The O.J. Verdict
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evaluating the defense's case

At its core the defense's victory came from focusing on the evidence found by Detective Mark Fuhrman -- and from Johnnie Cochran's courtroom "magic." Here, offering their perspectives on this and other aspects of the "Dream Team's" strategy, are Scott Turow, attorney and bestselling author; Jeffrey Toobin, author, The Run of His Life; Alan Dershowitz, member of the defense team; Peter Arenella, law professor, UCLA; Marc Watts, CNN corespondent for the trial; Donald Jones, law professor, University of Miami; and Gerald Uelmen, member of the defense team.

Peter Arenella

Peter Arenella, law professor at UCLA.

Peter Arenella

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… What was the defense's strategy?

The defense essentially was, you can't trust the messenger because the messenger has lied to you, and that means that you really can't trust the message they're presenting to you. So if you have police officers that are lying to you, that aren't testifying to you truthfully, there's no reason for you to believe that all of the physical evidence that they've collected and presented is as reliable as they suggest. There's reason for you to fear incompetence and worse: corruption of the physical evidence. And you certainly can't trust the story they're telling about Mr. Simpson. …

Marc Watts

Marc Watts, covered the Simpson trial as a correspondent for CNN.

Marc Watts

… I've covered a lot of trials. And in the first couple weeks of the trial, usually the prosecution is ahead because it's the prosecution's case -- the defense hasn't put on a case yet. In this case, from the get-go the defense team was out in front. They had the prosecution on its heels from day one of the preliminary hearing. From day one, the defense team controlled this case, they challenged every single piece of evidence the prosecution entered. They turned the O.J. Simpson murder trial into a trial of the Los Angeles police department and they put LAPD on trial and did a good job of it. …

Scott Turow

Scott Turow, attorney and author of bestselling legal thrillers, including Burden of Proof and Presumed Innocent.

Scott Turow

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… 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. …

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.

Donald Jones

Donald Jones, law professor at the University of Miami.

Donald Jones

… I think that the dream team in some instances rose to the level of which they had been hyped. Johnnie Cochran was a master who we'll remember for the next twenty years -- "If it doesn't fit, you must acquit." I think that [Peter] Neufeld and Barry Scheck did a masterful job in handling the DNA evidence. They outclassed the prosecution; they did exactly what the defense is supposed to do. The prosecution presented a case with a lot of holes and they found each one. And the jury responded to that.

I think that the idea that the defense had played the race card and they dealt it from the bottom of the deck, I'm hurt by that because I think it was the prosecution who played the race card and not the other way around. …

Jeffrey Toobin

Jeffrey Toobin, staff writer for The New Yorker and author of The Run of His Life.

Jeffrey Toobin

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… 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. …

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. …

Gerald Uelmen

Gerald Uelmen, member of the Simpson defense team and professor at Santa Clara University School of Law.

Gerald Uelmen

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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 were lots of sloppy handling that gave rise to a reasonable argument that this stuff -- you know, there's nothing wrong with the science, but the science is only as good as the evidence you collect at the scene to analyze.

Alan Dershowitz

Alan Dershowitz, member of the Simpson defense team and Harvard law professor.

ALAN DERSHOWITZ

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… 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. …

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. …

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posted oct. 4, 2005

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