The O.J. Verdict
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interviews: gerald uelmen
gerald uelmen

A member of the defense team, and a former dean and current professor of law at Santa Clara University in California, Uelmen's role was to prepare and argue all the defense motions regarding what evidence should be kept out of the trial and what should be admitted. He offers here a concise overview of the legal battles and the reasons why the public didn't see the same trial as did the jury. He also talks about the public backlash he personally felt following the verdict, the trial's ramifications on Los Angeles and the legal system, and why he uses the Simpson trial to teach the law. "I use it all the time, especially in teaching a course in evidence, because we litigated virtually every section of the California evidence code in that trial. And the evidentiary presentations and rulings were just models … for students to learn." This interview was conducted on April 7, 2005.

Can you talk about the preliminary hearing where the prosecution has to put the evidence out and let the defense cross-examine?

A preliminary hearing is a wonderful discovery tool for the defense. You really get some sense of what they have and how it's going to hold up in court and what the potential weaknesses are of the case. So we got [Detective] Mark Fuhrman on the stand and got to warm up a little in terms of cross-examining him before the trial even began.

And that's where the issue first came up of Fuhrman scaling the wall at O.J. Simpson's house?

Yes. A motion to suppress evidence is based on the Fourth Amendment exclusionary rule that if evidence is acquired in violation of the protection of privacy in the Fourth Amendment, then the court has to throw it out, can't use it. We actually filed our motion at the preliminary hearing, which is quite unusual. Usually you wait until later.

But this was a case where there were no reports; there were no written accounts of how they found the glove. So we wanted to pin them down. We wanted to get those officers on the stand and hear their explanation of how they found this evidence at a very early stage in the proceedings, before there was any opportunity to kind of get their stories together.

The theory of the motion to suppress was that they went into O.J.'s premises and conducted a search before they had any probable cause. Before they had a search warrant, they were already in there looking for evidence. As it turned out, their explanation was "We didn't go in there to look for evidence; we went in there to rescue any people who might be in danger, because we thought, well, there was a murder at his former wife's house; maybe the murderer came here and hurt some people," or whatever.

And so they go in, and they find Kato Kaelin living in the cabana by the swimming pool, and he says: "You know, O.J. left last night, but I heard this pounding on my wall. It felt like an earthquake." So they immediately went out and searched the area behind that wall, and that's when Fuhrman claims that he found the glove.

The amazing thing is, they arrived at O.J.'s house at 4:30 in the morning, and then, according to Fuhrman's testimony, he found the glove at about 7:30 in the morning. So our argument was, if your purpose really was not to look for evidence, but it was to rescue people who might be in danger, that would take about 10 minutes, and you were there for three hours, which suggests to us that your purpose in being there was to search for evidence.

The whole focus of  media coverage ... was 'Let us entertain you.' As a result, I don't think even after watching that trial, people really had a basic understanding of how the adversary system is supposed to operate

You wanted evidence thrown out?

The only thing that we were litigating at that point was the glove, whether that matching glove found behind O.J.'s house had been lawfully seized in a search pursuant to the Fourth Amendment.

I thought we presented a very compelling case that the glove should have been suppressed. And the ironic thing is that if the judge [Kathleen Kennedy-Powell] had granted that motion and thrown out the glove, I think the result in the O.J. case would have been different. Mark Fuhrman would have been out of the case. They had a pretty compelling case without the glove. The glove kind of opened the door to all of the questions about Mark Fuhrman's credibility and his racism. And when he then became such an important witness in the trial, that then opened the door to all of the problems that Mark Fuhrman created for their case. So ironically, if the judge had followed the law, and I think the law really required her to suppress that evidence --

What was your feeling during the trial? Did you think you would win or lose?

I was concerned right up until the end that we were going to have a hung jury. But when we got word that the jury had come back so quickly, I think we all felt quite confident that we were going to get a good result, that it would have taken them longer to find him guilty than to find him not guilty, just in terms of all of the questions they would have to answer and the forms they'd have to fill out.

Were you surprised?

Not actually. I thought we presented a very compelling case of reasonable doubt, and we had a great jury. And a lot of things went our way during that trial to give us confidence.

How do you rate the prosecution, its mistakes?

Hindsight is 20/20 vision, and it's easy to look back now and say, "Maybe if the prosecution hadn't tried the glove on in the courtroom --" I think the biggest mistake is maybe if they'd just gotten Fuhrman completely out of the case, we might have seen a different outcome. This was a close case. There was a lot of things that could have pushed it one way or the other.

Did the television audience see the same trial as the jury?

You didn't, and I think people need to be reminded of that. The trial the jury saw is not the trial that you saw on television. The people watching television actually saw more than the jury did. You saw all of the commentary. You saw all of the interviews of other people, stuff that we decided the jury shouldn't hear because it's not relevant evidence, or its prejudicial impact might outweigh its probative value. So the television audience was being affected by things that were not evidence in the trial.

And the jury saw some things that the television audience didn't see. I thought the jurors were enormously impressed by the jury view, by going to the scene, by walking into O.J.'s house. I know I was, the first time I walked into that house and saw that it was completely carpeted in white carpet, and the prosecution's trying to portray this blood-drenched murderer going up the steps to the bedroom and taking a shower. There wasn't one spot of blood found on any of the carpet anywhere. I think the jury was impressed when they saw the house and that it didn't fit the image that the prosecution was trying to present of how this thing happened.

Did you sense a backlash against the defense team from the public when the verdict came in?

I'm sure that the television audience that thought that the O.J. trial was a miscarriage of justice, that he should have been convicted, may have come away with a certain distrust of defense lawyers; that they're trying to pull the wool over your eyes. And defense lawyers, I think, had to overcome that, that sense of perhaps mistrust of a lawyer's function. ...

Does the public understand the role of the defense?

I think there's a vast level of misunderstanding of what the defense's role is. And I remember when the trial began, being a law professor, I was thinking, boy, this trial's going to be a wonderful opportunity to educate the American people and teach them how our justice system really operates. It took me about two weeks to realize that this wasn't about educating anybody; this was entertainment. And the whole focus of all of the media coverage wasn't "Let us inform you"; it was "Let us entertain you." And as a result, I don't think even after watching that trial, people really had a basic understanding of how the adversary system is supposed to operate and what role the lawyers are supposed to play.

The system worked the way it should.

I couldn't agree with you more. I think the O.J. trial was a vindication of the principle of reasonable doubt; that even if you think somebody probably did it, that's not good enough; that the prosecution has to bring evidence in and convince a jury beyond a reasonable doubt. And the role of the defense lawyer is to poke all the holes in that evidence that they can to show every conceivable weakness in the evidence, and then to present a defense in as strong a posture as possible and let the prosecution try to poke holes in the defense. And our theory is that from this clash of two opposing sides that are well prepared and have the resources to bring it all out, the truth will emerge, and you'll be in a better position to decide whether it's been proven beyond a reasonable doubt.

Why did the white audience refuse to accept the verdict?

I think there's a good deal of racism involved in the reactions to the verdict. When you see white audiences shocked and black audiences cheering, what you're seeing exposed is a predisposition. And when the trial didn't measure up to your predisposition of the way it should come out, you're disappointed, and if it comes out the way you think it should have come out, you're standing up and cheering.

But we have to recognize that is a predisposition; that is a bias. And where does that bias come from? When the bias is all one way in the white audience and the other way in the black audience, there's something underlying this predisposition that I think says a lot about our justice system.

About our justice system or race relations?

Well, our justice system reflects the extent to which we still are victims of our history in this country.

Did you feel any backlash personally?

I certainly got my share of hate mail, even from alumni of this law school. That really shocked me. I mean, you would think, God, if anybody should understand what the role of the defense lawyer is and how our system is supposed to operate, it should be somebody who went to law school.

What did they say?

Saying: "How can you hold your head up? You should be ashamed of what you did." And I didn't feel any shame. ... I felt quite proud of what I did.

You use the trial to teach the law.

I was informed a couple years ago that my students actually had a betting pool: How many minutes will elapse before Uelmen mentions the O.J. trial? And I have to confess that I use it all the time, especially in teaching a course in evidence, because we litigated virtually every section of the California evidence code in that trial. And the evidentiary presentations and rulings were just models, I think, for students to understand some of the tactical ramifications and just provide great illustrations to learn the California evidence code.

I actually put a book together based on the pleadings in the case, the arguments presented by the lawyers, the rulings presented by the judge, and then some of the reaction from some of the books that were published later to give students an overview of how evidence rules are used tactically in the course of a trial.

Could the trial have gone either way?

Oh, absolutely. This was a case where the lawyers were going to make a difference. I think it was Edward Bennett Williams who once said that most trials in America are going to come out the same way regardless of what the lawyers do; it's just 20 percent of the trials where what the lawyers do will make a difference. This is one of those cases I think where going in, we knew we could win this case. And I think the prosecution knew going in that they could lose this case.

Because?

Because there were lots of credibility issues; there were lots of judgment calls about how evidence would be used. It was just that kind of case that it was going to be a close call.

Because of the DNA evidence, people said he was guilty.

We realized going in that there were people who would say, "It's all over; the DNA tests are conclusive." And we knew that we weren't going to be able to keep the DNA evidence out. So our whole approach was, you can't trust DNA test results if you had incompetent people collecting the evidence and preserving the evidence; that the evidence is only as good as the people who collect it. So our focus had to be on doubts about the integrity of the evidence-collection process. And I think there was lots to talk about. There [was] lots of sloppy handling that gave rise to a reasonable argument that there's nothing wrong with the science, but the science is only as good as the evidence you collect at the scene to analyze.

How would you have voted?

I would have had a reasonable doubt. I think the jury did exactly what they're supposed do to. They sized up the evidence, applying a reasonable-doubt standard.

Why didn't the jury deliberate longer?

They had sat through that trial for what, six months? And they're not sitting there like potted plants; they're thinking about evidence as it's presented. The closing arguments in that case were fabulous on both sides. I thought the prosecution presented the strengths of their case in a very compelling way in their closing arguments. And the closings arguments by the defense were stellar; they presented the reasonable doubts in a very compelling way. And the jury is sitting there, and they're listening to it all, and they're coming to a judgment. I think the jury just got into that jury room and the first thing they did was take a vote and realized, you know, there's not much to talk about here.

What was your jury strategy?

Well, the jury-consultant polling suggested that minority women had a different attitude about domestic violence than white women. This suggested to us that the conventional wisdom that you don't want women on a jury where one of the issues is domestic violence wasn't necessarily true; that we wouldn't necessarily have to be afraid that minority women would come in with an attitude prejudging or prejudiced against someone who was accused of domestic violence.

That turned out to be true.

Yes, it did.

Did things change in Los Angeles over the 10 years that have passed?

Oh, that's a real disappointment to me. I thought there were lots of lessons for LAPD and the L.A. County District Attorney's Office from this trial, but they both seem impervious to change. They both simply ducked their heads and went on about their business, doing things the way they had done them in the past. I'm sure there are still Mark Fuhrmans in the LAPD. The L.A. County District Attorney's Office still reacts to losing a high-profile case by bashing the jurors. It's like they haven't learned a thing. They're just going to keep on doing what they've been doing for all these years and do it the same way.

The law has changed.

Some of the law changed, yes. The legislature reacted to the public outcry over the verdict by changing the evidence code so that evidence that was kept out of the O.J. trial would be admitted in future trials. They enacted new hearsay exceptions. They enacted new rules with respect to domestic violence cases now that let everything in; all prior incidents are now going to be admissible. So the law has changed quite dramatically.

To the good?

It makes it easier to get convictions in these cases. I don't think it's necessarily to the good. I think the prior rules were the basis of many years of experience showing that, in fact, this kind of evidence would prejudice juries and would make it more difficult for them to assess guilt or innocence based on what happened in this case. I think we're seeing more and more trials where the trial isn't focusing on what happened in this case; the trial is focused on what kind of person is the defendant. Is he a bad person, and should we convict him and lock him up simply because he's a bad person, regardless of what he did in this case?

That's not good.

That's not good.

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posted oct. 4, 2005

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