heads on television, and you get to be tried in front of the jurors. The danger is that the jurors will be influenced by the talking heads and by the media coverage and that tactical decisions will be made by lawyers and by judges based on the media focus on the case. And that can be a great danger.

The media focus can also be a protection. It means that everybody is watching the judiciary, and the judiciary has to be more accountable -- not necessarily accountable to the general public for the results that are achieved, but at least in terms of honesty and lack of corruptibility. So the legacy is decidedly a mixed one.

Read more about the media's role in the O.J. Simpson trial.

Explain America's divided reaction to the vote.

The public reacted more angrily to the acquittal in this case than the public would ever react to the execution of an innocent person. This was taken personally by whites in America in a way that no other case ever affected them. This was somehow a legitimation of the pent-up racism that I think Americans have had to hold back since the 1950s.

The letters I got were unbelievable, from people of every background. I got racist letters from Jews accusing me of essentially abandoning my heritage to defend an African American. I got letters from liberals. I got letters from people on every part of the political spectrum saying this was the worst verdict in American history, forgetting about the fact that they all grew up with the notion "Better 10 guilty go free than one innocent be wrongly convicted." This case somehow became personal. One woman said to me, "It was like being hit in the stomach with a baseball bat." I said: "You don't even know the victims. How is it like being hit in the stomach by a baseball bat?" "Oh, it was so personal. It affected me in a direct way."

One of the interesting statistics is that people who watched the case every day on television were less surprised at the verdict than the people who got their news about it secondhand, from newspapers and from brief television accounts, because the secondhand accounts clearly had him undoubtedly guilty, whereas watching the trial itself made you aware that there were doubts in this case. This was a very, very weak prosecution, not because of the lack of evidence, but because of that lack of skill by the prosecutors and the reliance by the prosecutors on flawed witnesses.

Why was the country so drawn to this particular case?

The case was all-consuming. There were the trials; there were the meta-trials; there were the para-trials; there were the analyses of the trials. Everybody was consumed. On the day the verdict came down, the Supreme Court justices had notes passed to them. People lost days, hours of work. This was the most watched event in the history of television. And why? Why? Why was it so consuming? I could never understand that. To me it was just another murder case. I've had many in my career. This was not the most interesting; it was not the most important. And yet the public was just consumed with this case. ...

Everything came together -- race, celebrity, beauty, wealth, police perjury, the slow chase of the car, the media focus, tape recordings. It was the perfect storm, and it produced the perfect series of hurricanes, cyclones, earthquakes and tsunamis. It was just everything coming together.

Many people came away from the trial with the impression that money will buy you justice in America. What do you think about that?

Well, if anybody thinks money will buy justice, ask Martha Stewart, Leona Helmsley, Mike Milliken and many other people who have spent a long time in prison with all the money in the world. What money will do is buy you a chance at getting justice. Poverty will assure you injustice. Money gives you some chance of leveling the playing field and getting justice.

Is that what O.J.'s money bought him, a level playing field?

Look, O.J. was lucky. O.J. had the resources. He was lucky that the two prosecutors in the case were as inept as they were, that the policemen were as villainous as they were, and that the combination of circumstances allowed a jury which was going to be skeptical of many of these presentations made by the prosecution. So again, it was the perfect storm for the prosecution as well: bad prosecutors, inept decisions, bad witnesses and defense attorneys who were prepared to exploit every weakness that [the prosecution] had -- and they had many.

How sure were you that you'd win?

I was not sure. I thought the most likely result was going to be a hung jury, and I was furious at Johnnie Cochran for his closing argument, because I thought by invoking race in the [closing] argument, he would divide the jurors along racial lines. We knew we had two people on the jury who were white, and I was very much afraid of a 10-2 verdict of acquittal, which would have required a second trial.

A second trial would have been a great victory for the prosecution. They never would have tried on the gloves. They never would have put Fuhrman on the witness stand. They would have cleaned up their act, and they very well might have gotten a conviction on a second trial. So I was very concerned about a hung jury, [but] I never really thought there was going to be a 12-nothing for conviction.

Then Johnnie Cochran's strategy was right in the end?

Johnnie Cochran turned out to be right. His magic worked. He even got Anise Aschenbach, the white woman juror, to vote for him. She later said she regretted her verdict, but she was charmed by Johnnie. And remember, she didn't have to conclude that O.J. Simpson didn't do it; all she had to conclude was that there was a reasonable doubt, and reasonable jurors could so conclude. ...

[But] there were two components to the closing argument. One was Johnnie Cochran: smooth; race issues; teach a lesson to the police; we have the power. But people forget that an extraordinarily effective part of the closing argument was made by Barry Scheck, who was a scientist, who pointed to the doubts in the evidence, who pointed to the holes, who pointed to the valleys in the mountain of evidence. And so I think what happened is the combination of substantive, real, scientific doubt coupled with the appeal that Johnnie Cochran made brought about the result that all 12 jurors were able to coalesce around a verdict of not guilty.

I suspect that their reasons for coming to that conclusion were rather different. Some of them were on Scheck's side; some of them were probably more on Johnnie Cochran's side. But in the end, there was enough of a consensus to produce the unanimous verdict of acquittal.

So they could vote their hearts with Cochran and their minds with Scheck?

I think for some of the jurors, Barry Scheck gave them the intellectual and the moral permission to vote their heart. They wanted to vote acquittal. Barry showed them how to; Johnnie told them why to. ...

Four months after the trial ended, you participated in a mock appeal in Boston of how you would have argued Simpson's appeal had the first trial ended in conviction. You lost that appeal. Why?

Oh, I told everybody from day one, if this case were ever, ever to result in a conviction, we would never ever win the appeal; that the court would find whatever the errors were -- they were harmless errors; [and] that because of the so-called mountain of evidence, any jury would have convicted had the evidence been presented to them in any way. Appellate courts often do that. They make a mistake thinking they understand the trial dynamic, thinking they can count up all the evidence on one side and all the evidence on the other and decide how a jury would have decided.

The appellate court would have been wrong to hold harmless error, but nonetheless, I predicted that no appellate court would ever reverse this conviction, just like no judge would have thrown out the evidence. The only institution that could have acquitted O.J. Simpson was 12 jurors who disappear back in the community. No judge could have done that. ...

Did we see the same trial that the jury saw?

If you watch a trial on television, you know more than the jury in some respects and less than the jury in other respects. First of all, you know about inadmissible evidence, evidence which is kept out that probably gives you more information than the jury has. On the other hand, you only have what television lets you watch, whereas the jurors can watch the defendant when the camera is not. The jurors can watch the way lawyers relate to each other. The jurors can see a lot of things in the courtroom that gives them a sense of nuance about the case that the person watching on television does not get.

Who has a better sense of "the truth" then?

Probably, in certain terms of the ultimate truth, the outsider, the person watching it on TV and having access to the inadmissible evidence is more like the scientist. And the juror is more like the legal system is supposed to be. You know just what the film editors are giving you, what the judge is giving you, so probably the outsider has more ultimate truth available to him or her.

Isn't that frustrating to the jurors and to the public?

Let me put it in a more general way: In many cases, jurors, after they render a verdict, and they learn things they didn't know before, they say: "Oh my God, that was unfair to us, to the jurors. If we had known that, we would have come out differently." But there is a good reason why jurors don't know that, and that good reason has to do with "truth" not being the only goal of the system. It's a process, and sometimes evidence is admitted for reasons unrelated to ultimate truth. ...

Will we ever see another trial quite like O.J.'s?

You don't quite ever see the O.J. Simpson case again, although you see every day some part of the O.J. Simpson case. If you look, for example, at the Scott Peterson case and compare it to the case of [Robert] Blake, you get an acquittal in the Blake case and a conviction in Scott Peterson, and yet the evidence in Blake seemed to be more compelling than the evidence in Peterson. Why the difference?

In the Peterson case you had a terrific victim -- two victims: a wife, a baby. In the Blake case you had a victim who nobody seemed to much like or care about, and so you get verdicts that aren't based necessarily on the evidence, but based on external factors that aren't supposed to figure into the evidence.

Take Robert Blake: He was acquitted, and nobody said a word. Nobody complained that it was a miscarriage of justice. Why?

Nobody cares. First of all, there were some doubts, but second of all, nobody cares about the victim.

Did people really care about Nicole?

Oh, I think Nicole Simpson became both a symbol and somebody who people began to care about a great deal. Her sisters did a great job of bringing her alive to the public. I think the same thing is true with Ron Goldman. I admire both the Browns and the Goldmans. I'm not sure many other people on the defense team would say that. I think they did a great job in bringing their victims alive and making the public feel sympathetic to them. ...

Then why didn't the prosecution's emphasis on domestic violence fly?

The prosecution made a terrible mistake in how it used domestic violence. What it did is [make] the first weeks in the trial all about domestic violence. They were trying to create the impression that if you have beaten your wife or threatened her, you necessarily must have killed her. Obviously that doesn't follow, and the jury didn't fall for that. The better way of trying the case would have been to start with the dead bodies and work backwards, not turn it into a case about motive, but turn into a case more about the physical evidence.

Then why didn't they?

I think because they had an agenda, and the agenda was to try and show the public that the people of Los Angeles, the Los Angeles [district] attorney ... cares deeply about spousal abuse, and that was a mistake. There are many spousal abusers and very few murderers.

Before the trial, Jeffrey Toobin wrote an article that appeared in The New Yorker calling your strategy "monstrous," "an incendiary defense," and claiming that you were unfairly playing the "race card." Why?

The defense never had any choice but to put race in its proper perspective. If you had a witness who had made all kind of anti-Semitic comments about a Jewish defendant, and then was the key witness who had found all the evidence and everything turned on his credibility, of course you would raise the fact that he had been an anti-Semite and that he had made terrible statements about Jews. ...

You have somebody who had made terrible statements about African Americans. We didn't make up those statements. We didn't put those statements in his mouth. He said them. He denied them under oath. It's not improperly playing the race card to have the jury hear that evidence in helping assess its credibility. This case was in part about race, not framing an innocent person based on race, but a man who had had a long history -- Fuhrman -- of racism. And the jury was entitled to hear that in assessing his credibility.

But why was it called "monstrous"?

It's not monstrous; it's not wrong. In fact, had the defense not raised the issue of race, it could properly be accused of ineffective assistance of counsel.

Did the system work in the end?

The problem with this case is that the system worked, and it worked too well. It worked too well because it showed what the defense is capable of doing if they have the ability to use all of the constitutional protections that are given them by the Bill of Rights and by constitutional and other statutory rules. It showed what can happen if the defense has access to the best experts and good lawyers and experts in various other scientific areas. So it showed that the system can work very well, and that in fact the system will operate on the principle of better 10 guilty go free than one innocent be wrongly convicted.

And you know what? The public doesn't like the system. The public much prefers the old system, the old system in which the prosecution really doesn't have to prove the case beyond a reasonable doubt; the prosecution really doesn't have to abide by the Constitution; the prosecution really doesn't have to play fair with all the evidence. The public saw the system working, and they didn't like it.

What does it mean for us for the future?

We have a system. The system was given to us by the founding fathers of the Constitution more than 200 years ago, and the system has worked very well. It's produced the best legal system in the history of the world. And if you don't like a particular result, look yourself in the mirror and ask yourself, why is this result so troubling? Why isn't it as troubling when a white defendant is acquitted under circumstances where you might think he was guilty?

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posted oct. 4, 2005

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