The O.J. Verdict
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what the jury saw

Millions of Americans were riveted watching the televised Simpson trial. But did they see the same trial as did the jury? Discussing this and other questions surrounding the Simpson jury and their verdict, are Scott Turow, attorney and bestselling author; Gerald Uelmen, member of the defense team; Alan Dershowitz, member of the defense team; Charles J. Ogletree Jr., Harvard law professor; Jeffrey Toobin, author, The Run of His Life; Peter Arenella, law professor, UCLA; and Donald Jones, law professor, University of Miami.

Alan Dershowitz

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

ALAN DERSHOWITZ

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… 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. ...

Scott Turow

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

Scott Turow

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… 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.

… 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.

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. …

Donald Jones

Donald Jones, law professor at the University of Miami School of Law.

Donald Jones

… It just seems to me that you want a jury in a democracy that questions what the government says, that is skeptical. And I think that the experience of being a minority is the experience of being forced to question what the government does -- of seeing the mistakes, of seeing the bias. And because they have this attitude, they are disposed to think in terms of reasonable doubt in a way that's much fresher and much crisper than they could if they hadn't had those experiences as minorities.

… I think that there were aspects of the case that could only be understood if you had some sensitivity to race. In other words, how is it possible that blood could get from a place, that was supposed to be secure, into O.J. Simpson's car, unless you're willing to believe that the police are capable of misconduct. And it's their experience which opens them to that possibility, which gives them an open mind. I think that many people who are white would just never have believed it and would never have considered the possibility.

… I think that there was a lot of jury bashing that went on. People felt that the jury, faced with overwhelming evidence, simply nullified the verdict as revenge for perhaps a hundred years of mistreatment. I think that does a disservice to the jury. And it misunderstands just the tremendous number of holes that were in the prosecution's case, which, part of it was incompetence and part of it was simply that this was a mystery resolved by a rush to judgment. Had they thoroughly investigated the case, maybe it would have come out a different way. …

Jeffrey Toobin

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

Jeffrey Toobin

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… 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. …

Charles J. Ogletree Jr

Charles J. Ogletree Jr., Harvard law professor and director of Harvard's Houston Institute for Race & Justice.

Charles J. Ogletree Jr.

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… Why do you think the jury was able to come to a decision so quickly?

When you watch the case, the doubts about the case emerged as the evidence was presented. So the jury could have deliberated for days, but what were they deliberating about? They had Mark Fuhrman, which raised reasonable doubt. They had Dr. Henry Lee, which raised a reasonable doubt. They had the glove that didn't fit, which raised a reasonable doubt. They had witnesses who were contradicting themselves, which raised a reasonable doubt. And the point was, who in this room is convinced right now that he's guilty?

They can't make up evidence; they can't assume evidence. They have to evaluate the evidence that was presented to them, and having done that, having seen the examination by [defense attorney] Barry Scheck of the DNA evidence, having seen the cross-examination by Johnnie Cochran of police witnesses, having seen the cross-examination of Mark Fuhrman by F. Lee Bailey, they had plenty of doubt about what happened, and all they had to do was to go in and take a poll. And I think it wasn't a hard job to do. …

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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…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. …

Peter Arenella

Peter Arenella, law professor at UCLA.

Peter Arenella

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…What do you think actually happened inside the jury deliberation?

In terms of the actual jury verdict, you have a case in which the jurors couldn't trust the messenger, and therefore they had a great deal of trouble believing in the message. Police lied from the beginning of this case to the end, and I'm not talking just about Detective [Mark] Fuhrman lying on the stand about making racist remarks. This case started with a preliminary hearing in which the lead detective made an obvious lie about why they entered Mr. Simpson's property -- pretending he wasn't a suspect -- when the average citizen probably appreciates that in a domestic murder case, the surviving spouse has to be a suspect [and] has to be eliminated.

And yet the police lied about their motivation for a warrantless entry on to Mr. Simpson's property, and they stuck with that lie throughout the trial. So when you have police officers who are lying on the stand, thinking they need to [invoke] Fourth Amendment purposes, and then their stories have to conform with their initial lies, you have a credibility problem. And the jurors correctly saw that some of the police were not testifying honestly. That meant, unfortunately, that when police officers and criminalists and others were presenting perhaps quite reliable evidence, physical evidence of guilt, it was easy for jurors to dismiss the probative significance of some of that evidence because they didn't trust the messenger. …

Is that what you think the jury came to believe?

Well, there really were three elements to this case. One was the timeline; one was the story of motive -- why Mr. Simpson would kill his wife; and finally, there was the matter of physical evidence linking him to the murders. The prosecution's most compelling case concerned the physical evidence. Unfortunately, the DNA evidence was extremely hard to follow. Indeed, most of the media slept through the dog days of the trial dealing with DNA testimony.

The jurors themselves did a terrific job trying to pay attention, but the prosecution's best evidence was the evidence that was most hard to understand [and] the most easily attacked by the defense. And the defense, especially Barry Scheck, did a terrific job of giving the jury little lifeboats to understand some of the evidence, metaphors like "garbage in, garbage out." And that allowed the jury, if it couldn't follow the technical aspects of the challenges to the evidence, to think about the problem very simplistically: If the police screwed up in gathering the evidence, if there were problems in collection, perhaps that meant that the evidentiary results were corrupted. Only a real expert in DNA evidence could discriminate between legitimate challenges to DNA evidence in that case and challenges that were based on speculation or exaggerated hypotheses. I don't think the jury could follow that, but neither could the media, so the jury focused more on the evidence they could understand: the timeline and motive evidence.

The domestic violence evidence was totally unpersuasive. It was a badly told story, and once the jury lost credibility with the story of how it happened, [it] became easier for them to dismiss [it]. ...

Do you blame the jury?

No, I don't blame the jury at all. I think that the average juror wants to know why someone would take a human life, especially in a case like this, where you have a well-known celebrity defendant that was, if not respected, certainly looked at with some sense of affection by many segments of the community prior to this trial.

So you have the question of why would someone who seemed to have it all do such a terrible thing, and that's where the domestic violence evidence came in. And the evidence presented at the trial was incredibly weak, nothing like the domestic violence evidence presented by the media to the general public. The story of domestic violence at the trial only involved one incidence of violence five years before this incident. And the story of Simpson trying to control Nicole [Brown Simpson] was not very persuasive at all. Indeed, it came out that the last attempted reconciliation was initiated by Nicole.

So the prosecution told a really bad story about domestic violence that simply wasn't believable. And to the extent that you had jurors who had witnessed domestic violence in their own lives, if not been the victims of it, they might not have reacted with such incredible strength as perhaps some of the public might have reacted to the 911 calls and to the other evidence that was actually presented.

Do you think the outcome of the trial would have been different if the jury had been presented with the same evidence of domestic violence that the public saw?

In this particular case, the evidence of domestic violence was not overwhelming, and even some of the material not presented to the jury still wouldn't by itself lead to a conviction, because any juror could ask, if Mr. Simpson was so out of control, then why in fact had the acts of violence de-escalated during the last few years that they were separated? The pattern wasn't of escalating violence; the pattern was of violence that was decreasing in its incidence, and that is not a story consistent with someone using violence to control an ex-spouse.

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posted oct. 4, 2005

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