| | | REALITY TRAGEDY | | |
Whatever Fortune has raised on high, she lifts but to bring low.
—Agamemnon, Seneca the Younger
When O. J. Simpson flew to Chicago on the 11:00 p.m. flight out of LAX on June 13, 1994, he looked down at the Tron-like grid of lights and roads that is Los Angeles. As he made the slow arc over the Pacific and headed out to the desert, he saw seventy straight miles of streets and freeways crawling with red and white, the headlight and brake light blood cells that make up the body of Los Angeles.
Los Angeles is movement. A restless, kinetic city of makeovers, do-overs, and the shimmering mirage of the American dream. From the early 1900s, people from the East Coast and the Midwest came to Los Angeles to be free of the puritanical wince of repressed sexuality. African Americans came from the South to escape racism in order to encounter a different kind of bias. And many came from Mexico to escape poverty and pursue the immigrant’s dream. Rich people, poor people, bored people, and the oppressed all came to the Golden State to remake their lives, remake themselves.
And they all got in their cars and drove.
From the early twentieth century, Los Angeles has always been synonymous with cars because it allowed these new dream seekers to move. Automobile manufacturers tested all of their cars in Los Angeles to find out what these new freedom riders needed, to find out what these consumers wanted to buy to reinvent themselves. Because the main industry in Los Angeles is reinvention. Hollywood is called “The Dream Factory,” but it is a moniker that is attached to all of Los Angeles.
So it is apt that American justice reinvented itself in a Ford Bronco on a stretch of freeway from Orange County to Brentwood, California, on June 17, 1994.
The news reinvented itself that day too. Both the way news agencies covered events and the way they profited from them. Never before had one hundred million people continuously watched a single event for five hours. Pandora’s box was opened that day and can never be closed again.
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By 1921, Paramount Pictures had paid Fatty Arbuckle three million dollars to star in eighteen silent films. He had just signed another million-dollar contract when he was arrested for the murder of a thirty-year-old aspiring actress named Virginia Rappe during an alleged sexual assault. With Arbuckle sitting in cell number 12 in the San Francisco Hall of Justice, various newspaper headlines screamed, “Evidence Shows Conclusively He Was Directly Responsible for Death,” “Three Striking Poses of Virginia Rappe, Victim in Arbuckle Orgy,” and “Plan to Send Arbuckle to Death on Gallows.” He had two hung juries before he was acquitted of all charges. But his career was over and he died of a heart attack in a hotel room at age forty-six.
Bruno Richard Hauptmann was tried for the kidnapping and murder of the infant son of Charles Lindbergh, the famous aviator. He was tried in a one-hundred-year-old courthouse in Flemington, New Jersey. Tens of thousands clamored for tickets to the courtroom, distributed by the sheriff’s office, and approximately two hundred journalists covered the trial, touting it as “The Trial of the Century.”
The jury was sequestered in the same hotel as the journalists and could hear their radio broadcasts at night from neighboring rooms. The jurors also had to wade through crowds shouting for the execution of Hauptmann, while vendors sold miniature “Lindbergh ladders,” replicas of what had been used to kidnap the boy. Five newsreel companies covered the trial, and a hidden microphone was installed over the jury box to capture the proceedings.
When the jury retired to discuss its verdict, ten thousand people waited in the streets below, chanting “Kill Hauptmann! Kill Hauptmann!” When the jury returned a death sentence, the crowd roared its approval. In their living room, the Lindberghs listened to both the verdict and the crowd’s approval. Reportedly, Charles Lindbergh turned off the radio and with disdain said, “That was a lynching mob.”
The Lindberghs knew that the public verdict was not for them or the death of their son. They knew that justice by popular condemnation serves a different purpose than justice sought for personal loss or a state’s regulation of criminal conduct.
Dr. Sam Sheppard lived with his pregnant wife in Bay Village, Ohio. On July 4, 1954, while fireworks flecked the night sky over this bucolic Lake Erie town, Sheppard’s wife was found slain and he was arrested. He was charged with second-degree murder.
Immediately, the newspapers dogged the story, not only reporting on every detail, but also writing editorials sharply criticizing the police and Sheppard. First, they scolded Sheppard for refusing to make statements to the police without his lawyer present and refusing to take a lie detector test. He finally relented and was interviewed for several hours by the police without counsel. At the request of the coroner, Sheppard reenacted his version of the events on the day of his wife’s death. The coroner invited newsmen to attend, and this version was widely reported the next day.
The newspapers also questioned why the coroner had not held an inquest. Lo and behold, an inquest was held the next day in a school auditorium, where Sheppard was searched in front of hundreds of spectators who cheered, booed, and blew kisses to the coroner, the proceedings broadcast live on radio. The day after two rebuking newspaper editorials questioned why he had not been detained, Sheppard was finally arrested and charged with murder. He was brought in to the Bay Village City Hall in front of hundreds of people, newscasters, photographers, and reporters, who were awaiting his arrival.
When his trial finally started, the first rows of the audience gallery were given to the media, with Sheppard’s family and the public given the back rows of the courtroom. The judge was interviewed on the front steps of the courthouse and all the lawyers, witnesses, and jurors ran a gauntlet of photographers when they walked down the halls to the courtroom.
Most of the jurors subscribed to the newspapers that ran daily stories of the trial. They were photographed by hundreds of reporters and a helicopter captured footage of their site visit to the Sheppard home. The jurors sat for posed pictures the day before the verdict, and over forty stories about the jury appeared in the newspapers. The jurors admitted during the trial that they had seen the numerous damning articles that appeared almost daily in the newspapers, implicating Sheppard in the murder.
When the jury finally convicted him, the Ohio appeals court ruled, “Murder and mystery, society, sex and suspense were combined in this case in such a manner as to intrigue and captivate the public fancy to a degree perhaps unparalleled in recent annals. Throughout the pre-indictment investigation, the subsequent legal skirmishes and the nine-week trial, circulation-conscious editors catered to the insatiable interest of the American public in the bizarre. . . . In this atmosphere of a ‘Roman holiday’ for the news media, Sam Sheppard stood trial for his life.”
This judgment went all the way up to the Supreme Court, and they overturned the verdict, ruling that in this “carnival atmosphere . . . the massive, pervasive, and prejudicial publicity prevented him from obtaining a fair trial . . .” and, “The trial court failed to invoke procedures which would have guaranteed petitioner a fair trial, such as adopting stricter rules for use of the courtroom by newsmen as petitioner’s counsel requested, limiting their number, and more closely supervising their courtroom conduct. The court should also have insulated the witnesses; controlled the release of leads, information, and gossip to the press by police officers, witnesses, and counsel; proscribed extrajudicial statements by any lawyer, witness, party, or court official divulging prejudicial matters; and requested the appropriate city and county officials to regulate release of information by their employees.”
Twelve years later, a young F. Lee Bailey re-tried the case and won an acquittal for Sheppard. But the words of the Supreme Court have gone unheeded for more than fifty years.
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On the early morning of June 13, 1994, a confused and crazed akita was heard barking in a Brentwood neighborhood. Sukru Boztepe was walking along Bundy Drive shortly after midnight when he was pulled to a bloody scene by the dog. When he looked down a path to a condominium in the upscale neighborhood, he saw a blond woman lying in a pool of blood.
When the police were called, they discovered the bodies of Nicole Brown Simpson and Ron Goldman. Nicole was the ex-wife of football star and movie actor O. J. Simpson, and Goldman was a young waiter who worked at the nearby Mezzaluna restaurant.
When the detectives on the scene discovered that one of the victims was the ex-wife of Simpson, they went to his house, two and a half miles away. The house sat behind a fence and private gate, and seeing some blood on a door of a car parked next to the house, one of the detectives, Mark Fuhrman, climbed over the fence and recorded in his police report that he found a bloody glove behind the house. While at the house, the detectives found out that Nicole Brown Simpson’s ex-husband flew to Chicago the night before. He was contacted at a hotel near the O’Hare airport and immediately got on a plane back to Los Angeles.
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When Simpson flew back from Chicago on June 13, 1994, he passed over the homes of Armanda C., Carrie B., and Marsha R. J. They lived less than a dozen miles but a world away from Brentwood. They and nine other jurors would be inextricably tied together with Simpson in a trial that would last over eight months and capture the attention of our entire country.
I grew up two miles from the Bundy condo where Nicole Brown Simpson and Ron Goldman were murdered. For those of us who grew up in Santa Monica, our experience of police was at the Fourth of July parade, or if your party got too loud and the neighbors complained, or, God forbid, you got pulled over for going 40 in a 30 mph zone. But if you were Armanda C. or Carrie B. or Marsha R. J., you had a different experience of police altogether.
I watched much of the Bronco chase from a CNN studio where Larry King was interviewing trial consultant Jo-Ellan Dimitrius. Jo-Ellan and I had been colleagues and friends for years. She had handled a few high-profile cases before, most notably that of the police officers who were acquitted in the Rodney King beating case in 1992. She had called me on April 29 of that year, and we had a long talk. As the riots raged in many parts of the city, she felt terrible that the result of the trial had caused such pain and destruction. We discussed the nature of working on high-profile trials and the difficulty of representing unpopular clients or unpopular decisions under the disapproving glare of parents where your kids went to school and the censorious glances of friends and even family.
When the terrible events happened at the Bundy condo in early June of 1994 and the media firestorm started, Jo-Ellan asked me to come with her to the Larry King interview as part of our ongoing discussion of the media in these cases. And there we were in the studio, watching as that white truck rolled up the I-405 freeway, making O. J. Simpson’s pain transparent to one hundred million people. On that day, he became their O. J. They became his prosecutors, his defenders, and his jury. He was no longer a running back or an actor. His iconography transformed that afternoon from sports star and actor to accused murderer.
The Bronco chase, like many other pivotal points in the case, divided the strategies of the prosecution and the defense. For the prosecution, any suspect who runs shows “consciousness of guilt.” However, this was no ordinary runner. This was O. J. Simpson, arguably the greatest running back of all time. Simpson, who in 1973 became the first man in NFL history to rush for two thousand yards, who led the league in carries, yards, and touchdowns, was on the run. For the defense, the Bronco chase was the act of a desperate, suicidal man.
The police, along with the district attorney’s office, are charged with following the evidence wherever it leads and in preserving the rights of the defendant as well as the state’s interests. But that all goes to hell in a handbasket in a high-profile case. Political pressures make these cases win-at-all-costs scenarios because they go on the reelection résumé for the office.
Almost immediately, the district attorney’s office released Nicole and O. J. Simpson’s previous domestic abuse 911 calls to the press. There was only one intention behind this release: to poison the public against O. J. prior to the trial. Prosecutors have long relied on the “perp walk,” mug shots, and press releases to sway jurors in high-profile cases. Once the public sees an accused in handcuffs or glaring mug shots with a bleary-looking defendant holding numbers across their chest, the jury thinks they look guilty. And while the district attorney’s office often protests when the defense in a high-profile case makes statements to the media, prosecutors themselves are able to make their case to the jury pool ahead of the trial by leaking evidence to the press. From the beginning, we knew that the prosecution planned to try this case in the press before they got to court.
We also knew that Jo-Ellan’s work on the Rodney King case made her a leading candidate for the trial consulting job on Simpson’s case. But Jo-Ellan was ambivalent at first. She had been asked by a couple of networks to work as a paid consultant and on-air commentator and was seriously considering it. She asked me what I thought. I told her that we were trial consultants, and while she could get a lot of exposure and contribute to the public’s understanding of the jury system, this would be a historic trial with a lot of important jury issues. She thought about it and agreed that the trial was where we could make the biggest contribution.
Sure enough, we were asked by attorney Robert Shapiro to come in to discuss jury selection. Jo-Ellan had spoken to another longtime colleague, Dr. Paul Strand from San Diego State University, about conducting a survey of Los Angeles jury-qualified residents to see how they initially saw Simpson’s guilt, given all of the pretrial publicity and the release of the 911 tapes. We wanted to go into the meeting demonstrating we had done our homework and already had some information about how a jury looked at the case. Strand conducted the survey out of his lab in San Diego, and the results proved to be both revealing and counterintuitive. As a result, we were hired.
PRETRIAL WORK
One of the biggest concerns the defense team had was that the unprecedented pretrial publicity, along with the release of the 911 calls, would prejudice the public into prejudging Simpson. Indeed, numerous public opinion polls conducted by news organizations already indicated a majority of Americans were predisposed toward Simpson’s guilt. We thought that the more potential jurors were exposed to the mostly pro-prosecution stories in the media, the more they would be preconditioned to Simpson’s guilt, making it exceedingly difficult to seat a fair and especially impartial jury. However, when Strand’s polling came back on a couple of refined questions, we found an interesting result. The more people had heard about the case, the more they were inclined to think Simpson was not guilty. Even more important was that half of those polled didn’t want to believe that he was guilty.
We were learning, as became more apparent in later “celebrity” trials, the great barometric test in the changing weather of public opinion is how much the public wants an O. J. Simpson, Michael Jackson, or Martha Stewart to be guilty or innocent of the alleged crime. And early on in the Simpson case, the images of the crime so contrasted with the public’s image of the man that most did not want to believe that the USC and Buffalo Bill running back they had rooted for, or Officer Nordberg in the Naked Gun movies that they had laughed at, could have done such a horrible thing.
Experienced trial consultants spend a great deal of time in trial listening to juries in voir dire and talking to them, if possible, after a verdict. However experienced, smart, or intuitive we think we are, the real staple of consulting is research. Because research in the form of surveys, mock trials, and focus groups lets you look at a jury’s decision-making patterns. Good jury research digs below the surface of a jury’s reaction to the case and looks at the blueprint of the decision-making machinery of how they arrive at a verdict. The how allows the consultant and the trial team to present the evidence in trial so that the jury you have will more easily understand and be influenced by your case. Lawyers and judges talk about juries being unpredictable, but they are actually unpredictable in very predictable ways. Juries have patterns in their decision making, and if you ask the right questions and listen carefully enough, they will tell you exactly what they need in order to come to the verdict you want.
We decided to have two tracks of research, public opinion polling and our own research. I asked Dr. Sharon Gross, a brilliant social psychologist and one of my mentors, to track the public opinion polling. Predictably, it was overwhelmingly negative toward Simpson. Armchair jurors around the country were seeing news reports about the 911 calls, hearing leaks about the blood evidence, and listening to District Attorney Gil Garcetti’s proclamations about Simpson’s guilt.
However, as we have seen from the public’s outrage to other high-profile cases, the public mind and the private juror mind often differ. In addition to Strand’s survey, we also wanted to understand how our jury pool thought about what they had heard in the news. We had to carefully plan the research as we knew the media was hungry for stories, and would love to hear about how the trial consultants would “spin” the case. So we carefully screened our focus group “jurors” to make sure that there were no leaks. Ironically, DecisionQuest, a national trial consulting firm who was hired by the district attorney’s office, decided to conduct their focus group research in Phoenix to avoid being discovered by the press. This was an odd choice, as Maricopa County jurors are nothing like Los Angeles residents, so any feedback they got would have been a false read for the Los Angeles jury pool. The media managed to discover their focus group location and hounded the DA team all the way back to Los Angeles. We managed to conduct our focus group research undetected.
When we looked at our survey data and our focus group results, some interesting patterns emerged. While only a little more than a third of our respondents thought Simpson was actually innocent, two-thirds thought that Simpson did not have enough time to commit the murders, giving the defense team an insight to an important theme in the case. When looking at our research, two other key findings emerged: almost half of those expected to show up in the jury pool had been treated poorly by police at least once, and almost a third believed that blacks were rarely treated well in the justice system.
CBS’s hit show CSI did not premiere until 2000, so DNA evidence was a relatively new concept for the general public. In our research, the prosecution’s evidence of a DNA match to Simpson did not get a strong reaction except for one particular demographic: young people. Almost two-thirds of the under-thirty-five set leaned toward acquittal but also believed in the strength of DNA evidence. We knew we would have to keep an eye out for this group, as these jurors could swing toward either acquittal or conviction.
And in another counterintuitive twist, almost half of the divorced or widowed women we spoke to leaned toward acquittal. Surprisingly, Nicole Brown Simpson’s history of 911 calls and domestic abuse did not impress them as a motive for murder. We knew from the release of the 911 calls that the prosecution would be trying an escalated spousal abuse case. We believed that the prosecution’s primary motive evidence would be:
Although the prosecution does not have to prove motive, jurors always consider it when they are trying to solve a crime, especially a gruesome murder. It did not take an expert to figure out that the district attorney would want women on the jury who could relate to Nicole’s circumstances and condemn O. J. as an abuser. And it was here where our research provided some insight into our jury-selection profile. I asked some of the women in our focus group why they were reluctant to convict Simpson. Some who had been in troubled relationships shared that they themselves had contributed to the volatility with their partners. And the stronger women I spoke to were proud to claim they gave as much as they got. They said that although they did not stay in relationships with their abusive husbands and boyfriends, it was too big a leap to say that the fights and physical abuse alone provided motive for murder.
The prosecution, in pursuing this “abuse equals murder” angle, also left narrative inconsistencies in their motive story. The physical evidence pointed to a rage or impulse killing, while the prosecution’s timeline suggested a carefully premeditated murder to fit into a prearranged alibi for Simpson. The premeditation scenario did not fit our jurors’ perception of domestic abuse being a “heat of passion” reaction and the gruesomeness of the attack. And the jealous rage scenario did not make sense with the prosecution’s theory of how Simpson had carefully planned the killings to be able to make his flight, as well as the coincidence that he just happened to be carrying a knife. These may seem like small inconsistencies, but for a jury considering a first-degree murder conviction, these can be the seeds of doubt. In our focus groups, a number of jurors spoke about how these stories did not seem to “fit.”
So we learned from the research that we did not have to be overly concerned with strong women who had been in physically combative relationships with boyfriends and husbands. And this provided a big strategic advantage by allowing us to keep jurors that the prosecution would also want, gambling that our research was better than their intuition.
Finally, the jury research told us that the pretrial publicity had a counterintuitive effect. The media’s furious competition for the “exclusive story” made rampant rumors and speculation fair game. And because most traditional journalists had no-pay policies, the National Enquirer became one of the most trusted sources for breaking news on the case, specifically because they could pay and pay well. So everything Simpson was a story. Everything was for sale. The trial became a commodity, fueled by the public’s insatiable desire to hear anything and everything related to not only O. J. and Nicole, but the police, the lawyers, and anyone who knew a family, friend, or foe associated even remotely with the trial or that terrible night in Brentwood.
The more that prospective jurors heard about the case, the more they could not distinguish real facts from the hype and sensationalized coverage. Thus, evidence got buried in the slag heap of hearsay and rank speculation that ran amok in the scramble for scoops. Jurors were already suspicious and had more than a modicum of doubt about everything that they had heard, even the prosecution’s hardest of hard evidence.
This unprecedented media feast also desensitized jurors to the evidence they were going to hear in the actual trial. The 911 calls and pictures of the Bundy crime scene had lost the visceral punch of the first time seeing those bloody images and hearing the fear and anguish in Nicole’s voice.
All of the defense lawyers were savvy enough to understand that the trial had started long before jury selection. The police and the prosecutors were conducting their investigation. The defense also set up a tip line and fielded hundreds of calls and letters. And the media was conducting their own investigation, fueled by advertising dollars and Nielsen ratings. Tracie Savage of KNBC News in Los Angeles had to testify in a court hearing after she reported on a DNA match of Nicole that was found on one of O. J.’s socks, even before the defense had heard of the lab results. Credible witnesses became discredited overnight when it was found out that they had sold their stories to the tabloids.
Between evidence leaks from the prosecutor’s office, the separate investigations conducted by hundreds of journalists, and the interviews given by the Goldman and Brown families on one side and O. J.’s friends and family on the other, the pretrial PR wars were at a fever pitch. Hundreds of letters flooded the jail in support of O. J.
And in this both heady and noxious air of public scrutiny, everyone became an instant celebrity. Robert Kardashian, whose young children Kim, Khloe, Kourtney, and Rob would later become famous for being famous, would get better tables at his favorite restaurant in Beverly Hills. Jo-Ellan went to the White House Christmas party with Larry King and met Bill Clinton. Vanity Fair wanted to do a glamour photo spread of the defense team.
At the office, we received dozens of calls every day from media outlets in Japan, Sweden, and Australia asking us about this strange phenomenon called the jury trial. And everyone wanted in on the action. Graphologists, phrenologists, and psychics all called to help us “read” the jurors and to be a part of the Big Show.
Larry King famously quipped, “If we had God scheduled and O. J. wanted to be interviewed, we would have to move God.” Ultimately both prosecution and defense teams paid way too much attention to the media in the case. It was all new, the spotlight was seductive, and no one really knew how important it would be for the case or their careers.
In this environment, the mantle of impartiality, including Lady Justice’s blindfold, is ripped away, revealing the naked body of justice with all of its scars and flab. Presumption of innocence and burden of proof take on new meaning. The prosecution’s challenge was to present a case that had already been presented, to meet the expectations of those who had already heard the evidence and arguments.
Our job was to maintain the balance of power prior to jury selection. In the iconography of this trial, we wanted to make sure that the defendant Orenthal James Simpson remained a human being and not the crazed, manipulative monster in the evidence leaks and news stories. In humanizing the defendant, we wanted our jury, at the beginning of the trial, to presume him innocent of the crimes for which he was charged. More importantly, we wanted them to still want to believe he was innocent.
JURY SELECTION
In 1968, Martin Luther King Jr. was assassinated, and a week later, an Iowa schoolteacher named Jane Elliott tried an experiment. She told her class of seven-year-olds that the blue-eyed kids were superior to the brown-eyed kids. Within minutes, these superior children were denigrating and dismissing their brown-eyed counterparts. She then reversed her instruction, telling the brown-eyed children that they were better. They in turn also treated their blue-eyed classmates—their friends—with scorn.
This in-group/out-group phenomenon is one of the best-tested and recognized phenomena in the social sciences. We like people who are like us. Look like us. Talk like us. Behave like us. We mistrust all others. Until we decide they actually are kind of like us. Then they’re okay.
This is a very old biological and neurological mechanism, older than language. Yet, when we speak about race, with good intention, we often reinforce the very stereotypes and clichés that we seek to dispel. Every poll that describes how African American, Latino, or Asian populations differ from Caucasian folks reinforces the concept that somehow, skin pigment determines belief systems.
And this is natural. Because our ancient predator-prey instincts demand that we create labels for every out-group difference as a matter of survival. It is also easier to label differences as “black,” “white,” “men,” or “women” than to delve into the subtle complexities of culture, geography, linguistics, and psychology.
But it is actually not that complicated. We all have biases, whether they be race, gender, religion, sexual orientation, politics, music, or food choice. These biases are bred and fed from the time we are born, and nurtured by the personal experiences in our lives.
But we will never admit we have biases. Which is a bias itself, for us to think we are bias free. Biases are as natural as breathing. And the more we deny that we have them, the firmer they become cemented in our psyche. We just find more and more elaborate explanations for why we feel we don’t have them. Racism is a slow-growing weed, fertilized with subtle biases over the years and denied the light and air of tolerance.
In 2011, 120,000 African American and Latino kids got stopped and frisked by the police. It is so commonplace that for most minorities, it is not a matter of whether they will be stopped, but how many times. The more times they are stopped, the more likely they will be arrested. The more times they are arrested, the more times they are likely to be charged. The more times they are charged, the more times they are likely to be convicted. It is basic math.
In communities like Inglewood, Compton, and East Los Angeles, the kids grow up being schooled in these basic equations. And transplants to Los Angeles from East St. Louis, Philadelphia, and Biloxi are also familiar with these formulas. For those jurors who lived in these areas, the claims of police profiling and evidence planting and tampering, were not the desperate attempts of a defendant trying to escape conviction—they were a reality of living with the Los Angeles Police Department. And because poorer minority communities cannot afford the lawyers or the legislators to challenge this pattern, this became the norm. So they were not shocked when they saw a video of police officers raining almost sixty blows on Rodney King in eighty seconds. They were not shocked when they heard that five young black men in New York’s Central Park “wilding” case were coerced into confessing and were prosecuted, convicted, and served years in prison for crimes they did not do.
A cooperative democracy has always been counterintuitive given our antediluvian tribal beginnings. Over the course of history, we have spent much more evolutionary time building our neurological instincts for survival than our social instincts for tolerance and cooperation. Thomas Jefferson wrote “all men are created equal” in the Declaration of Independence while owning slaves. Abraham Lincoln issued the Emancipation Proclamation in 1863, yet thirty-three years later the Supreme Court, without a shred of irony, decided on the “separate but equal” doctrine in Plessy v. Ferguson that legitimized racial discrimination through Jim Crow laws until the Brown v. Board of Education Supreme Court ruling in 1954. Our nation still struggles with the issue of race in the form of affirmative action rulings by the Supreme Court, immigration reform in Congress, and the daily confrontations of George Zimmermans and Trayvon Martins across this country. Our struggle will continue until we confront our biases and accept our differences.
On July 19, before the trial, there was a meeting between District Attorney Garcetti, John Mack of the Urban League, the NAACP, and the Southern Christian Leadership Conference. Garcetti wanted to assure the African American leadership in Los Angeles that a jury would be selected that was fair, representative, and racially diverse. This promise became one of the anchors for jury selection, one that we would remind the district attorneys of again and again.
Since the trial’s conclusion in 1995, a myth has been perpetuated that if only the prosecution had filed their case and tried it in Santa Monica, it would have had a different outcome. It wouldn’t have. Both Marcia Clark and Chris Darden had tried lots of African American defendants in front of African American juries and won convictions. The district attorney also had plenty of sound logistical reasons for trying this case in downtown Los Angeles, including proximity to their main office just above the courtroom; Parker Center, where the evidence was stored; and the central jail where Simpson was housed. Downtown was also their home turf. The place where they won convictions in 90 percent of their cases. But most importantly, juries are selected randomly from a twenty-mile radius of each courthouse. Predominantly the same jury pool would have been called to Santa Monica, because jurors from lower socioeconomic areas like South Central were all within twenty miles. We had also prepared and filed a motion with the jury commissioner to make sure that, when jury notices were sent out, these lower socioeconomic geographic areas were fairly represented. And finally, Garcetti had made political promises to the African American community about the racial diversity of the jury.
Think about the racial implications of the concept: “If only it had been tried in Santa Monica, it would have had a different outcome.” In other words, “Rich white people would have gotten it right.” This is the type of thinking that has been alienating both minority and lower socioeconomic jurors across this country for decades.
Nationally, juries convict defendants in criminal trials around 90 percent of the time. When polled, judges approve of jury verdicts almost all of the time. Yet a few high-profile cases that have ended in acquittals have translated into a public distrust of the jury system. Cries of abolishing citizen juries and empaneling expert juries resound, and legislation is introduced to try to reform a jury system that, by all measures, works. It works so well, in fact, that other countries around the world, including Japan, South Korea, and Mexico, have started implementing jury systems.
Yet even lawyers fear juries as “unpredictable,” constantly advising clients to plead out criminal cases or settle civil cases because “You never know what a jury will do.” Most of the public’s distrust of juries comes from a lack of civics education in schools and a misunderstanding of a jury trial’s true function. Most attorney distrust of juries comes from a misunderstanding of their own role in relation to a jury. Lawyers think that it’s the jurors’ job to listen with rapt attention to every word of their case, when it is in fact the attorney’s job to communicate their case so that the jury fully understands it. It is a subtle, yet important distinction that profoundly affects the ability of attorneys to accurately represent their clients and for jurors to make their best decisions in trials. When lawyers in expensive suits speak ten-dollar words with the arrogant expectancy that jurors who struggle to pay their rent, work long hours, and worry about their kids’ health and safety should pay attention to them, a significant communication gap occurs. As I said, two countries, two languages.
One of my privileges is to be a translator. To not only understand the idiosyncratic language of any given jury panel but their culture, customs, habits, and beliefs. One of the ways you do this is by carefully designing a jury questionnaire to try to understand as much as possible about the jurors you will be interviewing.
We submitted a fifty-page questionnaire to Judge Ito and DecisionQuest, the prosecution’s consultants, proposed a one-hundred-and-twenty-page behemoth. Even a fifty-page questionnaire was larger than I liked, but given the nature of the case we had to cover a number of areas: personal background history of all of the jurors, the pretrial publicity they had seen and how it had affected them, experience with the police and domestic violence, knowledge of O. J. Simpson, attitudes toward the criminal justice system, interracial marriage, and DNA evidence.
There was also a one-page hardship questionnaire in which jurors discussed their potential difficulties in serving as a juror on the case. And it was here where the prosecution ran into a real problem. According to them, they had a “mountain of evidence” that they were eager to bury Simpson with. But it takes a long time to build a mountain. And most employers simply could not afford to pay their employees to be gone for the estimated six months that the trial would take. So a large portion of the jury-qualified citizens were eliminated because of financial hardship, medical reasons, preplanned trips, and caretaking requirements of children or elderly parents.
After the hardship phase, the overall jury pool for the defense improved immensely. Many higher-income, conservative jurors who were more reliant on law enforcement and less willing to believe in police tampering or misconduct did not want to serve on this long a trial.
The pool that was left was populated with citizens whose employers would pay for unlimited jury service: postal workers, teachers, utility employees, personnel of large companies with generous jury service policies, as well as the retired, unemployed, and people who were on disability leave. The people who worked in government or large organizations had seen firsthand the frequent backstabbing, political infighting, and cover-your-ass behavior, thus were more receptive to the defense themes of police error and misconduct.
We also had to consider how sequestering the jury would affect the outcome of the case. There was, and still is, very little research on the effects of sequestration on jury decision making and verdict preference in a criminal case. We wondered if such a long period of time spent apart from a juror’s family, friends, and home environment would result in the jurors identifying and building relationships with law enforcement, the sheriff’s office in this case, who was charged with protecting them and guarding them during the trial, resulting in jurors giving more credence to police testimony.
On the other hand, we also wanted to protect jurors from the daily media rumor mill that kept churning out negative stories against Simpson. When I consulted with Dr. Gross, who had been tracking the public opinion polling, it was apparent that the public’s attitude was deteriorating toward Simpson and the defense team as a whole. As a result, we decided that sequestering would probably be a better course.
This also factored into a personality profile that we considered for jury selection. In a normal criminal case, defense lawyers know the deck is typically stacked against them with both evidence and juror attitudes. As a result, they sometimes look for just one or two contrarian or loner jurors to push for an acquittal or to hang the verdict. However, in this case, it was clear that we wanted an acquittal jury. For this, we needed jurors who would be able to manage the pressures of a long trial, work together, and reach an acquittal consensus.
Dr. Paul Strand, who had done our survey polling, had also developed a unique statistical model especially for the trial. This model used our prior survey data to create a jury profile. Strand then input the information from each of the juror’s questionnaires into the model to come up with a positive, neutral, or negative ranking for each juror. This was especially useful when we had a juror with both positive and very negative questionnaire responses. Based on their cumulative responses to our key questions, the statistical model could tell us whether that juror was ultimately favorable or unfavorable for us. Strand would meet with Johnnie Cochran during the selection process to go over these rank orderings so that when we reached the final strike phase, Johnnie would know how to make strategic calls in the chesslike, peremptory challenge phase.
Just as we were about to start the individual questioning of jurors, Dove Books published Faye Resnick’s autobiography. She was a friend of Nicole’s and had damning things to say about O. J., which of course the tabloids splashed all over the headlines right before jury selection. The team was thrown into a quandary about whether to delay the trial. But we did not want to give the prosecution more investigation time, so we decided to forge ahead. This latest sensationalism also reinforced our desire to have the jurors sequestered.
We spent several weeks questioning jurors individually about the pretrial publicity (including anything they had heard about Resnick’s book) as well as numerous other specifics contained in the jurors’ seventy-nine-page questionnaire. Both Cochran and Shapiro did an excellent job of weeding the jury pool, identifying jurors who had a hidden agenda, had already formed an opinion about Simpson’s guilt, or who were already leaning toward the prosecution. Cochran also spoke candidly to the jurors about race, to find out if some jurors would already lean toward guilt because they disapproved of O. J. and Nicole’s interracial marriage.
When we finally got to the strike phase, the prosecution used a number of challenges on African American jurors. We issued a Wheeler motion (California’s version of a Batson motion) to make them explain the nondiscriminatory reasons they had for kicking off those jurors. As the prosecution decided to make more and more strikes on black jurors, they were also reminded of the promises they had made to the African American community about the representativeness of the jury. They finally had to stop and we had our jury. Twelve jurors and twelve alternates. Although much has been made of the racial composition of the original jury, for us it was much more important to understand the life experiences of those jurors, as those experiences profoundly affected how they saw the world, and thus the case. The final jury included:
Juror Marsha R. J. was raised in Oakland, California, in a neighborhood where hers was one of the few black families. Her sister was a Black Panther.
Juror Armanda C. grew up in a small town ten miles from Gary, Indiana, twenty-five miles from Chicago. She recalled, “There were certain cities in Indiana we [black people] could not live in, such as Griffith and Highland, during that period of time. Where I grew up we were not even allowed to go to certain stores. When I went to certain stores, the salespeople would look at me like they knew I was stealing something, and while they’re looking at me thinking I’m stealing something, the white kid’s got it and gone.” She also remembered living across the tracks in a predominantly black neighborhood where some white kids went to her school. She said, “The white kids let you know that being white carried some kind of superiority.”
Juror C. was an alternate juror who was raised in the South. He felt that “the white man will hold you back if you let him.” It became clear to many jurors that he held a deep-seated hatred for white people. He never made it on the jury.
Most significantly, three-quarters of our jurors had negative experiences with law enforcement. Either they themselves, family, or friends had been pulled over for a DWB—“Driving While Black” as it’s known in Los Angeles—or been arrested and harassed for insignificant infractions, or had drugs planted on them by the police.
Recently, President Obama spoke candidly and personally after the Zimmerman verdict in Sanford, Florida, in July of 2013, “I think it’s important to recognize that the African American community is looking at this issue through a set of experiences and a history that doesn’t go away. There are very few African American men in this country who haven’t had the experience of being followed when they were shopping in a department store. That includes me. There are probably very few African American men who haven’t had the experience of walking across the street and hearing the locks click on the doors of cars. There are very few African Americans who haven’t had the experience of getting on an elevator and a woman clutching her purse nervously and holding her breath until she had a chance to get off. That happens often. And, you know, I—I don’t want to exaggerate this, but those sets of experiences inform how the African American community interprets what happened one night in Florida.”
Writing about Simpson’s eventual acquittal, Michael Wilbon, an African American columnist for the Washington Post, wrote, “You see evidence. I see a plant. I see a racist cop. You see a defense attorney’s diversionary tactics. The lines aren’t always that clear, but they are in this instance.”
The challenge for any trial attorney, especially when they know they have a tough audience, is adjusting their presentation for the jury they have, not the jury they wish they had or the jury they think they should have. The prosecution failed to learn this lesson.
THE TRIAL
Suit the action to the word, the word to the action, with this special observance: that you o’erstep not the modesty of nature; for any thing so overdone is from the purpose of playing, whose end, both at the first and now, was and is, to hold, as ’twere, the mirror up to nature; to show virtue her own feature, scorn her own image, and the very age and body of the time his form and pressure. Now this overdone, or come tardy off, though it make the unskillful laugh, cannot but make the judicious grieve, the censure of the which one must in your allowance o’erweigh a whole theatre of others.
—Hamlet, William Shakespeare
Whether some saw this case as Shakespeare’s Othello, a Jacobean tragedy, or political retribution for the acquittals in the Rodney King case, the Simpson trial marked a new era in modern media trial coverage. This was the mother of all reality shows: a football star turned actor, a beautiful estranged wife, her young boyfriend, a horribly violent death, a slow freeway chase, a yearlong daily soap opera, all played out on television in front of millions.
According to some reports, approximately two thousand reporters covered the trial from the initial discovery of the bodies to the aftermath of the verdicts. There were more than 121 video feeds with eighty miles of cable from the Criminal Courts Building, an electric jungle of black snakes carrying footage of witness testimony, reports, and pundit opinion to the world. The Los Angeles Times published over one thousand articles on the case, while television ratings soared for everything O. J.
It became the first reality TV presentation, a version of The Truman Show, the 1998 Peter Weir–Jim Carrey movie, where 24/7 coverage focused on the personalities of players as much as the trial. Marcia Clark’s makeover and Kato Kaelin’s hairstyle, the disputes among the Simpson defense team, and the Hollywood parties all seamlessly blended into coverage from CNN to Entertainment Tonight.
There was dinner at Drai’s and Halloween parties at Spago with Robert Shapiro dressed as a boxer. A screening party at movie producer Robert Evans’s house. A Christmas party at Robert Kardashian’s house, meeting the future stars of Keeping Up with the Kardashians. The press wore Shapiro masks on Halloween, and the USC marching band played the USC fight song in front of the courthouse one day.
It was a bizarre and seductive carnival for all of us involved, distracting at times from the job at hand—defending a man against allegations that he brutally murdered his ex-wife and her companion.
The most memorable times for me were sitting in a conference room in Century City and looking around the room. There was Johnnie Cochran, Robert Shapiro, F. Lee Bailey, Alan Dershowitz, and Barry Scheck. There was Shawn Chapman, Carl Douglas, Sara Caplan, Peter Neufeld, and Bob Blasier. There was Dr. Michael Baden and Dr. Henry Lee. All extraordinary lawyers and experts. All with résumés that had touched history before this trial—the assassinations of the Kennedys, Dr. Martin Luther King Jr., the Serbian genocide, and the civil rights movement. And while much has been made over the divisions in the team, there we all were, looking at the evidence and trying to come up with a unifying strategy.
Simpson had been hit hard on the field for most of his career and knew the value of a front line. So when he hired Shapiro, then Cochran, and then the rest of the attorneys and experts, he wanted the best defense and the best offense he could have. He also wanted to challenge the traditional league rules.
Trials are not only about which evidence you can get the jury to focus on, but what you can get your opponent to focus on. The side that wins is the one that is able to control the focus of the trial. This is a concept called “framing.” It occurs in both political elections and product advertising. And, make no mistake, high-profile cases are political campaigns.
Frames are different than themes. Themes are related to the narrative structure of the evidence while frames are about focus—where you spend your time in trial and how you define the roles of the participants—the judge, jury, witnesses, and your opponent. You can have a great theme, but if the other side has a great theme as well, the jury gets to choose which one they prefer. And in a criminal case, it is always easier for the jury to choose the prosecution’s theme. But if you control the frame—the essential focus of the trial and what jurors should be deciding—it is easier for them to adopt your themes and even to incorporate your opponent’s themes into your frame of the case.
Rather than just defend against the murder charges, Cochran took the position from the very beginning that the trial itself was an “outrageous travesty of justice.” The extremity of his position demanded a response, demanded that the prosecution defend itself against this allegation. Strategically, it called into question every action by the police and the prosecution, as well as every piece of evidence or testimony. This “rush to judgment” phrase became a significant frame for the case. It made us into prosecutors and eventually pushed the prosecution into trying the case we wanted them to try.
Prosecutors usually control the pace of a case. They make allegations and the defense responds. But they were put on the defensive immediately by the defense’s frame of rushing the investigation to find a convenient suspect. They responded by talking about the “mountain of evidence” against Simpson, and this eventually became a problem for them. First, it made them seem arrogant. How could they lose with such an abundance of evidence? Second, it forced them to justify their evidence collection, a defensive posture. Third, this overwhelming evidence demanded scrutiny and time, by themselves two variables that can create reasonable doubt for a jury. The closer and longer that jurors look at evidence, the more they can skeptically pick it apart, questioning its credibility and those that are presenting it.
We often speak about case evidence when we really should be discussing the jury narrative. There are at least eight narrative cases a jury uses to piece together their own story of the case. First, before they hear evidence, it is what each individual juror’s experience and common sense tells them is going on. Then there are the two opening statements, which are the stories the prosecution and defense want to tell. Then there is the prosecution’s case, and the defense’s case, which are similar to but different stories than opening statements. There are then two closing arguments, with each side trying to tell the jury what it all means. Finally, there is the collective story that the jury as a whole negotiates and puts together using their individual interpretations of the seven narrative strings. Eight different stories.
Prosecutors usually think they need to pick a single case theory and stick to it. This fixed approach does not take into account the emergent way that jurors decide cases. With these numerous narratives, jurors are figuratively putting together a composite jigsaw puzzle from two different boxes of puzzle pieces. The fallacy in conceiving of trial strategy as a single set of facts is that jurors accept multiple explanations of factual scenarios all the time. Jurors will also add pieces of the puzzle from their own box of experiences and beliefs. Thus, it is difficult with all of these puzzle pieces to show resolutely that all of these pieces reveal only one picture.
Part of our job in this case was to defuse, diffuse, and confuse the prosecution’s approaches in order to create reasonable doubt. To make every witness our witness to support our frame of the case. To create a clearer and more realistic picture out of the puzzle pieces. To point out where the prosecution bent or cut the pieces to force them to fit.
THE INVESTIGATION
Our two interconnected themes for the police investigation were: 1) Mistrust the Collection, Mistrust the Results; and 2) Mistrust the Messenger, Mistrust the Message. As we knew that Clark and Darden would have to lay a foundation for their evidence by introducing it through all of the police witnesses, these key themes were geared toward trying our case in the prosecution’s case.
Given our jurors’ experience with the police, we knew we had a receptive audience for these themes. The prosecution presented evidence of how detectives Philip Vannatter, Tom Lange, Mark Fuhrman, and Ron Phillips had originally only gone over to notify Simpson about his wife’s death. Then, noticing a small amount of blood on the door handle of the Bronco, Fuhrman had leapt the fence fearing for the safety of those inside the house. This already struck a false chord with the jury.
Said one of the jurors after the verdict, “It seemed the police spent all of this time trying to cover up the fact that Mr. Simpson was not a suspect and how they originally went over there because they had just been to a double homicide and they just wanted to make sure nothing was going on at Rockingham. . . . No one ever goes upstairs. No one ever searches the house. You’ve got no protection. Your guns aren’t drawn . . . Remember, too, that time in the ’89 incident when [Nicole] ran out of the house and she had mentioned to the police that he [Simpson] had guns in the house.” It was obvious to jurors that Simpson was an immediate suspect and that the officers concocted “exigent circumstances” to avoid obtaining a warrant to enter the house. This lost them serious credibility points and tainted how jurors saw the collection of all the evidence.
The jurors also did not like Vannatter and commented that he never looked at the jury when he was testifying. So when Vannatter took a vial of blood collected at Bundy over to Rockingham instead of booking it into evidence at Parker Center, the jurors thought he was counting on what police have been counting on for decades: that they could take a case that looked pretty good and make it look even better. And for jurors, it was no coincidence that the officers had not seen the blood drops in the driveway when they first got to Rockingham, but after they had been there a while, lo and behold, there was the damning evidence.
In a high-profile case, jurors believe that the police will take extra precautions and have higher standards in conducting their investigation. The sheer number of officers and medical examiners at Bundy communicated the importance of this case. Realistically, the more personnel involved, the more chance for mistakes. However, for jurors who had created this higher investigative standard, these errors and inconsistencies started looking like more than simple mistakes. They looked suspicious.
Jurors heard that some of the blood evidence from Bundy was stored in a hot van all day instead of taking it directly to Parker Center to book into evidence. They heard of O. J.’s blood being found on a gate two weeks after the original investigation. They also heard that EDTA, a blood vial preservative, was found on some of O. J.’s blood evidence collected at the Bundy crime scene, including the gate. There was testimony from one officer and investigative reports that did not see or catalog O. J.’s socks (that supposedly contained Nicole’s DNA) in his bedroom, but later the socks appeared right at the foot of the bed. Finally, there was testimony that .08 milliliters of O. J.’s collected blood was unaccounted for, making jurors suspicious that some of O. J.’s collected blood had been planted at the Bundy crime scene.
At the very least, jurors thought that blood, clothing, and other evidence had been mishandled. This provided an easy explanation of how police negligence allowed some of O. J.’s blood to be found at Bundy and how some of Nicole’s blood was found at Rockingham. In forensic circles, this is called cross-contamination. Said one juror, “First the socks [in the bedroom at Rockingham] weren’t there, then they were there. Contaminated. Degraded. Then two weeks later you come back and look, and if there is still blood there [on the gate at Bundy] and you can see it with the naked eye, why wasn’t it seen in the beginning?” In questioning the glove evidence, another juror stated, “I have a problem with understanding why there was so much blood on that glove [Rockingham] versus the other glove [Bundy].”
When you spend a great deal of time on certain areas in trial, you invite greater scrutiny and skepticism from jurors. So when LAPD criminalist Dennis Fung testified for nine days about the collection and testing of the blood, jurors raised their own reasonable doubts just to alleviate the boredom. They also started to interpose their own investigative techniques as pseudo-detectives. One juror said after the verdict, “Had [O. J.’s] cut been as bad as they say it should have been, some of his blood should have been on the Rockingham glove somewhere, but none of his blood was on it.” Trial attorneys are always wise to look at these “shoulds”—these are the personal rules that jurors impose on both evidence and attorneys.
Another common myth in the Simpson case is that the defense, through Simpson’s wealth, was somehow able to outresource the district attorney’s office. This is sheer nonsense. Although Clark and Darden were making all the calls in the courtroom, the Los Angeles District Attorney’s office had dozens of lawyers and investigators, as well as other law enforcement resources like the FBI’s Counterterrorism and Forensic Science Research Unit lab in Quantico, Virginia. Certainly the Simpson case commanded many more resources than a normal criminal trial, but the district attorney spent many more millions on this case than the defendant. This myth also tells us where the balance of power lies when it comes to advocacy in the criminal justice system. We commonly believe that the government and the defendant start out on an equal footing at the beginning of a trial. But nothing could be further from the truth.
This was one of those rare instances where the defense could even start to approach the resources of prosecutors. Investigators Pat McKenna, Bill Pavelic, as well as attorneys Scheck, Neufeld, Blasier, Douglas, and Chapman collectively spent hundreds of hours, all combing through the dozens of boxes of documents looking for inconsistencies in the evidence collection and witness statements. At times, we would get boxes of documents from the district attorney where the files would be randomly shuffled so that we would have to spend hours putting them in order.
And then there was Detective Fuhrman. The furor around Fuhrman was clearly one of the turning points in the trial. But not for the reasons that most people think. In the public’s mind, the controversy around his recorded boasts to a screenwriter about planting evidence, physical intimidation of suspects, and the use of the n-word was a shocking revelation for the public who rely on the integrity of the police. But for our jurors, living where they lived, seeing what they had seen, Fuhrman lost credibility the moment he denied ever using that word. One of our jurors said, “. . . but I disbelieved Fuhrman when he actually said he didn’t use the word nigger. I believed that he was lying then. I hadn’t heard the tapes then. As soon as he said no, I thought, ‘Oh come on. Sure you have.’ He should have come right out and said, ‘Of course, I’ve used the n-word. Tell me who doesn’t use the n-word out there dealing with these people?’ For him to sit up here and pretend that he never used it, it made me feel like just jumping up and slapping him right down right then and there.”
As we have seen time and time again with both political and corporate scandals, the denial is often more costly than the misconduct. Jurors and the public just crave some humility and humanity from our political, corporate, and government leaders. They hunger for an authentic moment when these esteemed leaders accept responsibility for their actions. I say authentic because we have become used to the canned, scripted apology that sounds more like an excuse than real accountability. When I have worked in high-stakes civil litigation with corporate clients faced with a scandal or crisis, I always look for ways for them to create understanding for their actions instead of excuses and to sincerely accept responsibility for their own conduct and those they are accountable for. Had Fuhrman gotten up on the stand initially and confessed that he had used the n-word, his willingness to be honest about something so publicly shameful would have given jurors more confidence in his testimony about the evidence.
But because of Fuhrman’s main role in the investigation, his absolute denial and Fifth Amendment assertion once the tapes became known called into question most of the prosecution’s key evidence in the trial. Jurors are constantly evaluating witnesses on both a verbal and nonverbal level. In fact, they are instructed by the judge in any trial to pay attention to the demeanor of the witness to evaluate his or her credibility. While lawyers tend to like their witnesses to look polished in their testimony, jurors are looking for small, authentic cues to let them know the witness is being real. One of the jurors said about Fuhrman, “I just sort of knew that he was a snake. Fuhrman seemed too clean-cut and too calm, too cool. . . . But when the defense started to interview him, his whole demeanor changed. His breathing patterns shifted and, from where I was sitting, you could see him squirming.”
Although the defense’s leverage started increasing at the beginning of the trial, the power shift at this point in the trial was both significant and unexpected for the prosecution. In the jurors’ eyes, Fuhrman, Vannatter, and the LAPD were actually on trial. And these two detectives were viewed as the source of the most damning evidence against Simpson. For assistant district attorneys who are constantly dealing with public defenders, it is rare for defense attorneys to so aggressively attack police and prosecutors. Especially when defense lawyers depend greatly on prosecutors’ cooperation to cut plea deals. Although the prosecution surely understood the setback with Fuhrman’s testimony, they had no choice but to plow ahead with their badly damaged case.
The glove incident in court, where Simpson tried in vain to put on the gloves found at Bundy and Rockingham, became an indelible image for the journalists and public who viewed the trial from their couches and dining room tables. However, the jurors were decidedly mixed about it. One juror said, “I was sick when I saw they didn’t fit because I just thought for sure that they were going to fit.” This suggested that she had become convinced by some of the other evidence and actually wanted to confirm that Simpson’s gloves were involved in the murders. Another juror was clearly convinced that they were Simpson’s gloves: “Those gloves fit. He wasn’t putting them on right. Sure, you know, they fit.”
When you lose credibility in a trial, jurors become suspicious of all of your evidence. For jurors in this frame of mind, even Simpson’s “opportunity” to commit the murders became questionable. While the prosecution was confident they would show that Simpson could have committed the crime within the allotted one-hour time frame between his attempted cell phone call to his girlfriend at 10:02 p.m. and limo driver Allan Park seeing him at Rockingham at 10:55 p.m., the timing was extremely tight. When all of the conflicting testimony and timeframes from witnesses at Bundy were added in, it created doubt for jurors about the ability of Simpson to commit these murders in the allotted time. For an already doubting jury, it appeared to be more a series of tragic Shakespearean coincidences than a premeditated act on the part of a jealous ex-husband.
In most murder trials, motive is pretty clear-cut. A drug deal gone bad, an escalated argument, a grudge by an employee or a neighbor. But in a long, drawn-out, high-profile trial, the psychology of motive disfavors the prosecution. Prosecutors don’t traffic in the why, often arguing that physical evidence obviates the necessity for motive. “We have a glove. We have his blood. It doesn’t matter why he did it. But (sigh) if you must know, O. J. was jealous and possessive. Here, we’ll play you the 911 tapes again.” And that’s usually where they stop.
But jurors, in their own lives, have a much more nuanced and complex understanding of the nature of jealousy or possessiveness in a relationship. So the why becomes a prosecution weakness because it leaves a series of questions. Simpson looks happy at the recital, so what makes him snap? What makes him decide to kill her now? If he is possessive and jealous, wouldn’t this be more of an impulse killing if seeing her with Goldman sets him off? If it’s an impulse killing, why is he carrying a knife around? These questions beget more questions all in search of the why. This search for motive is more important when it is a public figure accused of the crime, as jurors try to reconcile his or her positive public image with the crime he or she is accused of committing.
As one juror said, “But I could not consider it as a heavy motive in terms of him building up some type of rage because of the time period we heard testimony about. They were always drinking. Here they are, drinking, tempers are flaring, and I think Nicole was a little scrapper herself, not so quick to sit down. My husband is 6’1” and weighs 210. I had jumped on him one evening. He did something I didn’t like . . . But I say women are women and abuse is abuse. I divorced my husband after three years because he came home and jumped on me and I left.”
In these comments, jurors use their own life experiences to make sense of what they are hearing. This again validated our research prior to trial. Women who were divorced and had been in volatile relationships believed that both people in the relationship contribute to its volatility. Although it is unfair that Nicole could not speak for herself, jurors do not necessarily ascribe purely angelic qualities to murder victims. This jury was sequestered for 265 days and they had had almost nine months to ponder O. J. and Nicole’s relationship.
THE ATTORNEYS
Great attention was paid to the personalities of the lawyers in the Simpson case mainly because they were on television. But the public’s perception of the lawyers’ performances often differs widely from jurors’ expectations of the role of advocates. Different jury panels are responsive to different personality types. When Scott Peterson was tried in San Mateo, California, for the murder of his wife and his unborn child, the press criticized the dull and plodding presentation style of the prosecutors while praising Mark Geragos’s more dynamic rhetoric. However, the jury in that case appreciated the clear and methodical way that those prosecutors presented evidence. Scott Peterson was convicted and sentenced to death.
Jurors mainly look to the attorneys for clarity. The attorneys they understand have a better chance of persuading them than an attorney with dramatic flair. When they are bored and confused, they look to attorneys for emotional cues as to how they should feel about the evidence. One Simpson juror said, “Although we all thought Marcia Clark did an excellent job, a few of us had problems with her attitude.” And this tells us about some of the subtle ways that jurors pick up on attitude in the courtroom. The attitudes of the attorneys and the witnesses communicate more loudly than their words. Clark did not trust the jury. And they knew it. At one of the many jury misconduct hearings during the trial when the jury was supposedly exposed to some publicity or errant comment, Marcia asked Judge Ito to dismiss the entire panel. When he refused, she requested they be given lie detector tests. It’s hard to trust someone who doesn’t trust you.
Jurors would also keep paralinguistic score during the trial by looking at the body language of the two camps. One juror commented, “On the prosecution side, Marcia would just get too frustrated. I’m sitting right in front of her and I’m watching all her sighs and that to me was a sign of weakness. You’re here to do a job and if something is bothering you, don’t let them see you sweat. And Darden, too.”
To show how sensitive our jurors were to the issue of race, one of the jurors commented, “When the district attorney’s office first sent Chris Darden down, I remember thinking he was there as a token because the jury was predominantly black. I felt the prosecution needed this particular balance. To me, this was the first ‘race card,’ as it has come to be called, and it was played by the prosecution.”
The jurors responded better to the demeanor of the defense than the prosecution. Jurors thought Clark did a good job but could not relate to her, thus were not as receptive to her themes and arguments. Jurors understood the cadence and linguistic patterns of Cochran, and not just because of his skin color. One of Cochran’s many skills was that he understood more what the jury needed than what the case needed. Like a great director, he knew not only the story that he wanted to tell, but knew how the audience would react to that story and how to develop that story to create the greatest impact on that audience.
The jurors also responded well to the feistiness of New York attorneys Scheck and Neufeld. The combativeness of these attorneys appealed to the personality of this jury and helped to keep them awake during the long and complex testimony about the scientific evidence.
Three blocks away from the Criminal Courts Building, the jurors were sequestered at the InterContinental Hotel and were dealing with their own group dynamic. Juror sequestration in the Simpson case was like taking a nine-month road trip with friends. Rooms were nice, food was good. But after a while, the excitement wore off. The jurors missed their home life, their family, their routines. Small things became big things. They were in the nicest jail in Los Angeles, constantly monitored, guarded, and shepherded from courtroom to hotel cell. They had curfews, conjugal visits, and limited videos they could watch.
As a result, the jurors formed their own ingroups, and feudal rivalries broke out. Jurors were dismissed for misconduct. Deputies were dismissed because of accusations, and jurors staged a protest about their dismissal, first refusing to come to court, and then wearing black armbands in protest.
In all of this, Simpson, like all high-profile defendants, tried to maintain control of the trial, giving stage directions to various attorneys in the case. For public figures, there are two separate trials: one in the criminal court and the other in the court of public opinion. Many celebrities have been in the spotlight for so long they’ve become dependent on the constant feedback of the populace. Naturally, they feel an attack on their public image is an attack on them personally. They have become so identified with this image that maintaining a positive public presence in the midst of the trial becomes almost more important than their ultimate exoneration.
Most criminal defendants relinquish their control to Lady Justice, throwing themselves on her mercy, whim, and convenience. But Simpson had a personal mission of redemption. He was a public figure. He resolved to redeem himself and build his personal salvation from the wreckage of the disastrous pretrial publicity and the damage to his brand. He wanted to testify, to exert his charisma once again. And everyone wanted to hear him. But no one would listen to him. So he couldn’t testify. No matter what he said, his image, his brand, was transformed forever on June 14, 1994.
As we approached the end of the trial, we wanted to refine our final approaches to closing arguments. We conducted another set of focus groups with mock jurors who had similar backgrounds to the actual jury. Since most had followed the trial, we asked them what they most wanted to hear in closing arguments. Blasier presented a prosecution closing, and Chapman the defense. Most importantly, there was a dispute among the defense team as to whether—in closing arguments—we should talk about a wider conspiracy within the LAPD to frame Simpson. Our mock jurors said they did not believe that. From what many of them had seen in the trial, they thought that there was some valid evidence against Simpson, but Fuhrman, Vannatter, and Lange were so eager to nail him that they had tampered with the evidence and directed the investigation to point only toward Simpson. The mock jurors concluded that the rest of the police department chose to turn a blind eye to the detectives’ malfeasance.
The closing arguments in the actual trial were more for the media than the jury. The jury had heard enough over the nine long months of trial. Gerald Uelmen’s “If it doesn’t fit, you must acquit” became a perfect theme. Although jury foreperson Armanda C. dismissed this phrase as not having the great impact that all the pundits claimed it did, it helped to summarize, explain, and justify all of our evidence and arguments in the case. We wanted the jury to remember and use the phrase “it doesn’t fit” in deliberations, remembering the image of the glove. We hoped the combination of this simple, evocative phrase and image would help our opinion leaders in deliberations to convince opposing jurors and uncertain fence-sitters.
But the jurors did not need the drama that both sides provided in their closing arguments. One of the jurors commented that she thought Marcia presented the case well but disliked the emotion revealed by Clark’s expressions, and felt she was speaking down to the jury. “I thought, ‘Jesus Christ. Please. Somebody help me. Get these people to understand that I am not totally illiterate here.’”
Jurors didn’t care for some of the theatrics, the celebrity glamour, and the joking during the trial. One juror said, “After we got out, I was surprised to learn that everybody thought we bought the showboating from Johnnie Cochran . . . after nine months, honey, I don’t need that. When Johnnie Cochran put that hat on his head, everybody wanted to die. You could see stomachs literally moving, trying to contain the laughter. I hated it because at that point you’re supposed to be tying in all evidence and tying in everything.”
THE VERDICT
Jurors are not instructed by a judge how they should deliberate in a given case. We have found that there are two typical types of jury deliberation processes: evidence driven and verdict driven. In an evidence-driven verdict, jurors typically organize and pore over the documents, exhibits, and transcripts in the case, reviewing and debating the testimony and issues in the case. In a verdict-driven deliberation, jurors take a vote and then organize their discussions around that vote. If the jury is mostly in agreement, the majority may spend some time convincing the few jurors who are not convinced or discuss which evidence they are in disagreement about. Not surprisingly, verdict-driven deliberations are much quicker than evidence-driven deliberations.
When the Simpson jury took its first vote, it was 10–2 for acquittal. In a jury of twelve, deliberation takes longer, and there is a greater likelihood of a hung jury if you have three jurors or more in disagreement with the majority. But one or two jurors have a harder time holding out against the consensus. Henry Fonda in 12 Angry Men is a very rare phenomenon.
The jurors in Simpson’s case took about four hours to discuss the case in a verdict-driven deliberation before acquitting Simpson on the charges of first- and second-degree murder.
One hundred and forty-two million people were estimated to have watched the verdict and listened to it on radio, with 91 percent of all viewers changing their channels to watch the outcome.
With 150 witnesses, 857 exhibits, 433 motions, and fifty thousand pages of transcripts over nine months at the cost of an estimated twenty million dollars, it was the longest and most expensive trial in California history. Reportedly when Russian president Boris Yeltsin stepped off his plane to meet with President Clinton, his first question was, “Do you think O. J. did it?”
The jurors had been sequestered for 265 days, sheltered from the media firestorm that had erupted at the verdict. When they made their way through the back corridors of the Criminal Courts Building, they could feel the palpable anger from the sheriff’s deputies. They were loaded into a county jail bus in an underground garage that was set as camouflage to take them to their hotel to gather their things and then to an undisclosed location where they could meet with their families. They were told to keep their heads down. And sitting on a bus where prisoners sat every day, they were not prepared for what they saw when they emerged from that garage. They had not been watching television. “It was shocking,” said juror Carrie B. “When we came out from the underground, there were policemen as far as you could see. Cops on horseback, cops in riot gear.” Armanda C. said, “We’re sitting in that hotel room feeling that O. J. is free. He’s home with his family. He’s laughing. He’s having a good time and enjoying the moment, whatever it was, of freedom and here we are fugitives from justice . . . We’re running trying to hide from the media . . . The way I see it, I’m the one on trial now.”
I was working on another case in Phoenix on the day of the verdict and flew back that evening. I joined the defense team for dinner at Georgia’s, a southern restaurant on Melrose Avenue. It was not a celebration. There is always a mixture of emotions at an acquittal verdict in one of these cases. Satisfaction at the job you have done for your client. Defensiveness because of the anger you will inevitably encounter from people who wanted another verdict. Sadness at the loss of life.
I drove over to Rockingham in Brentwood to speak to Simpson. There were crowds jeering and roaming the streets outside his home, some outraged at the verdict, rich Hollywood kids partying, tourists trying to get a picture of the now-infamous house, trying to sneak a glance at macabre celebrity. Yet another tent in the carnival that had set up its big top in downtown Los Angeles.
I was let in by security at the gate. I stood briefly to look at the place in the driveway where Simpson had been chipping golf balls the day of the murder, where the blood drops had been wiped away, and where the Bronco chase had ended a year and a half earlier. Simpson’s son Jason let me in the door. Simpson was back at home, sitting on his sofa, his Heisman in the case. He was tired and we only spoke briefly. There was no trademark Simpson charm. Just a melancholy and an air of uncertainty, as if to say, “What now?”
On February 4, 1997, in Santa Monica, an all-white jury found Simpson civilly liable for the crimes he was acquitted of a year and a half earlier. President Clinton was scheduled to give his State of the Union address that night, and many networks and cable stations split their screens to cover both the president and the verdict. There was popular celebration and approval of the civil verdict.
There is an expression used by those who teach law and those who work in the criminal justice system, “Better to let ten guilty men walk free than to convict one innocent man.” But we don’t really believe that. We would rather convict ten innocent men. And we have. I always ask those who are still angered by the verdict in O. J. Simpson’s case whether they are similarly upset by the verdicts against Cameron Todd Willingham, Troy Davis, Larry Griffin, and David Wayne Spence. Of course they say no, because they have never heard of these men. Because these men were never on television. All of these men were convicted, sentenced to death, and executed despite tremendous doubt of their actual guilt or abundant evidence of their actual innocence.
Armchair justice is not new. Celebrity justice is not new. But on a stretch of the I-405 freeway on a sunny June afternoon in 1994, Pandora’s box was opened, and the chaotic clash of news media, journalism and advertising dollars, public craving, criminal investigations and prosecutions, celebrity culture, and constitutional protections was unleashed on our unwitting justice system. And we are still trying to close the box.