A former prosecutor and currently a staff writer for The New Yorker, Toobin secured a seat at the trial, spent two years covering the legal battles, and subsequently wrote a book about it, The Run of His Life. In this interview, he talks about the strategy of Simpson's legal team and how he himself became a controversial part of the story when he wrote an article suggesting that the defense team would stoop to using the "race card" in order to win. Here, Toobin offers his thoughts about the national obsession over the story, why the issue of race is ultimately the only thing that matters about the case, and why he believes the jury, while sincere, was dead wrong. "There was enough evidence in this case to convict O.J. Simpson 10 times over. There wasn't reasonable doubt in this case." This interview was conducted on April 22, 2005.
What was the O.J. trial about? Why were people so interested?
Well, one way of looking at the case is that it had everything that obsessed the American people: It had sex; it had race; it had Hollywood; it had sports; and the only eyewitness was a dog. So for the first time in American history, you had this strange convergence of so many factors, each one of which would have made the case interesting, but all of them together created this really earthquake of interest.
What kind of interest?
Well, first of all, O.J. Simpson was probably the most famous person ever accused of murder in the United States, so you start with that. Also, you had it in a setting that was really the most glamorous place in the United States -- Los Angeles, wealthy people. And then you had the element of mystery. It was not, whatever you think, an open-and-shut case. You had to sort of figure out what happened. And then what really pushed the case into the stratosphere of interest was the Bronco chase, the way he was arrested on national television in the middle of the NBA playoffs, watched by tens of millions of people.
The case was building as soon as the crime was uncovered, but once the Bronco chase happened, it was just a national obsession. Those of us who were involved kept saying, "Well, interest has peaked; it will start to go down now." And it never did. Something new always kept coming up that was even more bizarre and fascinating than what had gone forward, until you got to the point of the verdict, when essentially the whole country stopped. Long-distance phone calls dropped during that period. Trading on the stock exchange dropped. Everything simply stopped for the announcement of the verdict, because that's how much the country was interested.
Because it was a murder mystery?
What made the case to me so enduringly fascinating was that it was the perfect combination of high and low. It was a lowdown dirty murder mystery with celebrities, but it also tapped into very important things about the country. It was both interesting and important, and that's rare in any kind of story.
Important in what way?
To me what was always most important about the case was what it said about race in this country. This case turned into a serious examination of how black people and white people saw the world very differently, and it took this sordid, in itself not very significant case to reveal some very important things about the country.
Was it revealed during the trial or in the verdict?
I think throughout the trial the racial issues were percolating. Whether it was the question of where the trial should be or [Detective] Mark Fuhrman's role in the case and how the Los Angeles Police Department treated black people as opposed to white people, those issues were always there.
But then the verdict happened, and when the verdict happened, it was like the country was split in a way that we didn't even want to acknowledge how the country was split, because of those unforgettable pictures of black people cheering the verdict and white people recoiling in horror. People said, "Wow, something really is going on in this country," and that was significant.
You became part of the story.
A little bit. ... I had just started at The New Yorker when the story broke, and I had a legal background; I used to be a prosecutor. And Tina Brown called me -- she was my editor at the time. She said: "Look, just go to Los Angeles; cover the story. I don't know what you're going to write. You'll find something."
So the preliminary hearing had happened, and I knew some of the cast of characters, so I called my old law school criminal law professor, Alan Dershowitz, one of the lawyers in the case, and he said: "Go look into this cop Mark Fuhrman. There's something going on there." I didn't really know what to do, and I don't even know what he knew, but I went out to Los Angeles, and I thought, well, cops often have civil lawsuits against them; maybe he's lost some terrible lawsuit. So I went into the bowels of the superior court, and I looked up the name "Fuhrman." I didn't even know how to spell it; I had to call back to New York to get the spelling. And I found not what I expected.
There was a lawsuit that Fuhrman had filed, not that he had been the defendant in, and he had filed the lawsuit where he said he was such a racist that he could no longer function as an LAPD officer. He wanted a pension. Now, it tells you a lot about the LAPD that he lost his lawsuit, and they said, "No, you lose; go back to work as a cop."
So I thought this was interesting, and I took my news of the discovery of the lawsuit, and I basically snuck my way into Robert Shapiro's office, who was the lead lawyer for O.J. at the time, and I walked in there and I said, "Wow, that's some lawsuit." And he said: "Huh, you think that's bad? This cop was such a racist, we think he planted the glove at O.J.'s house."
Now, this was completely new, and I wrote a story for The New Yorker about it, with all the appropriate caveats, saying that there was no evidence really to support this theory, but the idea that the defense was going to claim a) that the main cop was a racist, and b) that he planted evidence against O.J. caused a sensation, and it made me a part of the case.
You wrote that the defense made an "incendiary" and "monstrous" allegation.
Well, it's monstrous if you're accusing a cop of trying to frame someone with murder, and he didn't do it. Now, of course the question was, did he do it? And that was played out throughout the trial, but it's certainly a monstrous allegation if there's no basis for it.
But they had to use it, didn't they?
Well, one of the many interesting issues raised by the O.J. case for me was the bounds of permissive advocacy by the defense. Clearly, every defendant is entitled to an aggressive defense in court, and if you look at something like how they defended against the DNA evidence, questioning the technology, I thought that was entirely appropriate.
But is it appropriate to play on the racial fears of Los Angeles? Is it appropriate to inject race into a case this way, to such a big part? I had questions about that. I'm not sure I ever resolved it. But I think that's a tough issue raised by this case.
But with regard to Los Angeles' history, is it a question of a "race card" or a "race deck"?
Well, the great advantage that the defense came with in this case was the history and context of the relationship between the LAPD and black people in Los Angeles. There was a general problem of police mistreatment of blacks. The question in this case was, was there specific mistreatment of O.J. Simpson by Mark Fuhrman and the LAPD? I eventually concluded absolutely not, but the defense very cleverly and very successfully exploited that history.
Why did you conclude that?
Because the evidence against Simpson was so overwhelming that it seemed both physically impossible and unnecessary for the cops to have tried to have framed O.J. Mark Fuhrman was a racist, but he didn't frame O.J. Simpson. Absolutely not. Never happened.
How can you be sure?
I'm totally sure, because the evidence dictated it. His shoeprints are at the scene; the blood of the victims is on the glove; there is blood in O.J.'s car. There's no framing going on here.
Did you buy any of the reasonable-doubt argument?
There was enough evidence in this case to convict O.J. Simpson 10 times over. There wasn't reasonable doubt in this case. There was no doubt in this case.
Why was he acquitted, if there was no reasonable doubt?
He was acquitted, I think, because the defense convinced the jury that Simpson was a victim of a racist conspiracy by the LAPD, and there were enough strands that the jury could grab onto to support that theory, but I thought that theory was completely bogus.
So as far as you saw it, was it finally a story about race?
I thought so. I thought the only reason we will care about this case 10 years after, 20 years after, is what it told us about race in this country. The rest is passing entertainment. But this case showed that when it came to law enforcement and belief in the police and the judicial system, black people and white people in 1995 lived in different countries, and that was something that the country really didn't want to be reminded of, but this case sure brought it home.
Did you know it all along that race was a big factor or did you find out once the verdict was announced?
Well, I think we all suspected; we weren't naive. We knew that racial issues still percolated in a serious way in this country, but I don't think anyone had any idea -- I certainly didn't -- the degree to which we were living in two countries. And this case just -- boom! -- told us that in the second that it took to react to the verdict.
Do you think blacks looked at the trial as well as whites and they saw two different trials?
I guess that's one way of putting it. Yes, I think white people saw a flawed but sincere investigation of a murder by one rich guy of his wealthy wife and her friend. And black people saw another black male being pursued by the white justice system in an unfair way, with lousy, unreliable evidence, and maybe he's guilty and maybe he's not, but the system shouldn't work this way, and he should be acquitted.
There are many people who say that because O.J. had enough money to counter the prosecution, which doesn't often happen, it was actually the system working at its best -- as it was supposed to.
Yes, there were aspects of the case that did show the justice system at its best. Here were two sides with relatively equal resources, with the opportunity to really make their case in a sustained way, and that was positive.
I thought there was a lot about the case that showed the system and its flaws. This case went on for way too long. The judge did not keep control of the courtroom. Many of the witnesses were preening and showing off for the cameras rather than just testifying as they wanted. And I think the jury, rather than reacting to the evidence itself, was working more at sending a message about the system. And I don't think any of those things were good.
Shouldn't there have been a message sent to the LAPD where there were lies and perjury?
One of the interesting issues raised by this trial is sort of, what's the purpose of a trial? Do we simply adjudicate one person's faith, or do we use trials to send a message about how the police do their job? I thought it was the former. The jury apparently thought it was the latter.
I felt it was the latter.
I think the whole idea that the jury sent a message is an inappropriate use of their function and also not successful, because they think they're sending a message, and the message received by most white people, at least, is "The jury's a bunch of morons, and they let a murderer get away with it, and doesn't the system stink?" Now, that's not successful, in my view, as a way of sending a message.
But why shouldn't police be sent a message that lying is not tolerated?
Well, Mark Fuhrman was prosecuted for perjury in this case, which is pretty darn unusual and, in my view, entirely appropriate. But letting O.J. Simpson walk out the door after he slaughtered those two people in cold blood, that's a terrible price to pay and totally wrong, in my view.
There are law school professors who use the Simpson trial to teach courses in evidence. We in fact filmed a class last month where the law students still found that there was reasonable doubt .
Oh, I think that's a bunch of crap. I sat through that trial; I sat through the civil trial. There was so much evidence against him.
The great genius of the defense was they would fixate on particular parts of the evidence and question it. But what about all the evidence together? Who had a motive to kill these people? Who had size 11 shoes? Who owned this precise exotic pair of shoes that happened to leave the footprints in this courtyard? Whose time was unaccounted for? Whose blood was on this glove? Who had a cut on his hand the next day? I mean, who's kidding whom here?
So as far as you are concerned, no reasonable doubt?
Not only don't I think there's reasonable doubt in this case, I don't think there's any doubt. I just don't think there's a shred of doubt that O.J. Simpson killed these people.
Do you think the jury thought there was reasonable doubt?
Well, obviously they did, yeah. That's what their verdict said.
Reasonable doubt or, as some people said, "We're not going to convict one of our own"?
Look, I think if you asked the jury why they reached their verdict, as I did, they'll say, "Well, there was reasonable doubt." I think the reason they thought there was reasonable doubt was it fit into their conceptions of how the LAPD acts towards black people, which I think is true in general. I think it is not true specifically in the case of O.J. Simpson. But I believe the jury was sincere. I don't think they were faking. But I think they're just wrong.
What if they were a white jury?
He would have been convicted, period. A white jury would have convicted him in almost as little time as a black jury acquitted him. And it pains me to say that, because I don't like to think that we live in that kind of country, but this case told me we do.
And the civil case, though the evidence was somewhat different and the standard of proof was different, the mostly white jury in that case had just about as easy a time with it as the black jury did with the criminal case.
Has anything changed?
One thing that's changed is DNA evidence is now a permanent part of our legal system, in a good way. It frees the innocent and convicts the guilty. And [defense attorneys] Barry Scheck and Peter Neufeld have used their fame to make that happen.
Now, on the bigger question of "Are the country's attitudes about race different than we saw on that October afternoon in 1995?," I don't know. I hope so -- kind of doubt it. We have not had a national Rorschach test about race in this way since October 1995, so it's hard to establish any sort of control. I've seen no great evidence of change.
People criticize the media frenzy over this case, how the trial was so intensely promoted on TV. Do you think the coverage was in proportion to the importance of the case?
I think trials are inherently dramatic and interesting and are always going to be part of the news. Do I think that the Scott Peterson case was a serious national issue? No. Do I think that the Kobe Bryant case raised very interesting issues about the nature of rape law and how men and women deal with each other? Absolutely. And these cases will always have some sleaze, and they'll always raise interesting issues.
Do they have to have sleaze?
Well, yeah, sure. But there is always sleaze in the news. And you know what? The news is always a combination of things that are interesting and things that are important. What is was so amazing about O.J. is that it became both.
It won't be forgotten.
If you walk down any street in America and asked them who Kato Kaelin is, who Al Cowlings is, who Johnnie Cochran is, they'll know. And that's not going to change 10 years from now either.
Is O.J. Simpson himself of any importance nowadays?
One of the interesting things about the passage of 10 years is that as the phenomenon has had this life -- [and it] really is a significant part now of American history -- the man himself has disappeared. Who cares what O.J. Simpson thinks or does or says? It's what the case represented; it's not the person.
But what it represented is not really clear, is it?
Well, obviously I have a theory about what it represented. It's clear to me, but it's not clear to everybody else. The case represented a referendum on what we think about race in 1995. That's an important subject. That's been an important subject in all of American history. That's important. O.J. Simpson himself is not important, as he has demonstrated in his very boring and trivial life over the past 10 years.
What made the theory so incendiary was it wasn't simply the "monstrous" allegation, if false, that a cop had framed an innocent man. It was, in this city where people had just rioted because of the verdict in the Rodney King case, it was an attempt by the defense to inject the exact same kind of issues with -- who knew? -- potentially the same consequences.
Even if it was true?
If the theory was true, if Fuhrman really did frame Simpson, of course it was justified to raise it. That's what defense attorneys are supposed to do. But if it wasn't true, if it was just injected into the legal system, in the body politic at a time when the exact same issue had caused riots in Los Angeles after the Rodney King verdict, then I think it's a lot more dubious, what the defense team had done.
What if you were the defense? What would you have done?
I have struggled with what the appropriate ethics of the defense were in this case. Clearly what they did with the DNA evidence was entirely appropriate, but how much do you press on the Fuhrman story? And do you raise that he had said false things in the past? Absolutely. But do you construct a public relations offensive to the society as a whole, using race at its core? That's a lot more dubious to me, I'm not sure that's what ethical defense attorneys do. But I don't know.
What would you say is the role of the defense?
The role of the defense is to be an advocate for their client, regardless of whether he did it or not, within the bounds of the law. The question to me is, is using race, the way they did, within the bounds of the law? Certainly it's not illegal, but I have some questions about the ethics of it.
What's been the impact of the O.J. Simpson trial on trials, on juries?
Cameras in the courtroom is a great idea. The problem is, in the most famous example, it was a terrible idea. Everything people say about cameras in the courtroom -- falsely, in my view, that it affects the witnesses; that it affects the outcome; that it lengthens the trial -- unfortunately, it was true in the Simpson case. And there's been this fallout where cameras have been banned in most places now when, in fact, it would be good for the system and the society if cameras were more available, not less.
Any other impacts?
One of the things I do for a living is go to trials and go to talk to people about trials, and it's always the first case that comes up. It is the immediate point of reference for everybody about the legal system. ...
Jurors ask a judge, "Is this going to be a long trial like O.J.?" If it's a woman prosecutor, it's like, "Oh, looks like Marcia Clark. " ... A well-dressed attorney, they say, "Oh, you dress like Johnnie Cochran."
Everybody's immediate point of reference is the Simpson case, and no one ever has to explain their references. Everybody knows what you're talking about.
How did you rate the prosecution?
The prosecution was a cascade of errors and mistakes. But what we learned with the verdict is it wouldn't have made any difference if they'd done a good job either, because this jury was never going to convict.