The O.J. Verdict
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what the public didn't understand...

Whether it's the role of the jury, the responsibilities of the criminal defense counsel, the prosecution's burden in the courtroom, or how the adversarial system is supposed to operate in a criminal trial -- many observers say the American public doesn't understand the criminal justice system as demonstrated by their reaction to the trial and the verdict. Here, commenting on this, are Gerald Uelmen, member of the defense team; Michael Eric Dyson, professor of humanities, Univ. of Pennsylvania; Alan Dershowitz, member of the defense team; Charles J. Ogletree Jr., Harvard law professor; Peter Arenella, law professor, UCLA; and Donald Jones, law professor, University of Miami.

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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… 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. …

Donald Jones

Donald Jones, law professor at the University of Miami.

Donald Jones

… I don't think people understood the DNA evidence at all. And what they thought was the evidence established something -- but all the evidence did, was rest on a set of assumptions. … If you can assume that they've really done what they're supposed to do, then the DNA evidence is strong. But it assumes that they've done everything they're supposed to do -- kept evidence separate, collected it properly, stored if properly. None of those assumptions were true. …

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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… I've tried so many murder cases and rape cases and drug cases and other cases in my life as a public defender and a criminal defense lawyer, and it always amazes me that people misunderstand what the criminal justice system is all about. It's not truly a search for the truth. We can't do that in the system. If it was a search for the truth, we'd bring in everything about a person's background. We'd let all their past records come in.

It's a search for justice, and justice means that it's fair. It doesn't mean that it's perfect. Justice means that we're trying to make human decisions, not decisions made by a calculator or a computer. And justice means that it may be flawed, but it's better than each and every other nation in the world. So justice and perfection are different things. We have a just criminal justice system. We don't have a perfect criminal justice system. That was reflected in this verdict.

But people want the truth.

People say they wanted the truth, but I don't think they can really appreciate the truth. What is the truth? The truth is that unless O.J. Simpson stands up and says "I did it," the only way you're ever going to prove this case is through evidence and witnesses and reasonable inferences. And in this case, the evidence and witnesses and reasonable inferences from that evidence led to the right result, "not guilty."

And people have to live with that, because what we don't want is the truth that we thought we saw in the state of Illinois. Five years after the O.J. Simpson case, we found 25 people convicted and sentenced to death. On re-examination of those 25 cases, 13 of those people were completely innocent. ... They had lawyers; there were prosecutors; there were judges; there were juries; there were appeals, and they were sentenced to death. We thought we had the truth, but we had a very flawed system. Thank God none of those people were executed in Illinois, and they were able to be freed.

That's what justice is about: getting the right result, no matter how long it takes, rather than seeking truth, which may lead to a conviction of somebody who is truly innocent. …

I still believe it is better, as we've always said in federal law, that ten guilty people go free, than one innocent person be convicted. That's what makes America a different place, a different legal system, and a different set of values that are cherished throughout the world. …

Michael Eric Dyson

Michael Eric Dyson, professor of humanities at the University of Pennsylvania and author of numerous books on race in America, including Is Bill Cosby Right?

Michael Eric Dyson

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… What is surprising is that many white people were surprised. [They were] not listening to [the lyrics from the N.W.A. song]: "Fuck tha police,/ coming straight from the underground./ Young brother[sic] got it bad cuz I'm brown,/ and not the other color so police think,/ They have the authority to kill a minority."

That's a rap song [from] 1988, '89. And you're surprised? Right in L.A. they're making rap songs about this several years before the Rodney King situation. …

So I think what was remarkable to many African American people is that so many white people were racially naive. They were like ostriches putting their heads in the sand ... symbolically sticking their heads in the sand and pretending that the world of racial acrimony didn't exist. Again, this is why the O.J. Simpson case revealed the fault lines that trace beneath our common lives together. It was a race quake that opened the eyes of white people to the reality that black people confront on a daily basis. ...

Peter Arenella

Peter Arenella, law professor at UCLA.

Peter Arenella

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… Tragically, the American public doesn't seem to understand the role of the criminal defense counsel. Even my first year students ask me frequently, "How can you, as a criminal defense attorney … represent a guilty person in good conscience?" The point of an adversarial system is for the defense to force the prosecution to persuade a jury beyond a reasonable doubt of the defendant's guilt. And a defense counsel's ethical role is to make the prosecution satisfy that burden of proof by challenging the credibility and persuasiveness of the prosecution's evidence. Defense counsel can't knowingly put on perjured testimony, but to challenge the credibility of prosecution witnesses, including showing that a prosecution witness might have racist attitudes, is within the defense counsel's role. ….

A criminal trial is supposed to be conducted in a particular way with a sense of separation from the rest of the world, the jury isn't a democratically accountable decision-maker. They're not supposed to reflect majority viewpoints. They're not supposed to do what the public wants; they're supposed to reach a verdict based only on the evidence before them. That's what the Simpson jury did, and they were absolutely crucified for what they did. And yet they acted in completely good faith, doing their civic responsibility. Their lives were interrupted for over fourteen months. And yet when all was said and done, the American public's reaction was they were stupid, they didn't understand the evidence, and they were sending an inappropriate message and freeing a guilty murderer. …

Alan Dershowitz

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


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… What were the public's complaints against the defense?

Well, the biggest complaint is that we won. If we had lost, everybody would have said: "Wow, what great lawyers. They did their job. Of course they lost; they had to, because justice required it." Our biggest sin was that we won.

The second biggest sin is that we understood the rule of race in this case. And the third biggest sin is that we put the police on trial. Instead of defending our client, we prosecuted the police, and that was the best strategy for winning this case. It was a strategy that I had devised 15 years earlier in a book called The Best Defense where I said, "In a case like this, you put the prosecution on trial."

But is putting the prosecution on trial going to uncover the truth about the killing?

There are many levels of truth. Whatever you believe the truth is about whether O.J. Simpson killed these people, that's one level of truth. Another level of truth is, did the police plant evidence? Another level of truth is, did the police lie in order to conduct a search? Another level of truth is, did Fuhrman make statements about race that the jury never heard about? There are different levels of truth. There's ultimate truth; there's intermediate truth; there's preliminary truth. Everybody likes one part of the truth and not the other.

If you're a prosecutor, and you believe the defendant is guilty, you only talk about ultimate truth, but not intermediate truth. If you're the defense attorney, you care deeply about intermediate truth, but you tend to neglect ultimate truth. So everybody likes certain truths and dislikes other truths, depending on whether it serves their interests.

Read more about the different layers of "truth" in a criminal trial in this chapter from Alan Dershowitz's book, Reasonable Doubts.

... The other thing that I think the public hated is this showed how the Constitution is really supposed to work. This was a case with a level playing field. This was a case where the defense had not quite as many resources as the prosecution, but roughly the same resources. We had the best forensic pathologists. We had the best lawyer on DNA, Barry Scheck. We had the best trial lawyer for a Los Angeles jury, Johnnie Cochran. We had F. Lee Bailey, who had more experience than any lawyer in America. We had Jerry Uelmen and me, who could do the sophisticated legal research. We had [forensic pathologist] Dr. [Michael] Baden; we had Dr. Lee. We could stand mano a mano against the prosecution. And the public didn't like a level playing field, because in a level playing field, when the burden is on the prosecution to prove guilt beyond a reasonable doubt, the defense will often win. …

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posted oct. 4, 2005

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