The O.J. Verdict
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scott turow
scott turow

Scott Turow is an attorney and author of many bestselling legal thrillers, including Burden of Proof and Presumed Innocent. Here, he discusses some of the twists and turns in the case, whether justice was done, and why, if he were a law professor teaching the O.J. trial in a course, he would have a lot to draw on -- from America's racial divide and the place of law in the culture, to basic lessons in policing and what not to do in the courtroom. Assessing the Simpson case's legacy, Turow says one of them is that it left Americans with a far more complex understanding of what happens in a criminal courtroom. "It's not just guilty-as-hell defendant who walks out the door because he's got some shyster lawyer who walks him through a loophole. In point of fact, you've got lying cops and bumbling prosecutors and confused judges as well as good defense lawyers who raise a lot of questions, many of them legitimate." This interview was conducted on April 26, 2005.

What do you make of the O.J. trial? How would you sum it up?

Ten years after the fact, I would say that the Simpson verdict and the Simpson trial enhanced Americans' understanding of the criminal process, because it showed that what happens in a criminal courtroom is far more complicated than the kind of simple-minded cartoon that frankly the American right had been presenting of the criminal justice system for years; namely, a bunch of clearly guilty defendants who get away because of liberal judges.

In point of fact, what happened in the Simpson case, if you were going to blame anybody for the fact that O.J. got away, you would blame all kinds of systemic defects. You had police who did things the way they usually did things, and that didn't work; one of them was ultimately convicted of perjury. You had prosecutors who sort of got lost in the bright lights that were outside waiting for them to make their statement. You had a judge who basically lost his way in the same fashion. You had a whole complex of human fallacies that were on parade there that contributed to a verdict which I would agree is not consistent with the evidence.

But in point of fact, that's what happens in courtrooms all the time. They're not truth machines that work infallibly. They are subject to the same kinds of winds that make our lives so random and unpredictable.

But many people said the system didn't work in this case.

Well, yes, in my judgment as a trial lawyer, it looked to me like the state had enough evidence to convict him. But it's a far more complicated question when you say the system doesn't work.

And it's hard to explain this briefly, but basically, we have a jury system in order to protect individual citizens from state oppression. That's why we have juries going all the way back to the Magna Carta [of 1215], when the jury system was first created. And I think that the Simpson jury was trying to protect an individual from what many of those jurors perceived as state overreaching -- lying cops, prosecutors who appeared to lose their way -- and that's what they were responding to.

What were the prosecution's big mistakes?

I hate second-guessing other lawyers, because I know that I've tried and lost cases, and somebody could sit there and say, "Should have done it this way," and they'd have been right. It's clear to me in retrospect that the Simpson prosecutors Marcia Clark, Christopher Darden, spent too long trying their case. The case, for example, against [Oklahoma City bomber] Timothy McVeigh that was tried just a little bit later was probably more complex and yet was put in by those prosecutors in six weeks.

I think  the Simpson jury was trying to protect an individual from what many of those jurors perceived as state overreaching -- lying cops, prosecutors who appeared to lose their way --and that's what they were responding to.

They took six months to present the evidence against O.J. Simpson. And when it takes you six months to make your case, the jury is going to be left with either one of two impressions: Either your evidence is overwhelming, or in point of fact it's not, and you're laboring day by day to make it appear to be better than it is. And unfortunately in this case, it was the latter impression that the jury got left with.

Why was the Simpson trial such a huge event across the country?

Because it combined so many American obsessions. Simpson himself was a complex figure. He was a poor African American raised in the poorest part of San Francisco. He went on to great success as a college athlete, winner of the Heisman Trophy, then broke the rushing records in the National Football League, the greatest running back in history. And not only did he have that kind of success as an athlete, but he then went on to become an actor, a spokesman for a national car rental company. Everybody loved him; he was gorgeous to look at. ...

And so it combines America's obsession with celebrity, movie stars, star athletes, the beautiful and race, all of these things that are sort of deep at the root of American fantasies about our lives.

So all of that was bundled up in O.J. And then you come in with the familiar theme that "O, how the mighty art fallen." And of course envy and resentment are an inevitable part of life. Plus there's jealousy, intrigue with the police department.

I always say when I'm asked about the Simpson case that I would have loved to have made it up. It would have been a really successful novel.

It is obvious from reading your books that you are very familiar with the way the police work. What are your thoughts on how the LAPD performed in this investigation?

Again, it's Monday morning quarterbacking, but since I said it while it was going on, I'll say it again a decade later.

Los Angeles for many years had operated with a police department that was far smaller than other police departments had in areas of comparable or larger size, New York and Chicago being the most obvious examples. Now, when you have a police department that's only a portion of the size of other major cities, anybody in law enforcement will tell you that the reason they're able to quell crime is pretty simple, and that's because they break the rules all the time, and they really operate in areas where crime occurs frequently with disregard to the law. They break heads; they break rules. They break into houses. They rule by terror. And again, after the fact, we now know that all of the horrible events that were part of the Rampart scandal in Los Angeles were going on at this time.

So it's not very hard to understand that the suspicion of the L.A. police department in the minority community was enormous, and I think that the only way to have won that case once decisions were made that led to having an almost exclusively minority jury was to be able to stand in front of that jury and say: "I know what you've heard about the L.A. police; I've heard it, too. But I'm going to show you that's not the case here; that's not how we're prosecuting this case. Everything's on the up-and-up."

Instead they went in the complete opposite direction. They did it the way they've always done it. [Detectives Philip] Vannatter and [Mark] Fuhrman climbed over the wall of the Simpson home or compound in Brentwood and went in there. And again, it's obvious why they went in there: They wanted to question O.J. Simpson before he got a lawyer. Then they get on the witness stand when [defense attorney] Robert Shapiro moved to suppress the evidence they gained by entering the house and testified that they'd gone in there, because with Nicole Simpson dead several blocks away, they feared for the safety of somebody else inside the house. Now, there's no causal connection between those two things; that's rank speculation, not to mention the fact that it's obvious horse hockey.

And yet the prosecutors put them on the stand to say that, and the municipal court judge who heard that testimony acted as if she believed it. And I am one who said at that point, "They've lost, they've lost." Now, did I know that Fuhrman was ultimately going to get convicted of perjury? No, I didn't expect that, but it was obvious to me that they were on the road to hell.

Were they really that tone-deaf -- deaf to the racial issue?

I don't think that they were insensitive. I mean, Christopher Darden's a black man and certainly knows more about African American experience firsthand than I do, but they proceeded on the assumption that it's always worked and it will continue to work in this case. And look, one of the things that always amused me about NYPD Blue is it was a very successful TV show; people thought of those cops as heroes, and they turned around and hit suspects all the time. People don't expect cops to be choirboys. So the prosecutors in L.A. figured, well, they know these cops are out there trying to get the right guy, and that's all they really care about, and all we have to show them is it's the right guy.

The problem, of course, when you're talking about the minority community is -- as an African American juror explained to me years ago, after holding out for days in a case -- when you're talking about African American males, there are not all that many heroes in the African American community. And it wasn't just that Simpson was a star athlete; he had this wonderful persona that pervaded many worlds. He was seen as bright and articulate, charming, funny. And they [the jury] had to give that up by saying that he's a criminal. And certainly the L.A. County P.D., the DA's office I don't think took proper account of what a big gulp that would be for any African American juror.

Why did the prosecution use Detective Mark Fuhrman? Many people, even some of the defense lawyers, say that the state would have won if they just left Fuhrman out of the case, but they didn't.

In retrospect, the question of how everything happened is the usual comedy of errors. And I don't say that in a way to criticize either the L.A. police or the L.A. County DA's Office. As I recall the testimony, Fuhrman kind of wormed his way into the case that wasn't even properly his. But on the other hand, he was knowledgeable, and he was a very successful detective.

But one of the things that every law student ought to be taught about the Simpson case is that initial decisions can carry enormous consequences, because once Fuhrman goes into the Simpson house and is involved in taking those statements from O.J., he's in the case. If you're going to use the statements or the evidence that's gleaned as a result, he's in your case. He's your case.

And the same thing happened with the decision to indict Simpson by grand jury, which meant that the case had to be taken from the suburbs to downtown. And basically the decision is -- and Gil Garcetti claims that he made this decision consciously, and probably did -- you're going from a largely white, suburban jury to an inner-city jury by taking the case downtown, to indict it in front of the grand jury.

Now, Garcetti has said he had the [Rodney] King riots in mind. He didn't think that he could convict somebody of the stature of O.J. Simpson in front of a white jury, and so he decided to make sure that he would have an inner-city jury. That's what he says, and it's quite possible that that was his thought process.

If you were a law professor and had to teach a course on the O.J. trial and verdict, could you do it? How would you present it?

Well, if I was a law professor, or frankly a professor of American culture, I could probably teach an entire semester about the O.J. Simpson case -- the way sometimes one book of James Joyce's will make for an entire semester course.

There are lessons about the law. There are lessons about policing. There are certainly lessons about what's effective and not effective in a courtroom. You will never have a better example of the courtroom maxim of "Never ask a question to which you do not know the answer." You'll never have a better demonstration of it than Christopher Darden's inexperienced suggestion that O.J. Simpson should put on a glove, which by the prosecution's own theory had been blood-soaked and thus likely to have shrunk. And of course Simpson couldn't get it on his hand, leading to Johnnie Cochran's famous doggerel that "If it doesn't fit, you must acquit."

There are, of course, lessons about American culture, about the profound difference in perceptions between minorities and the white majority. There are lessons about the place of law in American culture when you consider the virtual circus that the Simpson case became. And there are lessons about the way the legal system operates and the way it's perceived to operate that emanate from the Simpson case.

Wasn't the Simpson case an example of the best the system can offer? In other words, it had the best of lawyers on both sides, almost equal resources and this is what the system prescribes. Each side puts forth their arguments and the jury decides.

It's hard to say that the Simpson case was the best the system could offer, because there were ways that the system really fell on its face. Again, I wouldn't trade places with Judge [Lance] Ito, but I don't think he rose to it. He clearly blew one way and then, having realized that he'd gone too far in one direction, deliberately swung, at least to my view, deliberately swung too far the other way, hoping to make up for it. And he got caught, therefore, in this kind of careening in his courtroom decisions.

But in terms of the resources each side had to draw on? It happens so rarely that both sides have equal resources. Usually the prosecution has far more money than the defense. This time they both sunk millions into the case. So for once, the adversary system had a level playing field.

There certainly was enormous resources on both sides, both in terms of what the L.A. County DA's Office put into it, and far more significantly, of course, it demonstrated to everybody across the country that justice is much different for criminal defendants if you're rich as opposed to poor.

O.J. Simpson assembled what was called the "dream team," and frankly, subsequent experience in American courtrooms has gone to show that he indeed had the dream team. That was no fluke with Johnnie Cochran. Johnnie Cochran was one of the great American trial lawyers of his era, a remarkably intelligent guy who just knew the sort of generative grammar of juries automatically. Barry Scheck was and remains the great dean of DNA evidence in the American bar. And O.J. had all those people. He had F. Lee Bailey, who was certainly the most famous trial lawyer of the late '50s and early '60s. And Lee Bailey had some pretty good moments in that courtroom again.

I'm sure they didn't all get along at moments, but I think Robert Shapiro gets some credit for making them function to whatever extent they did. So it was an amazing demonstration of what you can buy when you can buy everything in terms of a defense.

But when they won, people called foul.

People were upset that O.J. got away. And they were upset racially because the white people in the country saw the case so differently from most African Americans. And they were also upset because they could see that being rich makes a big difference in terms of the results in the courtroom. But the latter point, that justice is different for the rich as opposed to the poor, is something that cuts against the grain of popular expectations, because it's also the case that most criminal defendants in the country are poor. And so it's easy to believe that if wealth can pervert results this way, so at the other extreme can poverty; that if you don't have any kind of representation or any kind of adequate counsel, it's quite easy to believe that the innocent can be convicted just as the guilty can be acquitted.

Do you think people connect that? Is this the way they think of it?

I think that the Simpson case -- one of its less commented-upon legacies has been to leave the American public with a much more complex understanding of what happens in a criminal courtroom.

It's not just guilty-as-hell defendant who walks out the door because he's got some shyster lawyer who walks him through a loophole. In point of fact, you've got lying cops and bumbling prosecutors and confused judges as well as good defense lawyers who raise a lot of questions, many of them legitimate.

For example, I'm one of those people who thinks that in light of Fuhrman's track record on the witness stand, it is certainly not an unreasonable hypothesis to think that that bloody glove which was found outside the house, maybe that glove wasn't dropped there by O.J. Simpson, but somebody perhaps who had found it at the scene of the crime and decided to bring it there and, in the parlance of some of my friends, Chicago police officers, "... just tighten up the case a little bit." Now of course I'm not saying that's what happened, but --

It could have happened.

It could have happened. And I think people watching that suddenly came to realize what the consequences are when the cops walk a little bit over the line. All of a sudden you can't believe in anything. And that was a legitimate doubt that existed in this case without regard to race or wealth. It was hard to know exactly what had happened in connection with a lot of that evidence.

Were there alternatives to putting detectives Vannatter and Fuhrman on the stand?

There were alternatives to putting Vannatter and Fuhrman on the witness stand to tell what struck me as a fairy tale about why they went into the house. And the alternative was to say: "We're not going to do that. We'll live without that evidence. We'll rest our case on what the DNA analysis shows, and a lot of the extrinsic circumstances" -- which, quite frankly, were pretty compelling in and of themselves.

Or they could have taken advantage of something called the inevitable discovery doctrine and tried to argue that the evidence was illegally obtained but would have been discovered inevitably anyway and therefore it was admissible. Either one of those approaches I think -- and again, looking backwards -- would have given the DA's office the opportunity to look at the minority community both outside the courtroom and more importantly inside the courtroom in the jury box and say: "This isn't business as usual; this isn't sweeping police misconduct under the rug; this isn't pretending that the police don't break the rules. This is acknowledging the police break the rules and saying we're not going to have any benefit from it. We're going to try this case straight up, inside the white lines, and we're going to win anyway."

But that's not what they did of course.

That office didn't have a lot of experience doing it that way, because the L.A. police department was so far out of control that if you said we're not going to proceed with cases where there's been police misconduct or with evidence gathered by police misconduct, you might have gone to court with nothing but empty envelopes.

But it is done differently in a lot of other places. The rules are followed, and defendants are convicted all the time.

Did anything change following the O.J. case?

This is heresy for somebody who still works now and then as a criminal defense lawyer, but I do think that there has been for many, many reasons -- Simpson being one of them -- a slow change in the behavior of big-city police departments all over the country, and a change for the better. Certainly seeing Mark Fuhrman end up prosecuted and without a job had to be an important example to police officers. I'm sure they would accept it with a good deal of bitterness, because I think to a working cop, the example is you stick your neck out on a really important case and guess what? If the case is big enough, if you look over your shoulder, there's nobody behind you.

But whether you take it with bitterness or not, it's an object lesson in what happens when you get too far across the line. And you have to follow the rules, because maybe nobody else will get your back.

Fuhrman is doing rather well now.

Well, the system operated. I think he went through what was for him a really terrible time. He's a cop who was prosecuted and pled, as I recall the events, and left his department in disgrace, and that's a big price. The fact that Mark Fuhrman is a talented person and has gone on to do other things is not something to be held against him -- just like I've been critical of Martha Stewart, but I don't think that she should be exiled, and she's got every right to resume her life and have the same success she had before. Same thing with Fuhrman.

Some critics have said the defense crossed a lot of lines in their conduct, tactics. Do you agree?

Well, there was a lot about the conduct of the defense lawyers that was obviously lamentable. And to some extent, there was a circus without a ringmaster because Judge Ito, for whatever reason, sort of disabled himself from keeping control over things.

I can be very critical of some of the things the defense lawyers did. Some of the stuff that F. Lee Bailey did in particular didn't sit well with me. But this is the culture of criminal courtrooms, where the fundamental ethic for a criminal defense lawyer in most big-city courtrooms is "I will do anything I can to get my client off, and it's up to the system to restrain me." And when that system of restraint was relaxed, the defense lawyers ran wild.

Now, I don't believe in that model. I think lawyers have a fidelity to the system itself that's always got to be with them, and indeed most of the defense lawyers I know observe that.

Did the O.J. defense cross that line?

There were some examples where I thought lines had been crossed, yes. But was it anywhere near as egregious as what went on in terms of the testimony that was offered from Vannatter and Fuhrman? Not by my lights. Not by my lights.

A couple of lawyers told us that they think it was a black eye for the Simpson defense. What do you think?

Well, trial lawyers have this saying that they use to excuse themselves when they step over the line. It happens in almost every case, in every city. And trial lawyers always talk about what they did "in the heat of the battle." And a lot of stuff gets forgiven as being in the heat of the battle, and I would say that generally speaking, the stuff I would criticize the defense lawyers for falls within the penumbra of the heat of the battle.

Could this kind of case happen again?

I don't think that America could experience a case like O.J. in exactly the same way. I don't think you can step in the same river twice. The lessons of the Simpson case would be with us. And again, Americans are much more sophisticated, as I am inclined to maintain, about the legal process, so they might not have the same fascination with it.

But even though the intensity level might not be there, I guarantee you that a crime like the one O.J. was accused of, with a figure like O.J. at the center, is still going to garner an enormous amount of attention, even now. America's obsession with the law and the legal process is hardly over.

Do you agree with those who said the defense's use of race was incendiary?

Is it incendiary to accuse one of the main prosecution witnesses of being a racist when you in fact can prove that he's a racist and the defendant is black? I don't know a defense lawyer worth his salt who wouldn't use that evidence. If I've got Mark Fuhrman on tape using the "n" word, of course I'm going to use that. Look, the law has always recognized that evidence of bias is admissible. Evidence of bias is always admissible, so to call that an incendiary, monstrous defense is not something I'd agree with.

Yet somehow or other, it became one of the most important factors in the case, whoever introduced it. In the end, it did seem incendiary.

Well, I think accusing Fuhrman of racism -- and again, I'm not saying Mark Fuhrman is a racist; it's clear that he used certain language, but proving that -- you have to bear in mind the riots that had come in L.A. only a few years before. I think that's why this was perceived as being incendiary. But that's asking the defense lawyer to give up his client's defense in the interests of community well-being. And by the same logic you might plead guilty for the same reason, because it's better for everybody else in L.A. We don't have that kind of system. The criminal justice system is the absolute model of the state against a single individual, and that's the universe in which defense lawyers operate.

And should operate?

You mean could you fashion another model in which there's more obligation to a larger community? You certainly could. And other societies, by the way, operate their criminal justice system that way. But we've always had, going back to the [John] Lockean notions that created our country, a much different model, and we see the criminal justice system as the individual against the state.

Was the timing of this case a factor in attracting such intense public attention?

Yes. The American preoccupation with the law, which is certainly not past, was at its zenith in 1995. The 1980s, the late 1980s, had sort of begun to percolate up to public consciousness this enormous interest in the law. You had not just a book like my Presumed Innocent or the novels that John Grisham began to publish soon after, but L.A. Law was the number one-rated television show. There were movies. More significantly, we began the whole phenomenon of Court TV, of seeing trials, live trials on television, had begun by then. Court TV had been established.

And along comes Simpson with this vast star appeal, the many motifs of race and celebrity and sex and everything stewed together, and it was kind of a perfect storm of American interest and brought consciousness of the American obsession with the law to a new level. [It] made careers for people like my friends Jeff Toobin or Greta Van Susteren, who literally had their lives changed by the O.J. Simpson trial.

And looking back on it 10 years later, it still seems significant to you?

Again, I think the O.J. Simpson case was a watershed in American perception of the law. We are much franker about our discussion of the law. Every network now has a legal reporter, which frankly, few of them did. We have whole shows on the cable networks dedicated to the law. It has changed the American landscape.

Applications to law school zoomed up after the Simpson case, and they've never gone back down to the pre-Simpson levels. The Simpson case was an important event in the United States. It was something to change public consciousness, and I think it's well worth reflecting on 10 years later.

First and foremost, it taught everybody a lot about the way the criminal law operates. It taught everybody a lot about race and how enduringly different the experiences of African Americans and white Americans in particular are. It taught us about what it means to be a celebrity. And it taught people a lot of lessons firsthand about what good lawyers can do. Anybody who says they weren't fascinated watching Johnnie Cochran give that closing argument is lying. It was a magnificent performance, just a magnificent job by a defense lawyer. So it just taught people a lot.

Is O.J. important as a person now?

Well, I don't have any firsthand information, but from the news items that I look at, I think he leads a pretty sad life. For those who think he suffered no penalties at all, he certainly has been knocked off the podium he occupied. ...

Now, I would agree with those who would say if he was guilty, then he deserved penalties far worse. I certainly believe that, so I don't say justice was done. But certainly what happened to O.J. is not something that anybody would aspire to. ... He was destroyed by the trial. You can say that's unfair because he was acquitted, and certainly the model in this country is once [you're] acquitted, you're entitled to resume your life. O.J. hasn't been able to do that, because in the minds of at least white Americans -- the richest and most powerful segment of the society -- he's a murderer, and so his commercial value in any sense as a movie star, as a spokesperson, as a motivational speaker, that's all gone.

Did the civil trial change the public's perception on justice being done?

Well, it's hard for me, who understands the different burdens of proof between a criminal case and a civil case and the different evidentiary standards that get employed, it was hard for me to take the civil case seriously. But I do think for many people it was a sort of replay, and they were delighted by the outcome in which somebody finally said O.J. Simpson was liable for these deaths. So there was some expiation of the sin of the criminal process through the civil case.

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posted oct. 4, 2005

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