Color-blind Dreams and Racial Nightmares:
Reconfiguring Racism in the Post-Civil Rights Era
Kimberlé Williams Crenshaw
Of the many startling dimensions of the O.J. Simpson saga, perhaps few are as remarkable as the manner in which Simpson has been transformed into a new symbol of a reconfigured vision of racism. From the day of the murders to the controversial acquittal, the domain of racism has been gradually but unmistakably re-envisioned. Racism, represented during the civil rights era through images such as white lynch mobs proudly displaying their “strange fruit,” or defiant white defendants acquitted by all-white juries for various racial atrocities, has now been represented in snapshots depicting blacks sharing high-fives and dancing in the streets to celebrate the acquittal of one of “their own.”
In this newly configured narrative of racism, the evil manifested in the actions of racist juries of the past is recalled not in the racial contours of the criminal justice system, nor in the tense and oppressive dynamics between the LAPD and the African-American community in Los Angeles, but in the lawless actions of the largely black jury and the outrageous celebrations of hordes of African Americans. In its most extreme articulation, African-American celebration of Simpson’s acquittal is framed as a virtual endorsement of the murders of Nicole Brown and Ronald Goldman. Thus, this “trial of the century” has now come to represent a travesty of justice in which O.J. Simpson, once the embodiment of racial transcendence, is transformed into an agent and beneficiary of an empty gesture of racial payback.1
That Simpson, whose fleet-footedness on the football field was replicated in his nimble transcendence of celebrity culture’s color line, would ultimately be captured by the specter of race that he hoped to escape is one of the extraordinary ironies of this case. Simpson’s transition from color-blind dream to racial nightmare, however, is not merely fate’s version of gallows humor. This irony has much more earthly antecedents, conceived within the very ideological framework that embraced Simpson as a symbol of a color-blind ideal and later spat him out as the embodiment of black criminality and irresponsibility.
The goal of this article is to uncover how the narrative structure of Simpson’s transformation—along with the polarizing discourse on the verdict and a host of other reactions to the Simpson tragedy—was initially framed within the narrow parameters of the dominant vision of race reform, a vision principally organized around the concept of colorblindness.
Although the dominance of this vision was manifested in myriad rhetorical gestures that presumed a race-neutral social context, underlying these performative imperatives were white/black power relations that differed only in degree from those that prevailed in pre-civil rights America, and a range of racist sentiments among large sectors of the white population that were never fully disciplined by the color-blind paradigm. In fact, the convergence of these opposing pressures were factors contributing to the disintegrating consensus around the paradigm even among the sector that constituted its principal supporters: the moderate and liberal elite.
The gaps between the color-blind ideology and the dynamics of racial power are nowhere more acute than in the areas of criminal justice, interracial sex, and especially, the intersection of the two. Thus, while pundits intoned from the beginning that this would not be a race case, the underlying dynamics that formed the material and discursive backdrop of the case guaranteed that race would not lay dormant for long.
Even the scripted declarations that this would not be a race case was itself a constitutive dimension of the racial dynamics of the case. Of course, pundits were correct that the case was not exclusively about race: it was in fact “about” any number of things. It was first and foremost about a double murder. It was also about gender, media, culture, and justice—one can read almost any contemporary issue through its lens. Yet the very terms of the initial denial regarding race reflected an investment in a color-blind ideology that seemed to command an approach to race that noticeably diverged from the manner in which other factors were framed.
The operation of this ideology was suggested by the emergence of the metaphor “playing the race card,” frequently deployed to stigmatize attempts to question the role that racial power might play as the drama unfolded, while efforts to frame the case around domestic violence, for example, were rarely if ever dismissed with a parallel response of “playing the gender” card. Indeed, claims about the role of class, celebrity, or even gender were readily entertained, while similar claims about the role of race were routinely rejected.
In the earliest stages of the case, the wishful belief that race would not play a role was accompanied by a studied practice of denying the rather obvious racial dimensions of the case. Such factors included, for example, the setting of the crime in a city awash in racial tension and civil unrest over racism within the police department, the involvement of a well-known black celebrity in a sexually charged, interracial crime, and the deep patterns of racial and cultural segregation that contributed to sharply divergent views on the integrity of the criminal justice system and the likelihood that Simpson could get a fair trial.
Although these were all race-related conditions that decades of liberal reformism had failed to alter fundamentally, pundits virtually stumbled over themselves in honing to the color-blind imperatives of the dominant race ideology. No better symbol of colorblindness’s simultaneous production and erasure of underlying dynamics of racial power could be found than in the very terms in which Simpson was initially portrayed. Mainstream commentators, perhaps in a preemptive response to possible concerns about whether Simpson could receive a fair trial, were quick to comment that Simpson was not thought of (by whites) as an African American, but as simply a “race-neutral” celebrity. Yet such “assurances” unwittingly revealed an underlying racial logic in which blackness remained as a suspect category that Simpson had been fortunate to escape. Implicitly, a defendant who was thought of as black might well have reason to worry.
Such commentary revealed as well the tortured etiquette of a color-blind performance. In such terms the acknowledgment of Simpson’s blackness was necessarily accompanied by a claim that this blackness was not noticed. This cross-your-heart promise not to notice the obvious constitutes a key dimension of the color-blind imperative that Neil Gotanda aptly labels “non-recognition.” This technique of “noticing but not considering race” implicitly involves recognition of the racial category and a transformation or sublimation of that recognition so that the racial label is not “considered” … in the employer’s decision-making process. Of course, as Gotanda goes on to point out, non-recognition is a technical fiction. “(I)t is impossible to not think about a subject without having first thought about it at least a little.” In reality, “an individual’s assertion that he ‘saw but did not consider race,’ can be interpreted as a recognition of race and its attendant social implications, followed by suppression of that recognition. In other words, although non-recognition is literally impossible, colorblindness requires people to act as though it is.”2
This tortured construction of colorblindness reflected the logic of liberal race reform and the particular ways in which it constructs racism and racial justice. Elites who undertook and shepherded the race reform project understood racism as a distortion of consciousness which was eventually correctable by a normative commitment to colorblindness. As Gary Peller argues, this dominant conception of racism “locate[d] racial oppression in the social structure of prejudice and stereotypes based on skin color, and … [identified] progress with the transcendence of a racial consciousness about the world.”3 Although elites diverged on the question of whether remedial uses of race consciousness were legitimate, there was broad agreement that colorblindness was the eventual goal of racial justice.
On an ideological level, colorblindness eventually emerged as the dominant ideological framework within which the prob lern of racism and the imperative of racial justice would be understood. Yet at the structural level, the broad-scale institutional reforms that would have been necessary to eradicate patterns of white dominance and black subordination were only tentatively approached and eventually abandoned. The combination of the triumph of the discursive paradigm of colorblindness, and the failure of the structural reforms set the stage for the peculiar performative dynamics of the Simpson trial.
Colorblindness required a performance from its adherents in the Simpson case that proved increasingly difficult to sustain as the telltale signs of the aborted institutional reform project emerged. Indeed, as the case progressed, this color-blind performance began to take on the qualities of a D— melodrama in which the audience’s ability to suspend its disbelief is undermined by the cumulative effect of artificial scenery, woodenly delivered lines, misplaced props, and gut-wrenching overacting. The plausibility of the color-blind narrative throughout the trial was compromised by the convergence of a number of factors: the inability of the district attorney to persuasively present racist police and potentially unconstitutional police practices as alternatively nonexistent or inconsequential, the refusal of the celebrated color-blind defendant to offer a color-blind defense, the unwillingness of the African-American community in Los Angeles to suspend their suspicions about the LAPD, and the ultimate refusal of millions of whites to suppress their beliefs about black paranoia, lawlessness, and bias.
This very public disintegration of the color-blind narrative raises, of course, questions about its normative dominance within the equality discourses of the race reform era. Colorblindness figured prominently within the liberal vision of race reform, a vision that framed the objectives of equality and the domains of racial power in narrow terms. Formal equality, constituted through the removal of formal racial barriers and animated by the normative objective of colorblindness, presented the objectives and practice of equality as one in which racial structures and racial identities have been “e-raced.”4 In color-blind ideology, the achievement of equality is measured by the formal removal of race categories across society. The goal of a color-blind world is one in which race is precluded as a source of identification or analysis; its antithesis is color consciousness of any sort. Pursuant to this understanding, the moral force of racial equality is mobilized within contemporary settings to stigmatize not only apartheid-era practices but also efforts to identify and challenge manifestations of institutionalized racial power. It is not necessary, therefore, to redistribute racial capital; color-blind discourse almost singularly achieves its mighty mission by simply suspending traditional signs of race and racism.
Of course, the mere e-racing of the dynamics of racial power cannot wholly disrupt these deep historical and cultural patterns. E-racing neither forestalls the redeployment of racist discourses nor buries the color line beyond discovery. As revealed in the proliferation of commentary that framed Simpson’s acquittal in terms of black lawlessness and irresponsibility, traditional articulations of black otherness are easily recovered. Race, suspended in the buffer zone, remains ready to reappear as an interpretive frame to justify racial disparities in American life and to legitimize, when necessary, the marginalization and the circumvention of African Americans.
The discourse surrounding the Simpson case represents a popularized enactment of this vision of race and its concomi tant definition of racism. In this vision, racism is represented as isolated, aberrational, and relegated to a distant past. The frequent deployment of the metaphor of the “race card,” for example, presumes a social terrain devoid of race until it is (illegitimately) introduced. Racism in this vision remains relevant primarily as an historical concept, relevant only to mark the contrast between an enlightened present and a distant and unfortunate past. Within this racially enlightened era, not only are whites expected to adopt a color-blind performance, but African Americans are expected to approach the occasional discovery of racist actors or actions with cool rationality rather than with hysteria or paranoia.
The progression of the race discourse surrounding the O.J. Simpson trial reflects this intricate pattern of race and reform in the post—apartheid era. I have previously argued that race reform projects organized around such a narrow understanding of the scope of racial power would ultimately reproduce racial hierarchy and legitimize material inequality through invoking, in cultural terms, the same ideological justifications that had previously been rejected as racist when presented in biological terms.5
The logic of white supremacy had been premised on the inherent inferiority of blacks and the equally fallacious assumptions of the superiority of whites by whites. This ideological assignment of differential value to blacks and whites was produced and supported by a wide variety of discourses, including science, religion, and the humanities. Within traditional white supremacist paradigms, blacks were imagined to be lascivious, emotional, and childlike, while whites were regarded as industrious, pious, rational, and mature. Liberal reform consisted of the formal rejection of ideologies of black inferiority and the erasure of barriers that marked off various institutions and other social spaces as black and white respectively. In the post—apartheid world, blacks and whites were deemed formally equal, capable of competing for and within spaces previously segregated by law and culture.
Yet this reform project failed to produce a fundamental redistribution of racial power, nor did it eradicate white racism. While formal equality, along with some race-conscious remedial strategies, did produce a sizable (but vulnerable) black middle class, the mass transformation of the structural and institutional elements of the extant power structure was abandoned before it was ever fully conceived. Clearly one dimension of the retreat from the broader project of racial reform was grounded in a legitimate concern that pushing such a project forward might well unleash volatile and potentially uncontainable reactions from the broader white public. As Alan Freeman argued, “needs basic to the class structure” including maintenance of the myths of vested rights and equality of opportunity, constituted barriers to a more aggressive project of race-based redistribution.6
Moreover, despite the lofty goals of color-blind visionaries, racist sentiments were as often simply suppressed as they were eradicated. Thus while the triumph of the ideology of colorblindness has effectively rendered explicit racist discourse entirely unsuitable within mainstream political debate, a residual degree of racist sentiment among a substantial part of the white population remains amenable to appropriately coded racial appeals.
The disappointing returns from the liberal reformist agenda were prefigured by conceptual limitations within the contours of colorblindness itself. It stood to reason, for example, that if black subordination could no longer be justified by reference to stereotypes of black inferiority, then justifications for white dominance would similarly have to be rethought. Yet the rejection of ideologies of black exclusion and inferiority was not met with any rethinking of the nature and legitimacy of white dominance in American institutions. Racism was framed only in terms of the formal exclusion of nonwhites, not in terms of the privileging of whiteness.7 Formal equality merely mandated the formal “erasure” of the institution’s whiteness, primarily through the removal of explicit racial barriers.
Under this narrow conception of reform, limited deals were made that gave selected blacks some of the social capital of whiteness, but the cultural economy continued to disproportionately reward values, perspectives, and practices traditionally associated with white institutions. To be sure whiteness was transformed, but in the most limited of senses: white schools would be just “schools,” white firms would be “equal opportunity employers,” and white society would simply be “society.” Equality would not require a fundamental dismantling of any formally white spaces, or the redistribution of white social capital. Race equality simply meant that blacks would have a shot—though not necessarily an equal shot—at getting some for themselves.
Perhaps the ingredient that made the whole story plausible, at least to many whites, was the inclusion of a small number of African Americans into the new and improved American fantasy. Although the opportunities presented by the promise of erasure were inaccessible to many African Americans, some would receive conditional passes to cross racial lines. Nowhere was this logic more carefully orchestrated than in celebrity culture, where its ultimate expression was the very public e-racing of the few blacks who had “crossed over” with the standard blessing of “we don’t think of them as black.”
The racial line, however, was still discernible even in the discourse of racial transcendence. The “other side of the tracks” from which the lucky few “crossed over” was still racially defined space. For O.J. Simpson, the trip originated from the most concentrated of racially defined spaces: the projects. Simpson clearly had traveled from a raced space, yet the promised land that he crossed over into was represented as a colorless terrain. Despite claims to the contrary, the terms of Simpson’s migration never rendered his race entirely invisible. Rather, like old money—new money relations, the e-raced would be treated like those who were born into racial privilege, though everyone knew the difference between the truly privileged and the newly entitled. This was the color-blind deal, unless, of course, something were to happen where the race lines simply had to be redrawn.
This limited scope of racial equality endorsed by the liberal paradigm rejected broader and more progressive understandings of racial power. These broader visions understood racism not solely in terms of racially motivated discrimination, but instead as patterns of cultural and institutional power, exercised by dominant groups against others. Thus the problem of racism was not limited to the practice of discrimination or a mere departure from colorblindness: it was reflected in patterns of subordination that had become naturalized and entrenched within a post-apartheid society. Mere formal equality and its superficial erasures could not respond to this dimension of power.
This alternative understanding of racial power rejects the color-blind imperative as well as the premises underlying the standard articulations of intergrationism. Gary Peller observes that a contrasting vision of race and racial formation rejects integrationist premises that blacks and whites are the same. “[T]he idea of race as the organizing basis for group-consciousness asserts that blacks and white are different, in the sense of coming from different communities, neighborhoods, churches, families and histories.” In this alternative conception of race, “differences between whites and blacks [are located] in social history.” In constructing race as an historical and social phenomenon, Peller rejects the notion of race consciousness as an inherently suspect distortion of consciousness. Peller and other progressive critics of color-blind ideologies neither shy away from the reality of subjective difference nor do they reject the remedial deployment of race-conscious policies. The former is to be presumed in a world in which social and historical differences between races continue to manifest; the latter is necessary to push forward the broader project of structural and institutional reform in light of these differences.
Yet the rejection of color-blind ideology is not solely the province of race-conscious progressives. In part to offset potential contradictions between the formal discourse of racial equality on the one hand and the social and political realities of black marginalization and disempowerment on the other, race has gradually reemerged from both the center and the right as a discourse of legitimation. The continuing marginal condition of African Americans within the post—apartheid society has been a stubborn fact that can not be dismissed. Either the claims of equality’s promise have been false and much more radical remedial strategies are warranted, or there is something wrong with blacks that formal equality simply cannot “fix.”
In this context have emerged racial reality bites,8 essentially a redeployment of rejected stereotypes under the new and improved frame of cultural or moral difference. Race conscious ness has reemerged from the right in contemporary political discourses to explain racial inequalities in cultural and even moral terms. This re-racing of inequality implicitly challenges a key plank of the liberal paradigm that presumed the essential similarity between races, while assumptions and beliefs about racial difference had previously figured within color-blind paradigms as racial prejudice. In the new “frank” talk about a host of issues, blackness reemerges as a repository for a range of pathologies. Even biology has been reintroduced in public discourse as constituting an essential racial difference.9 From AM radio’s generic shock jocks to right-wing academics Dinesh D’Souza and Charles Murray, re-racing is the thrill of today’s social discourse. Talking “honestly” about crime, unwed motherhood, and morality essentially means talking about race. The process of having e-raced blacks now provides the moral distance from the racings of the past so that one can rest comfortably in the belief that, although talking “honestly” now sounds suspiciously similar to the pre-civil rights justification for everything from sterilization to lynching, this race postreform discourse is different. Un-eracing is not old-style racing; it is merely putting certain commonsense observations and facts back into social discourse in the spirit of candor rather than prejudice.
Against this backdrop of the ideological paradigm of colorblindness, and its underlying dynamics of racial power, numerous dimensions of the discourse around the Simpson case can be better understood. Not only did this ideological framework shape the diverging black/white investments in Simpson, but color-blind assumptions also framed black perspectives as “biased” in contrast to a putative “objective,” “Westside” analysis. The absolutely disastrous attempt by the prosecution to cover up obvious credibility problems and the bizarre performance of Christopher Darden are similarly related to a contradiction between performative rhetorics and institutional realities—only this tension is grounded in the rhetoric of bureaucratic control of the police and prosecutorial commitment to rules of constitutional protection. These complex dynamics enormously complicate the meaning of the Simpson verdict, yet within the racialized travesty narrative, they are reduced to a singular plane of injustice.
The Simpson case is a racial drama written within the contours of the dominant color-blind paradigm. Simpson’s high-profile e-racing, and his subsequent re-racing in the wake of his arrest for the murder of Nicole Brown Simpson and Ron Goldman, represents a popular embodiment of the dominant conception of racial reform, including its contradictions and its ultimate embodiment of historical patterns of racial power.
As an icon, O.J. Simpson has occupied a unique category as the ultimate racial boundary crosser: he emerged from the black underbrush and crossed over into race neutrality. Said one commentator: “Simpson had long reigned as one of America’s best-loved black celebrities. The football hero had crossed the color line to become what marketing experts call race neutral.”10 One may wonder, however, how it is possible to cross a racial line that presumably divides black and white and simply become “neutral.” Neutral functions here as a euphemism for white; indeed both terms have been used somewhat interchangeably to describe Simpson’s popularity.11 This unconscious equating of whiteness with neutrality is even more pronounced in the description of, as one commentator put it, Simpson’s “taste” in women.12 “Simpson possessed a race-neutral style, which included dating white women …”13
Here, a specific racial preference is described as “race neutral,” while a hypothetical preference for black women would presumably be race specific. The very terms of these descriptions reveal that Simpson’s image was not grounded in a “race neutrality” as such, but in an apparent ability to neutralize his blackness by acquiring the accoutrements of whiteness.14
This popularized image of Simpson as an icon of racial neutrality reveals the manner in which whiteness, maintained as a dominant default sensibility, is legitimized as race neutral even as the border that Simpson crossed is readily acknowledged to set apart racial spaces. Apparently, one crosses from blackness into “neutrality” as one becomes acceptable to, familiar with, and embraced by whites.
The conditional status of Simpson’s crossover position, however, was revealed in the almost reflexive recovering of his raced past in the many speculative (and premature) analyses of his fall into criminality. Invoking Simpson’s past racial identity, one commentator offered:
But for all of their talent and skill, they [Simpson’s lawyers] cannot return the permanent smile upon a race-neutral face America used to know as O.J. It is a different face we see now, a face from another time, another place. An essential face that predates the toney address and the wife who stepped out of a Beach Boys song. [His white friends] exist on the far side of the divide now. They can offer him their best wishes. But they cannot help him. If he is to save himself, O.J. Simpson may have to find himself Regardless of the verdict, that journey—not the hairs, the gloves, the hat, the blood, the DNA—may prove to be the more revealing pieces of an evidence trail that ultimately took a kid from the projects on Potrero Hill to the mansions of Brentwood … and back again.15
This quasi-morality tale, while gesturing toward some deeper meaning, ultimately reduces itself to a singsong wag that all of Simpson’s lawyers and all of his men couldn’t make O.J. white again.
Pundits throughout the nation produced similar analyses, wondering in disillusioned tones whether the guy next door was still the O.J. everybody thought they knew, or was he really the essential “other” from across the tracks.
Was he the Hertz pitchman with the eternal smile who company surveys revealed was “colorless” to the American public? Or did he still carry much of the cruel persona of the gang leader he had been, the kid who pulled robberies and who once said, “It wasn’t a weekend if there wasn’t a fight. I enjoyed it.”16
Here, violence is located in opposition to Simpson’s acquired colorlessness; his gang affiliation easily positioned the “other” O.J. that “we don’t know” as a black thug from the other side of the tracks. Elsewhere, Simpson’s wife beating was similarly framed as a marker of his essential otherness: “Simpson beat his ex-wife at least once. Suddenly, it seemed, an old friend has become a stranger.”17 In this classic othering of domestic violence, men who beat their wives don’t live next door, they don’t play golf, and they don’t come into our living rooms. “We” simply don’t know them.
Nowhere was Simpson’s symbolic “return” to his essential blackness more graphically illustrated and debated than in the Time magazine cover that darkened his face.18 Many African Americans saw in the illustration proof of their suspicions that race would certainly shape public discourse around the case. Even whites who steadfastly denied that race would have anything to do with the case were troubled by Time’s cover illustration. Time ultimately issued an explanation for the illustration in which it denied that the artistically inspired darkening of Simpson was racially motivated. Of course, Time’s disclaimer of conscious motivation was entirely plausible. However, its belief that this was responsive to concerns about the racial underpinnings of its artistic choice revealed how anemic the dominant understanding of racism really was.
Nonetheless, the criticism singularly directed against Time was another dimension of a massive inability to even recognize, much less interrogate, racial narratives proliferating elsewhere. Indeed, Time’s controversial cover only visually represented the story that was disseminated by Newsweek and repeated in several other venues. The frequent references to Othello, for example, and the ready connections drawn between the savage actions of which Simpson was accused and a troubled pre—race-neutral past all suggested that the killings marked the reemergence of a suppressed ghetto persona. Although Time simply offered a graphic depiction of the narrative that its competitors were hawking elsewhere, somehow the artistic illustration of this racial thinking went a little too far too fast.19 Re-racing Simpson had to be a bit more gradual: it needed to be written and spoken before the story could be “artistically rendered.”
“One of My Best Friends Was Black” Much of the early white response to the accusations against Simpson was mournful. Most articulated this tone as an expression of sadness that a hero had fallen. Yet the constant pairing of this attitude with the invocation of Simpson’s “race neutral” appeal seemed to suggest that something more was lost in Simpson’s fall. As Meri Nan-Ama Danquah surmised:
White people liked O.J. They liked liking him, too. Liking him proved they were not racists. O.J. redeemed them.
Whites never feel that O.J. hated them. For decades, pictures showed him wide-eyed and a little open-mouthed like a kid glancing up from a birthday cake. He was race-neutral, like Colin Powell or Nat King Cole.20
Simpson and perhaps a few other African Americans reinforce wishful beliefs that American society has reformed, in spite of the marginalization of masses of African Americans who live lives largely separate and remote from the majority of white Americans. Like the all-purpose refrain “some of my best friends are black,” liking Simpson proved that however one reacted to other blacks, or however blacks were generally positioned in society, it had nothing to do with racism. Simpson confirmed not only that blacks could rise above their historically consigned status, but that whites would accept them when they managed to do so.
African-Americans’ investment in Simpson was not nearly as celebratory as that of many whites.21 The realities of racial disempowerment and social marginalities are not so easily cabined and tamed by the mere existence of an O.J. Simpson. The pervasive sense of the marginal status of black America, along with the reality that there is little remaining commitment to improving the economic and political status of African Americans, render it generally unlikely that Simpson’s elite Brentwood lifestyle could convince most African Americans that social life was truly open and fluid. Little of Simpson’s Brentwood existence could deflect the burning realities of contemporary black life. So why would Simpson be meaningful to African Americans at all? Indeed, as many whites somewhat self-servingly argued in the verdict’s aftermath, Simpson had done little for the African-American community.22
Despite Simpson’s distanced social existence, many African Americans did maintain some investment in him—not as a symbol of society’s transcendence of racism but, rather, as a representation of one of the few “concessions” made by white America in the wake of black demands for societal change. One of the concessions that African Americans won from the massive mobilization during the sixties was the inclusion of minuscule numbers of African Americans into celebrity culture. In order for formal equality to be a meaningful social policy, the formal rejection of white supremacy would have to be conveyed through mass culture as well as through law.
Thus, some blacks gained a place in the self-representation of American culture far different from those prescribed for blacks—the maid, the criminal, and the downtrodden. Indeed, for many blacks who lived through the reform decades, one of the most significant ways that life is different now is that there are African Americans in celebrity culture. During the lifetime of even the youngest baby boomers, black figures in the media were so rare that all African-American activity would grind to a halt when a black appeared on TV. The call would go out, “black on TV” (actually, at the time, it was “colored on TV”), and people would literally run to the set to catch a glimpse of the momentary representation of black America on the public stage.
There seemed to be an implicit understanding that the fate of the individual colored person on TV somehow was tied to the interests of the group. There was some truth to that. The performance of the “colored on TV” was symbolically important not because their success meant that any African American could rise to the ranks of celebrity, but because many believed that African-American success on the public stage might combat the widespread beliefs in black inferiority. The performance was ameliorative in more personal ways as well. Celebrity blacks broke barriers that were frequently unimaginable to those raised in apartheid America. For some blacks, there was enormous pride in seeing folks who looked like them participating in the American fantasy. Yet, there was also concern that any poor performance would reflect negatively on the race.23 Many observers held their breath or whispered silent prayers that the “colored on TV” would fare well.
Potentially more important in understanding black investment in celebrities, many of whom African Americans had little input in choosing, was that many believed that at the end of the day racism might intervene even in the lives of these chosen few. To be sure, Simpson clearly won a lottery in the sense that he among millions would be welcomed into the fantasy life of American celebrity culture. His life was different from that of most African Americans. Yet many African Americans believed as well that Simpson could not fully escape the reality of his black skin, a reality that was seen as a burden or a barrier no matter how fast or surefooted he might be. Thus, Simpson’s fall from grace was potentially meaningful because it suggested that even the few who won the celebrity lottery might still be divested of everything on the basis of the one thing they continued to share with the rest of African Americans—their race.
These diverging white and black perspectives on Simpson set in motion a collision that guaranteed that this case would on some level be about race, regardless of Simpson’s guilt or innocence. To whites, the fact that Simpson had been embraced as the embodiment of a color-blind ideal preempted any possibility that race would or should play a role in the case. To many African Americans, Simpson’s race-neutral persona did not immunize him against any and all forms of racism, especially when his color-blind image began to tarnish. Indeed, to some African Americans, the very fact that the Bentley-driving, golf-playing, white-womanizing Simpson was in such trouble raised the possibility that the features that made Simpson appear to be race neutral to more elite whites rendered him potentially vulnerable to the racist sentiments of others.
In fact, the race-neutral space in which Simpson was temporarily suspended was bound to collapse. When it did, the discourse about what this collapse meant and who was responsible for it gave rise to even more racial divergence surrounding the case. The case would reveal deep conflicts about the nature of American society and would uncover the widely divergent attitudes on such basic matters as the trustworthiness of police and the legitimacy of the criminal justice process. After the smoke cleared it would also be revealed that underlying the dominant paradigm of color-blind equality lay a trove of white racial power exercised against the black community through a disciplinary rhetoric of bias and uncivility.
A central contradiction within contemporary reform ideology is manifested through the invocation of neutrality as the normative measure of fairness and equality, even as racial power is exercised and expressed. Throughout the Simpson trial, the “race card” metaphor effectively captured the formal dimensions of the colorblind performance and revealed it to be an effective means of camouflaging the dynamics of racial power. Under the metaphor of the “race card,” raising the issue of racism was characterized as a disingenuous act that was especially dangerous and unethical in circumstances surrounding the trial. Raising the question of racism thus evoked an immediate response of disciplinary zeal.
Early in the pretrial period, The New Yorker published an essay by Jeffrey Toobin in which Detective Mark Fuhrman’s troubling record of racism was revealed along the outlines of a possible defense strategy.24 Although the evidence uncovered by Toobin revealed a scandalous disregard by the Los Angeles Police Department for the lives of blacks and Latinos with whom Fuhrman was likely to come into contact, many commentators were far more troubled by the fact that the pages of the highly respected New Yorker magazine would be used to peddle a damaging and unlikely story. Critics in and outside of the media criticized Toobin, giving tabloid publishers the opportunity to welcome Toobin and The New Yorker into the fold.25
Simultaneously, legal commentators and pundits expressed their requisite outrage by calling for professional sanctions against the defense team even before the evidence was ever presented.26 Toobin himself labeled the defense “monstrous,” and sought to justify the publication of the story as newsworthy on these grounds. At this point, it became evident how race was to be positioned in mainstream discourse around the Simpson case. No longer used solely to frame the rise and fall of Simpson, race was reconfigured as a defense ploy, a “card” unscrupulously played rather than a potentially substantive issue to be explored. The fierce tone of the criticism against the defense team suggested the underlying operation of another metaphor, that of crying fire in a crowded theater. Los Angeles, it was argued, was rife with racial tension following the Rodney King beating, the acquittal of the officers involved, the subsequent civil disturbance, and the Reginald Denney trial. To those Los Angelenos anxious to put those unfortunate events behind them, framing the defense around a racial conspiracy seemed the embodiment of irresponsibility.
The circumstances that rendered the “race play” so irresponsible, of course, simultaneously belied claims that the racist frame-up theory was simply incredulous. In the wake of the King beating, the blue-ribbon Christopher Commission had uncovered a troubling culture within the LAPD that condoned racist behavior and jeopardized the rights of the people of Los Angeles, particularly African Americans and Latinos. But the facts uncovered by the Christopher Commission’s report proved to be far less compelling against the political realities of strong Westside support for the LAPD. Some of the Commissions’ recommendations were implemented; however, resistance throughout the ranks is significant. Tensions between the LAPD and the African-American community continue to exist, yet beyond the formal implementation of community policing and the provision of sensitivity training, there is little political pressure to do more. Elite concerns about brutality and tensions between the department and the black community waned as the Rodney King fiasco receded into history. Concerns about hampering the police effectiveness in fighting crime once again took center stage.27
The framing of the Fuhrman controversy as the inexcusable reason for Simpson’s acquittal provides apt illustration of the “race card” metaphor. It also suggests the operation of an intersecting discourse of police reform, a discourse which, like colorblindness, achieved a rhetorical dominance that is at odds with underlying realities. The widespread characterization of the Fuhrman issue as a simple race play first overlooked what should have been a police scandal. Moreover, the prosecution was fully aware of Fuhrman’s credibility problems: at best, Fuhrman was simply a skillful liar, and at worst, Fuhrman was a rogue cop, clearly not the kind of witness upon whom to rest a high-profile case. Yet Marcia Clark presented Fuhrman in a manner that dripped of righteous indignation. Defending Fuhrman’s credibility, Clark proclaimed, “In a very hideous and damaging way, they have attempted to speak of Mark Fuhrman with the most vicious of allegations concerning racism.”28
Subsequent revelations that Fuhrman not only lied about his use of the word “nigger” but also bragged about engaging in gross police misconduct were simply cabined and excised from the case.
Clark’s decision to prop up Fuhrman, along with other decisions that the prosecution made, revealed the extent to which police practices that breed mistrust within the African-American community are so woven into the fabric of criminal justice that pulling this thread might cause an entire case to unravel. It also illustrates yet another dichotomous relationship between a reform-based ideology and underlying realities, in this instance, between the ideology of tight bureaucratic and constitutional control of the police and actual police practices on the ground. In this sense, the courtroom performance of “appropriate police procedures” parallels with the performance of “colorblindness.” Indeed, the constitutional and bureaucratic rules applicable to police procedures grew out of a reformist project that developed simultaneously with liberal race reform. Yet like colorblindness, these reforms are honored principally through a discursive performance that sharply diverges from the underlying realities.
Efforts to subject police procedures to constitutional norms grew out of a broader project of state modernization. Within the context of policing, the objectives of modernization involved reducing arbitrary police power and making policing less dependent on sheer violence. Courts issued constitutional rule designed to curb police brutality and unchecked investigatory powers. Constitutional rules mandated that police follow specific investigatory procedures, provide legal representation at defendants’ requests, respect limitations on searches and seizures, and maintain strict limitations on the use of deadly force. Additional bureaucratization brought into play greater reliance on scientific evidence in criminal proceedings and a greater investment in rehabilitation over retribution. Like colorblindness, rhetorical adherence to the rules of constitutionally imposed restraints has been largely successful. Yet such rhetoric is belied by the everyday practices of “modernized” policing along with the prosecutorial reliance on the fruits of these practices. It seems to be taken for granted that on one hand, there are elaborate rules constraining police prerogatives, and that on the other, such rules often appear to be disregarded.
This contradiction between rhetoric and reality was rather amazingly revealed by the police investigation and their subsequent testimony in the Simpson case. Given the department’s recognition from the very start that this would be a high-profile case, it stands to reason that the officers would investigate this one “by the book.” But the pattern of shading the formal rules seems to have been so deeply ingrained that the investigators appeared to have forgotten what the book actually required. This is most obvious in the detectives’ warrantless entry into Simpson’s estate. Vannatter’s later application for a search warrant—filed several hours after the police had occupied Simpson’s property—was based on inaccuracies that were bound to come out in the subsequent trial. As the defense later uncovered, the police investigation was full of other irregularities—some of them of constitutional magnitude, others which seemed to compromise the most basic rules of investigatory integrity. If only to avoid embarrassment, it would seem that investigators minimally accustomed to following basic procedural rules would have proceeded much more carefully.
Although the officers’ on-site investigation diverged from the constitutional and bureaucratic commands of police procedure, their courtroom testimony reflected a full awareness of the performative aspect of the relevant rules. Indeed, Vannatter’s testimony regarding the warrantless search fell within the very narrow exceptions to a warrantless entry, provided his testimony was believed.
It is doubtful, of course, that anyone believed his story, just as it was doubtful that anyone believed Fuhrman’s testimony regarding his use of a racial epithet. But the circumstances seemed to require that everyone (except, of course, the defense) act as though they did, or else key evidence in the case would have been thrown out. Thus, Clark’s over-the-top defense of Fuhrman was joined by yet another implausible declaration of rule compliance and police credibility.
One might wonder, nonetheless, why Marcia Clark risked putting Fuhrman on the witness stand in the first place, thus placing the prosecution’s case in unnecessary jeopardy. One might also wonder how any credit was ever given to the implausible claim made by Detectives Vannatter and Lange that their initial decision to leave a fresh crime scene and rush over to Simpson’s estate was prompted by their desire to inform Simpson of his ex-wife’s death and subsequently to intervene in a possible assault in progress. Indeed, jurors have indicated that many of their doubts rested with the prosecution’s straight-faced reliance on doubtful police testimony. Forewoman Armanda Cooley expressed the doubts of many jurors who questioned Vannatter’s testimony: “Why would he even get up there with that lie? Why didn’t he just tell the truth? Don’t tell me you’re going to go to the house because you think maybe the same thing is happening over on Rockingham and you’re concerned about the Rockingham family. And then the first person you send in the door is the daughter. If you’re so concerned, you’re the police, why don’t you walk through the door with your guns drawn saying what the spiel is you give.”29 Defense team member Alan Dershowitz had earlier prompted a storm of controversy by suggesting that “testilying” was a common practice among police.30 Yet the relative ease with which the police told, the prosecution presented, and the judge accepted so implausible a story seems to affirm that “testilying” is so institutionalized and so taken for granted that everyone involved in the criminal justice process must be willing to suspend their disbelief and act as if these stories were plausible.
It is here that the failed project of color-blind race reform converges with the limited scope of police constraint. One of the reasons why testilying is a workable way to resolve the contradiction between the rhetoric and reality of modern policing is that support for police reform was always tempered by the fear that such constraints might compromise the effectiveness of police in containing crime. In light of the limited ideological and material scope of race reform, the concrete fear of crime continues to reflect a racial dimension. The problem of testilying, by contrast, raises few concerns among the elite and other populations who are largely exempt from police procedures or have so rarely been subjected to them that they have little personal concern about the threat such practices represent.
Thus, the viability of testilying as a means of resolving what to many seem to be conflicting demands upon the police reflects particular relations of race and class power. Race figures prominently in this equation by investing police with a formal credibility that trumps the testimony of many African Americans and others who are most likely to be familiar with the realities of an unpoliced police force.
The formal commands of constitutional protection and fairness are thus honored through a superficial performance that frequently involves the police, the district attorney, and the judge. The likelihood that this courtroom script diverges substantially from what actually happens outside usually warrants little commentary. Yet in the context of the Simpson case, the business as usual attitude of the police and prosecutors no doubt contributed to the reasonable doubts of the jury. Indeed, two distinct features of this case proved to be fatal to the prosecution’s fortunes: first, a jury that was unlikely to suspend its disbelief of implausible narratives, and second a defendant with enough financial resources to uncover the many divergences between the courtroom script and the actual investigation.
Within this context, the role that Assistant District Attorney Christopher Darden played deserves closer scrutiny.
Assistant District Attorney Christopher Darden’s own portrayal in this debacle is particularly remarkable because it weaves together a chaotic mélange of his many attempts to reconcile his desire to win this case with his intimate knowledge of police irregularities and his foreboding sense that both Fuhrman and Vannatter were disasters waiting to happen.31 This early knowledge is particularly remarkable in light of Darden’s subsequent condemnation of the very jury that he knew would doubt the credibility of Fuhrman and Detective Philip Vannatter. Darden understood, perhaps more than his colleagues, why the jury might be wary of Fuhrman and also doubt the veracity of the other officers. Darden had previously investigated police misconduct and had struggled to prosecute LAPD officers who had committed the kind of police abuses Fuhrman was accused of. Moreover, Darden acknowledged the possibility that his colleagues might have used him as a tool to bolster the credibility of a controversial witness to preclude a potentially negative jury reaction. Recounting Clark’s decision to assign both Fuhrman and Vannatter to him, Darden responded,
Damn. We had talked about this, but to hear it was like getting kicked. Those two were the most controversial witnesses in the case, the two who could turn the case, lose it for us.32
Considering the possibility that the assignment was part of the prosecution’s own racial strategy, Darden remembers wondering
if my colleagues thought they could “sneak” Fuhrman and Vannatter through by giving them to the black guy. Did they think black jurors were so stupid that they would believe any witnesses I presented just because I was black too? It was ludicrous. Black jurors would do what any black person would do, what any person would do. They would evaluate the testimony and—if they didn’t believe a witness—it wouldn’t matter if Martin Luther King put him on the stand. The only thing that having me “sneak” these witnesses would accomplish is that the jury would decide I was being used and I would lose any credibility I had in front of them.33
Notwithstanding this momentary lucidity, Darden ultimately rejected the possibility that his colleagues had used him in their own strategic race play.34 As a consequence, Darden’s clear recognition that jurors would not buy the Fuhrman whitewash was wholly jettisoned in Darden’s postverdict condemnation of the jury. His candid assessment of the jury’s likely reaction to his role was either forgotten or dismissed, perhaps as a consequence of his confidence in Clark’s integrity.35
Convinced that Fuhrman was lying about his use of the epithet, Darden eventually declined to examine him, but was nonetheless satisfied when they managed to keep out damaging information about him.36
Darden’s argument to Judge Lance Ito concerning the inadmissibility of Fuhrman’s use of racial epithets hinted at his ultimate rejection of the jury as blinded and incompetent. In trying to “save” the case by suppressing evidence of Fuhrman’s racism, Darden argued before Judge Ito, and seemingly to the world, that the African-American jurors would be so blinded by the epithet that they would be unable to evaluate the evidence rationally. If testimony that Fuhrman had used the epithet were admitted, Darden argued, “It [would] blind this jury. It [would] blind them to the truth. They won’t be able to discern what is true and what is not. It [would] affect their judgment. It [would] impair their ability to be fair and impartial.”37
This thinking prompted Richard Yarborough, an English professor at UCLA, to comment, “To suggest [that] black people are so sensitive to the term they are disabled is extraordinary.”38
In replying to Yarborough’s observation, Darden explained:
Yes, that was extraordinary. And it wasn’t what I said. I had to argue that jurors would lose focus, that the case would turn into a race case, that the entire trial would be diverted from Simpson to Fuhrman. And, as far as I could tell, that was exactly what happened.
However, Darden’s own statement supports Yarborough’s analysis. Arguing that the jurors would “lose focus” merely upon hearing a racist epithet is tantamount to arguing that they would be disabled. Moreover, Darden’s logic explicitly delegitimized black subjectivity where it diverged from that of whites, thereby anticipating the disparaging postverdict attack on the jury after the verdict. Yet, despite Darden’s deployment of a racially derogatory contention designed to facilitate the prosecution’s interests, Darden was not condemned as playing a race card by pundits and critics. Instead, some pundits viewed his argument as a heroic attempt to save the case from the threat of black irrationality, or an emotional “acting out.”
In making this argument, Darden managed to gain credibility as a black insider while crossing the very boundaries that he claimed other African Americans could not. He directly invoked his own identity as an African American to authorize his claim that blacks just can’t see straight when they hear the word “nigger.” Yet he, apparently, was immune to this group-based impairment, perhaps due to some special knowledge or a higher moral commitment to justice. Indeed, Darden reveals that he assumed the mantle of the truth-telling insider who alone could decode and thwart the defense’s attempt to send a secret message to the jury. In Darden’s view, it was his willingness to call a spade a spade that contributed to Cochran’s unprincipled assault on him. “I had truth on my side, all right. That’s why the defense had to come after me. I was standing up alone, screaming, ‘This is going to be a race case.’”39 Indeed, the tragedy, as told in Darden’s account of the trial, was that despite his heroic efforts he was unable to save justice from being devoured by uncontrollable racial sentiments unscrupulously released by Cochran and company.
Darden’s heroism as the lone black defender of justice was further invoked in his portrayal of a jury so revealed racially myopic that they could not begin to empathize with the victims. Said Darden, “Throughout, we read in their faces a lack of sympathy for Nicole Brown. We were reminded every day that idealism and tolerance aren’t always welcome in the real world.”40 As evidence of this hardened attitude he complained that when the graphic crime-scene photos were displayed, “O.J. Simpson turned away. Denise Brown wiped her eyes; Tanya Brown covered hers. Kim Goldman began crying. The jurors looked on impassively.”41
Darden unwittingly revealed his own compromised position as he wrapped himself up in a discourse of justice, unaware that his simultaneous behind-the-scenes commentary revealed that his journey to justice is perfectly compatible with propping up perjuring police officers, insulating them from attack, and building a case on their testimony. In order to prevail, Darden had to rely on, indeed, even hope for, success in presenting untrustworthy cops as credible. He thus participated in the very institutionalization of police dishonesty that compromised the integrity of the case against Simpson. Darden seemed to jettison his personal and professional concerns with such dishonesty. Commenting on Clark’s temporarily successful presentation of Fuhrman as an honest cop, Darden confessed, “We all felt great. The day was almost over and Fuhrman was handling F. Lee Bailey easily.”42
Darden was fully aware, however, that allegations about Fuhrman’s racism were probably true. Although it was a truth he was prepared to suppress in the courtroom, it was one that he was willing to toy with outside the purview of the jurors.43
The detective sat leaning against the jury box during a recess. I whispered to Marcia, “Follow my lead.” I put my arm around her shoulder and pulled her head to rest on my chest, and we walked in Fuhrman’s direction. His face turned bright red and he stared at us.
“What are you doing having that guy hanging all over you like a cheap suit?” Fuhrman asked Marcia after I’d left. I took it very seriously; perhaps Mark Fuhrman hadn’t changed after all.44
Yet nothing about this encounter prompted Darden to reassess the propriety of attempting to whitewash a person whom both Darden and Clark knew to be racist.45
Despite Darden’s past efforts to challenge both the dishonesty and the racism within the LAPD, the institutionalized expectations and the particular hand he was dealt in this case proved to be difficult for him to negotiate. In this sense, one could construe Darden as having been institutionally entrapped. Caught on the one hand between the institutional expectations that he would perform “as if” colorblindness and constitutional proceduralism prevailed and on the other hand, a profound and troubling recognition that there were dimensions of this case that clearly belied this claim, Darden was understandably frustrated.
Although Darden’s very public entrapment was obviously quite difficult to negotiate, his position was not unlike that of any number of African-American professionals subject to the demands of being a team player within institutions where the rules of the game seem to require a painful silence about the racial dynamics of the institutional project. Yet empathy for Darden’s difficult position ends precisely where he reduces the complexity of the case and his role in it to a singular and simplistic attack on the black jurors. To be sure, Darden’s disappointment in the verdict was to be expected given his sincere belief, shared, in fact, by many other African Americans, that Simpson did murder Nicole Brown Simpson and Ronald Goldman. Others—including some of the much maligned black jurors—understood the verdict as reflecting not so much Simpson’s innocence but serious prosecutorial problems produced by slipshod investigatory practices and incredible police testimony. Yet Darden heaped the entire responsibility for the disappointing outcome on the easiest target—the largely black, female jury. It is as if Darden dished up a meal with an obvious contaminant in it and hurled insults at the jury for their refusal to swallow it.
Darden’s crusade against the putative black bias that corrupted the verdict is not only unfortunate, it is also wide of the mark. One would have hoped that given his unique position as a prosecutor intimately familiar with two basic realities in criminal law—that money talks and that police do not always do what they are supposed to do—he would direct his energies toward working for the institutional reforms more likely to instill confidence in the police across all sectors of American society. One doesn’t need the discourse of “empty payback” and unresolvable racial divide to push this agenda forward. Indeed, it seems hard to fathom why Darden, given the misfortune of his own institutional entrapment, would not seek to explain to those who were similarly disappointed by the verdict that this outcome constitutes further evidence that the system desperately needs fixing. And rather than positioning the black jurors as irrational racialists, he could effectively amplify the argument made by Dershowitz and others that the problem cannot go away as long as prosecutors and other actors in the criminal process continue to hide behind dubious courtroom performances.
The intense emotional reaction to an apparently unexpected verdict prompted a critique of the jury that was articulated in terms that recall formally rejected antiblack stereotypes. Experts, commentators, and laypersons alike described the jury as lawless, immature, emotional, and irrational. As George Will revealed:
There was condescension, colored by racism, in some of the assumptions that the jurors would be incompetent jurors and bad citizens—that they would be putty in the hands of defense attorneys harping on race, that they would be intellectually incapable of following an evidentiary argument, lack the civic conscience to do so. But those assumptions seem partially validated by the jury’s refusal to even deliberate.46
In reproducing these racial stereotypes, it appeared that the formal rejection of white supremacy’s racial binarisms, along with Simpson’s acceptance in the “neutral” world of white culture, was conditional and ultimately revocable.
Chris Darden’s denunciation of the jury in similar terms was all the more damning (and self-elevating) due to his racial insider status:
Should I say that, above all, I was ashamed of a jury that needed just four hours to dismiss the lives of two people and a year’s work, a jury that picked a dreadful time to seek an empty payback for a system of bigotry, segregation, and slavery?47
Darden’s own mistakes, although readily admitted, did little to temper his criticism of the jury. He continued:
What could I say to Nicole and Ron? That I was sorry their murderer went free because of the deep chasm that racism and slavery have carved in this country? That I was sorry that Johnnie Cochran had dragged them into that dark pit? That I was sorry about the gloves and the other mistakes I had made?48
These very mistakes that so distressed Darden did little to dissuade him from ultimately laying responsibility for the acquittal at the feet of jurors. Marcia Clark echoed the same theme, broadening her attack on the jury to include even colorblind liberals. In her own version of racial realism, she complained, “Liberals don’t want to admit [that] a majority black jury won’t convict in a case like this.”49
Much of the reaction was organized around paternalistic themes that sounded the note of disapproving parents of irresponsible children. Stock racial images grounded antidemocratic sentiments that blatantly condoned the circumvention of black decision making and anticipated the “correct” decision of a more reasonable (and white) Westside jury. Like juveniles, African Americans were to be divested of discretion until they learned how to exercise authority responsibly.
The level of apoplectic outrage was remarkable in light of the sober warnings throughout the trial that the verdict could go either way. Yet postverdict harangue against the jury continued to rehash what the prosecution had claimed to be a mountain of evidence that should have proved Simpson’s guilt beyond a reasonable doubt. Indeed, as even Darden admitted, the prosecution was hoping for a few holdouts; conviction was by most accounts highly improbable. The prosecution’s chief strength was an impressive array of scientific evidence—DNA tests confirming that Simpson’s blood was found at the Bundy address, and that Goldman’s and Brown’s blood were found in Simpson’s Bronco and on socks and gloves recovered from Simpson’s estate. Yet despite claims that this apparently solid evidence rendered any doubt about Simpson’s guilt simply unreasonable, pundits warned long before the jury retired that the evidence was convincing only to the extent that the jury had confidence in its integrity. There were, of course, weaknesses in the prosecution’s case. Taking into consideration an unconvincing and credibly contested time line that the prosecution seemed (unnecessarily) wedded to, an incomplete narrative of domestic violence that was abandoned early in the case, the inexplicably varying concentrations of DNA in Simpson’s blood, found at the crime scene, the presence of preservatives found in the disappearing/reappearing socks, the unauthorized transportation of Simpson’s blood back to Rockingham, recorded irregularities in the harvesting and preservation of blood samples, the last minute explanation for Simpson’s missing blood, and, of course, a glove that didn’t fit, the proof of Simpson’s guilt beyond a reasonable doubt was, as the experts acknowledged, not as open and shut as laypersons might have believed. Indeed, although some commentators attempted to maintain an objective attitude about the case, the most common prediction was that the jury would wind up deadlocked.
Yet despite the pundits’ sportslike commentary on the strength of the prosecution’s performance throughout the trial, (touchdowns, home runs, and knockouts were frequently used to keep score), trial watchers joined many Americans in expressing shock and outrage at the not-guilty verdict. Lambasting the jury for what many regarded to be a “racist decision,” critics readily reduced the value of Simpson’s million-dollar defense to the simple playing of the now familiar “race card.” This racial interpretation, however, flies in the face of numerous facts, the least of which is that if the jurors’ reaction was as simplistically race-based as some of the more outraged critics seemed to suggest, then Simpson grossly overpaid his many expert lawyers. Such simplistic criticisms failed to acknowledge that it was Simpson’s resources that allowed him to capitalize on the state’s mistakes. Even critics of the verdict agree that Barry Scheck and Peter Neufield’s masterful dissection of the state’s blood evidence was damaging. Moreover, simplistic racial explanations fail to account for the rather unremarkable fact that black juries regularly convict black defendants. Equally troubling is the rejection of numerous factors that would complicate the easy resort to racial scapegoating as the sole explanation for Simpson’s acquittal. Not only were prosecution mistakes elided in this narrative of racial revenge and injustice,50 so too was the participation of the three nonblack jurors. If the verdict was truly about black revenge for white injustice, what then explains the apparently zombielike response of the white and Latino members of the jury? As Pat Williams mused, “it’s almost as though … the white jurors must have been mugged by the black jurors—this is clearly only racial passion.”51 Moreover, what can be said about the millions of white Americans—twenty-five percent of the white population; more whites than the total number of African Americans in the nation—who also agreed with the verdict? If it is implausible to believe that the three nonblack jurors—and the millions of whites and other nonblacks who were similarly unconvinced about Simpson’s guilt—were acting out racial revenge rather than reasonable doubt, then we must question why similar doubts, when articulated by black jurors, were immediately denounced as biased, irrational, and lawless.
The verdict apparently caught many commentators with their color-blind shades off, for the otherwise sober voices of reason almost reflexively reproduced the very racial polarity that they had worked mightily throughout the trial to suppress. In the venting that followed the verdict, commentators not only claimed white opinion as the “public” opinion, it defined whites who supported the verdict out of the category. Newsweek’s Mortimer Zuckerman, for example, proclaimed in the aftermath of the trial that “(a)lmost at once it became clear that while Simpson had won with the jurors he had lost with the public—or most of it.” To put a finer point on his claim, Zuckerman opined, “The white community, along with some blacks, has done what the jury failed to do: it has ostracized Simpson.”52
To draw an analogy from America’s miscegenation rules, one drop of reasonable doubt apparently makes whites black. Simultaneously, a few “responsible” blacks who did not support the jury’s verdict can be figured as “right-thinking white.”53 Whites with reasonable doubts about the prosecution’s case are apparently excluded from the “white reaction,” or from what the public thinks.
The reaction and coverage of the reaction reveal even more about the process of racing. For example, cameras trained on blacks and whites for a “reaction” missed other possible dichotomies, particularly between men and women, or professionals and working-class people. Hence, in studying the media readings of the Simpson story we can discern how racialization occurs at the moment of reading itself. Additionally, the media’s “racial narrative” of the events instituted itself as the discursive real, in part by subordinating other social nodes of meaning such as gender onto an overdetermined and monolithic racial narrative. There were many more factors that simultaneously operated to structure public opinion around the case than could possibly have been captured by race alone. Indeed, many of these alternative factors, such as gender and class, had been deployed earlier to mark what this case was really about; yet in the final analysis, all were abandoned in a headlong rush toward racial recrimination. The nip and tuck necessary to fit the entire picture into the narrowest of racial narratives facilitates re-racing and the vilification of the jury’s verdict as the illegitimate product of a black subjectivity. Indeed, this reduction of a complex set of factors into one simplistic racial plane arguably presents precisely the evil of “playing the race card” that so many had bemoaned throughout the course of the trial. Critics might have regarded this postverdict “racing” as the most powerful of “race card” plays, devastating because few recognize the sleight of hand that shifts from the purportedly high ground of colorblindness to an old-style practice of racial blame. Yet in keeping with the redeployment of race consciousness as a discourse about black pathology and irrationality, racing reemerges in the aftermath of the trial of America’s most race-neutral black, an “honest” assessment of a racial reality.
The temptation to lambaste the jury was apparently difficult for critics to resist, even for those who firmly believed that the prosecution’s poor performance and judgment was inexcusable. For example, Vincent Bugliosi, the prosecutor who successfully prosecuted the Charles Manson case, was scathing in his criticism of the prosecution.54 Yet his harsh critique of prosecutorial incompetence paled in comparison to his characterization of the jury’s misdeeds. According to Bugliosi, a white jury could have compensated for the prosecution’s mistakes and would have done the right thing.
Bugliosi may be correct in assuming that a white jury would have convicted Simpson, yet he fails to acknowledge that such a verdict might have itself constituted bias for the prosecution, especially given the prosecution’s weak performance. Other commentators routinely compared the Simpson jury’s verdict to what a more responsible Westside jury would have done without even vaguely acknowledging that the putative difference between the two not only does not render this jury’s decision inherently suspect, but to the contrary, may render suspect the fictional Westside jury. Indeed, it is fair to ask why so much more criticism has been directed against black jurors (and blacks in general) for closing their minds to the possibility that Simpson might be guilty than against whites for closing their minds to the possibility that the police might have planted evidence against him whether he was ultimately guilty or not. Indeed, the largely black jury may compare favorably to the putative Westside jury. If the abysmal performance of the prosecution and the LAPD was typical, the Simpson jury might be credited for imposing higher standards on police and prosecutorial performance. As Alan Dershowitz acknowledged, “The jury is our only realistic protection against police perjury, and if black jurors are more likely than whites to be open to finding police perjury, then that is a racial ‘bias’ that promotes justice.”55 Elsewhere he notes:
We were pleased that we had a largely black jury, which might be more open to arguments about police perjury, evidence tampering, and so on—arguments we believed were correct. If that is playing the race card, then the race card should be played because the fact is that police do routinely lie and do sometimes tamper with evidence, and it is good that juries include people whose life experiences make them receptive to these possibilities …56
Thus, as Dershowitz allows, racial difference is not inherently problematic. Moreover, difference itself is symmetrical: if blacks and whites do interpret the evidence differently—and as discussed above, it is easy to overstate the role that race might have played here—white views and black views are nonetheless equally different from one another. The distance one must travel between the two is the same no matter the end from which one starts. Yet in the discourse of the white riot, black subjectivity is not only rendered as bias or a distortion that effected this particular jury, it is a problem that requires prophylactic measures effecting the broader community.
Expressions of white outrage in the wake of the verdict revealed the utter contingency of white commitment to the colorblind ideal. White anger at the expression of what appeared to be a distinctively black subjectivity apparently justified their own rejection of colorblindness. This break with the color-blind performance was probably not surprising to many African Americans. The tension between the high moral position of colorblindness and the ubiquitous presence of the racially encoded discourse around the trial was present from the start; many black commentators had acknowledged as much. Indeed, perhaps the most significant “difference” in racial attitudes concerns the differing degrees to which the conradictions in color-blind discourses are recognized or denied.
Yet the white riot not only marked the collapse of the color-blind performance, but also reflected a broader receptivity among elites to a racially explicit discourse positioning blacks as a problem population. The reactions ranged from the moderate proposal of black circumvention to a more reactionary response of censure and punishment. These responses might be seen as a replay of an earlier debate concerning African Americans that was framed in the language of benign neglect on the one hand and aggressive discipline and containment on the other.
The case for circumvention was grounded in criticism of the prosecution for trying the case in a locale that was likely to produce a largely black jury. Darden himself contributed to this critique by acknowledging that “downtown” juries, by virtue of their race and class makeup, were notoriously different from Westside juries. Rather than undertaking the more difficult task of addressing the conditions that create the differing racial sensibilities that apparently contributed to the verdict, critics called for reforms to circumvent the black community. Reforms such as a nonunanimity rule were offered along with proposals to limit the discretion of prosecutors to try a case outside the jurisdiction in which the crime occurred, and proposals to ban the use of “political appeals” in closing arguments. The black circumvention theme was similarly expressed when attorneys for the Brown and Goldman families assured an angry white public that chances for a conviction in the civil trial were higher given their strategic decision to file their suit in the largely white city of Santa Monica, thereby avoiding the pesky problem of biased black jurors.57
The circumvention theme is not new in the repertoire of responses to white concerns about black bias in the context of certain racially charged cases. Circumvention was clearly afoot when the first Rodney King trial was moved to Simi Valley. Indeed, across the country, many of the cases involving controversial acquittals of police officers accused of unjustifiable homicide have been removed to white suburbs, effectively circumventing nonwhite decision making. Over the course of just a few weeks in November of 1996, three separate cases of police abuse involving people of color resulted in a vindication of the officers involved. In none of these cases did the aggrieved communities take part in the judgment. Responsibility for the deaths of Johnny Gammage in Pittsburgh, Pennsylvania, TyRon Lewis in St. Petersburg, Florida, and Anthony Baez in Bronx, New York, was determined by white decision makers whose distance from the “problem” was thought to render them nonbiased.58
The circumvention discourse following the Simpson case was unique, however, in its explicit invocation of race as the legitimate justification for the proposed actions. By contrast, the articulated rationale for the removal of the first Rodney King trial was a concern that too much pretrial publicity had compromised the officers’ right to a fair trial. Of course, this argument was utterly transparent given the absolute saturation of the airwaves with the tape of the King beating. Moreover, under this argument, it would seem that the Simpson civil trial would, at minimum, have to be postponed, since any person who has not been affected in some way by the omnipresence of the Simpson trial over the last few years might be a bit too removed from the events of the day to be a useful juror. Yet at least in the King trial, as well as in the Gammage and Lewis trials, there existed a background sensibility that required that the articulated reason for the removal invoke concern about pretrial publicity rather than the avoidance of black decision making.
The color-blind justification for circumvention, as unbelievable as it was in the King, Gammage, Lewis, and Baez cases, gave way in the aftermath of the Simpson verdict to a “racial reality” bite. The frank talk supporting circumvention seems to be: “If it’s gonna be done right, it’s gotta be done white.” The frankness of the circumvention discourse is useful in revealing the failure of the color-blind paradigm to dislodge the (usually) submerged norm of whiteness and the power relations it grounds. Difference measured from this hidden norm is marked as illegitimate bias; difference measured from black subjectivity is objectivity. In these terms, the circumvention is not regarded as an expression of sheer power; instead, it is an exercise of rationality. Difference, of course, is not inherently problematic. It is partly in recognition of the value of difference that juries are meant to be drawn from a cross section of the community. Yet difference strains at the logic of the color-blind paradigm that casts a suspicious eye on assertions and enactments of racial differences. Aggregate divergences between black and white opinion cannot be comprehended as normative within this paradigm, and thus subjective divergence is marked as bias. Because of the dramatic divergence in perspective—not explainable under a formal color-blind paradigm, it appears as bias rather than normatively—acceptable differences in viewpoint are negated. Indeed, the association between this framing of black subjective divergence with bias and lawlessness was so significant that some critics went as far as to equate the Simpson jury with the twelve white men who acquitted the murderers of Emmett Till in 1955, and the murderers of the three civil rights workers in 1964. Critics seem wholly unable to distinguish between white approval of racist murder and the presence of reasonable doubt. Yet this difference was seamlessly woven into a discourse of deviance in the postverdict recriminations.
The most troubling dimension of the postverdict racial discourse was not the collapse of the color-blind performance, but rather the manner in which the abandonment of colorblindness morphed into old-style forms of disciplinary zealotry not entirely disconnected to a lynch mob sensibility. For example, columnist Ben Stein opined that “the whites will riot the way we whites do: leave the cities, go to Idaho or Oregon or Arizona, vote for Gingrich … and punish the blacks by closing their day care programs and cutting off their Medicaid.”59 Another columnist reported in grave tones that a Hollywood executive planned to teach blacks a lesson by firing them from their jobs as cooks, janitors, and the like: “Let them see what Cochran can do for them,” he intones. The actions of the “white rioters” were duly reported under the cover of notable and legitimate commentators who sternly reported how whites were reacting to the verdict. Such “reports” were often devoid of any critique: the transmission of the message to both blacks and whites was facilitated by the apparent disinterest of the reporter. The messenger bore no personal responsibility for the content of the message, while the speakers—the racial actors who would carry out the racial revenge—were shielded from view. The media thus became the medium for chilling racial threats that were articulated as mere descriptions of the sentiments of others. The racial backlash was presented as the sobering consequences of the verdict, facts of life that blacks now would have to confront.
In both the circumvention and the punishment discourses, black divergence from colorblindness serves to ground the legitimacy of the white reaction. This points to the ways in which the narrow vision of power underlying colorblindness facilitates reactionary politics that would no doubt trouble the elites who put the paradigm into play. This is not to say, of course, that a broader, more dynamic view of racial power would have cut such responses off at the pass; one could imagine a white riot taking place under a regime organized around a different paradigm of racial justice.
Yet the emphasis on colorblindness sets progressives back a move, as it did in the discourse surrounding the Simpson trial. Rather than beginning with an honest recognition of existing power relations and proceeding to an analysis on whether and how those relations would shape the dynamics of the case, colorblindness marginalizes progressive responses by centering the color-blind paradigm as neutral and decrying all discussions of race whether conservative or progressive as racism.
Lurking beneath the general white riot was a gender specific discourse which added an additional element to the indictment against the verdict. Like other participants in the diatribe against the black jurors, the purported absence of color-blind justice was the offense, but among those who marched under the exclusive gender banner, the failure of the jury was not simply a wrong against “neutrality.” It was specifically a wrong committed against women—in particular, victims of domestic violence. The divergence between race and gender which marked the early discourses concerning the trial was reproduced most aggressively among those who claimed that the jury’s color consciousness precluded their ability to see what this case was really about, that is, violence against women. Paradigmatic of this sentiment was Tammy Bruce, president of the L.A. chapter of NOW, who, invoking “the bodies of Ron and Nicole … rotting in their graves,” claimed:
This case was not about race. It was about domestic violence … This jury decided to not do what it was impaneled to do. They decided these two lives were expendable, and they decided to move through the hatred and bigotry that Johnnie Cochran asked them to. And they are … an embarrassment to this city….
They became a jury of Mark Fuhrmans, of people who cared nothing for justice.60
Bruce did not stop there. In a later discussion on Nightline, she asserted, “what we need to teach our children is … not about racism, but is about violence against women.” A focus on domestic violence would, moreover, provide, “a needed break from all that talk of racism.”61
To NOW’s great credit, President Patricia Ireland condemned Bruce in stern terms:
These statements have blotted NOW’s otherwise impressive record of committed activism in the fight for racial justice and equality. It pains me that these unfortunate and unwise comments have tainted NOW’s reputation and our relationships with people of color and our social justice allies.62
Despite the specific censuring that Bruce received, and the rather obvious tone of her later gaffe—a comment that she did not have the time to discuss domestic violence “with a bunch of black women”—Bruce believes that her crusade is grounded in a legitimate and defensible color-blind vision. Refusing to apologize for her remarks, Bruce stated, “There is nothing to retract. I have made it clear that this issue affects all women, including women of color. Of course, this issue is colorblind.”63
While Bruce was certainly the most inflammatory of the feminist critics, she was certainly not alone in expressing absolute bewilderment at what was presented as the inexplicable blindnesses of black women. Columnist and law professor Susan Estrich, for example, found the celebration of black women “unbelievably troubling.”
I mean, I watched pictures of black women cheering this verdict, and I thought to myself, how can they cheer. Don’t they know that they will be and they are on the receiving end of this kind of garbage?64
The Bruce narrative, along with more moderate feminist objections to the pro-Simpson black women, exemplifies how the absence of an intersectional orientation regarding race and gender can produce politically counterproductive discourses. These responses to black women’s support of Simpson raise problems on at least two levels. First, at a rhetorical level, they completely reinforce the standard polarizations of race and gender that proved so unproductive in the Thomas/Hill hearings. By this account of the Simpson case, race and gender were locked in a zero/sum game in which a win for blacks was a loss for women, and vice versa. Of course, the second problem is obvious: this vision either erases black women, or alternatively, positions black women as simplistically and unjustifiably race-conscious.
Within the context of the Simpson verdict, the race consciousness among African-American women, rather than the institutionalized practices of marginalizing women and domestic violence, authorized this affront to women. While the jurors’ verdict itself bore no inherent dimensions of black women blindly loyal to the home team, critics wedded images of battered black women celebrating Simpson’s release to the fact that the jury that acquitted Simpson was largely black and female to support a claim that black women “just don’t get” gender. Thus, black women became the target of some expressions of white female rage.
On one hand, this expression of frustration leveled against black women should come as no surprise. Feminists—white and African American—have been discussing and debating the nature of the tension between black and white women for years. There is, however, a subtle difference in the register and the direction of the articulation of this tension in the aftermath of the verdict. It is almost a common expression to hear African-American women say to white women, in one way or another, “you don’t represent us.” The standard response, politely but sometimes dismissively articulated, is usually, “why we certainly intend to, and we will make every effort to be more inclusive in the future.” In this context, however, the dialogue is a bit more like white women declaring to the black female jurors, “You didn’t represent us!” and the black women saying, “We never said we would!”65
This admittedly reductive account obviously belies enormous complexities not only in what the verdict represented, but most important, in what the raced and gendered reaction to the verdict reveals. Indeed, it is simply not news to say that there is and has been a gulf between black women and white women, a gulf that extends to those white feminists who invoke “all women” as their constituency and black women who do not connect with the standard white feminist agenda. But the Simpson case and its aftermath raise important questions about how the gulf is constituted and what its implications are with respect to ongoing efforts to ground antiracist and feminist politics in a manner that emphasizes the intersections of systems of power rather than one that endorses notions of mutual exclusivity. White feminists often agree with African-American feminists on this point in principle (which is frankly more than what can be said of African-American male leadership), but in the messy trenches of real politics, that vision is easily obscured. The difficulty is complicated, moreover, by the obvious fact that there is something behind the reluctance of many African-American women to endorse feminism; but that something is certainly more complex than the simplistic and self-promoting discourse forwarded publicly by Bruce and, more than likely, endorsed privately by others.
In order to validate the targeting of Bruce’s rage against the black female jurors, one would have to believe that it was widely understood that this case was really about domestic violence, other juries not blinded by race would have seen it that way, and that this jury’s refusal to convict Simpson was simply an inexcusable act of choosing race over gender. Under this view, the role of broad institutional patterns of marginalizing women fade, and black people end up being the source of resistance against the urgency of addressing the tragedy of domestic violence.
These premises are faulty.
First, even those closest to the prosecution’s case did not, initially, understand this case to be about domestic violence. None other than Denise Brown, Nicole’s sister, who later testified to witnessing several episodes of spousal abuse between the Simpsons, told the New York Times that Nicole “was not a battered woman. My definition of a battered woman is somebody who gets beat up all the time. I don’t want people to think it was like that. I know Nicole. She was a very strong-willed person. If she was beaten up, she wouldn’t have stayed with him. That wasn’t her. Everybody knows about 1989. Does anybody know about any other time?”66 Denise was not alone in doubting the relevance of domestic violence in the murder. Lead prosecutors Clark and Darden initially approached the case as a standard murder without any domestic violence overtones. As Darden tells it, in the hustle and bustle of the formative period in building the prosecution’s case, the district attorney’s domestic violence experts waited for days to lobby the head prosecutors to focus on domestic violence. In the end, they literally camped out in Darden’s office to win an audience with Clark and Darden.
Of course, Brown, Clark, or Darden should not be singled out for their initial failure to conceive of Nicole Brown Simpson as a battered woman. This failure to perceive battering is itself a feature of this pressing social problem. Indeed, Hertz officials might well have been speaking for the majority of Americans when it proclaimed that “[w]e regard it as a private matter to be treated as such between O.J.’s wife and the courts.”67 This tolerant approach to Simpson’s battering was a reflection not only of his celebrity status, but also of a broader societal attitude which was reflected in the criminal disposition of this case.
Thus, if black female jurors approached the case with an orientation that was unsympathetic to the prosecution’s efforts to tie the murders to domestic violence, they certainly were not alone in this regard. Yet the rhetoric of blame would suggest that the jurors rejected the domestic violence frame as a reflection of a simplistic racial disposition against it.
The indictment against the jury also overlooks obvious weaknesses in the prosecution’s presentation of the domestic violence evidence. Indeed, these jurors saw little that would have significantly altered any predisposition to see the domestic violence incident from 1989 as marginal to the case. Even Darden admits that the domestic violence evidence was not convincingly presented. Coming in essentially as an afterthought, the prosecution then led with the history of abuse, organized around the metaphor of a long fuse that eventually exploded on the night of June 12. From the jury’s vantage point, however, the fuse fizzled out, as much of the evidence promised was never introduced to the jury. The prosecution’s case was further weakened when Judge Ito sanctioned the prosecution for failing to meet their obligations to turn over their witness list to the defense. They were then forced to hold their domestic violence witnesses until the end of their case. By that time, the case had dragged on too long and Darden, who would have been the lead counsel on this issue, had already lost considerable credibility within the prosecutorial team in the aftermath of the failed glove demonstration.
The tremendous outpouring of support for the prosecution and the harsh criticism against the verdict can be marshalled as evidence that the case dramatized to an uneducated public the magnitude of domestic violence. Tammy Bruce rode high in the saddle of this rage, declaring that Simpson was not welcome in Los Angeles and was not welcome “in our culture.” To be sure, many Los Angelenos did in fact isolate Simpson, and those who could did drive him out of their milieu. But it is doubtful that the rejection of Simpson stands as a statement of society’s intolerance of batterers. Indeed, the flames of this reaction seemed to be stoked less by concerns about domestic violence per se, and more by the strong belief among many that a guilty man went free and used his race (and money) to do it.68
The case was not, therefore, a massive teach-in about domestic violence, despite the number of people who are convinced of Simpson’s guilt. Clearly, millions of Americans thought Simpson guilty, but it is doubtful that their beliefs were informed by a new understanding of domestic violence. The case remains amenable to any number of narrative frames that are only remotely enlightening with regard to domestic violence. For example, older man/younger woman, “has-been” sports hero/woman in her prime, Othello/Desdemona—all these longstanding narratives figured in various accounts of the case, yet none of them necessarily reflects any substantial shift in the public perception about domestic violence.
The polarization between the racial solidarity line and the domestic violence line as an overlay for pro-acquittal versus pro-conviction opinion is further refuted by the fact that among those who also supported the verdict were no doubt millions of whites whose support has little to do with blind racial solidarity. In fact, there are probably many men of all races who probably sympathized with Simpson’s rage at the thought of losing his young wife to a man half his age. One writer captured this male rage in a friend’s reaction to Simpson’s initial arrest:
“THAT … THAT … THAT … (expletive),” he shouted about Nicole Simpson. “Look what she’s done to O.J., spending all his money, letting that young guy drive Juice’s Ferrari. How’d she think he’d react? What did she think would happen?”69
Thus, critics who frame the verdict in terms that position the jury’s lack of colorblindness against the preferred vision of gender consciousness are themselves engaged in an interpretive process that simply collapses complex issues of gender into a singular dimension of race. Ironically, this is precisely what they have claimed the jury has done.
A more complicated and useful analysis can, however, proceed from the claim that black women deliberately and selfconsciously chose race over gender. Many black women did credit Simpson’s potential victimization by police more readily than Nicole Brown Simpson’s victimization by Simpson. This race over gender line, of course, is not new. But the problem—and the solution—is far more complex than some exasperated white feminists would admit.
As an initial matter, the analysis must move beyond the reductive dimension of the “race over gender” rhetoric which obscures more than it illuminates. This oft-repeated claim distorts the fact that race and gender figured on both sides of the acquittal-conviction debate. It is thus simply unrevealing to say that the black women who celebrated Simpson’s acquittal were chosing race over gender. To the extent that the reactions of some African-American women can be read as signaling something deeper than celebrating the acquittal of a man they believed to be “not guilty,” they were expressing an identification of interest with a particular configuration of race and gender over a different one. To fail to acknowledge the intersection of race and gender in shaping the symbolic appeal of Simpson on the one hand, and Nicole Simpson on the other, is to take black maleness as representing “race” and white femaleness as representing “gender.” This conceptual and political mistake simply replicates the domination within race and gender discourses of black men and white women, respectively.70
This reductive framing also obscures the extent to which the choices presented marginalize black women from the very start. From the celebrants’ vantage point, their own configuration of race and gender—that of a black female—provided no subject position or narrative structure to choose. Thus, identification with the figure that most closely symbolizes their sense of shared oppression was almost inevitable. Among those who made a choice, the identification with Simpson was far from inexplicable.
My goal here is not to glibly explain away the battered women who cheered Simpson’s acquittal. Instead, it is to bring into sharper relief the suppressed dimensions of “race versus gender” construction in order to replace with more sober analysis the widespread pejorative denunciation of many black women’s political allegiances. The “they don’t get it” critique of black women presumes that there is a clear answer to the question of whether black women should align themselves with black men or white women in matters relating to sexual abuse and violence. This is, however, an enormously complicated issue in which the better option of black women identifying with themselves is marginalized from the very beginning. The debate is also off center in that it equates the frequently distinct practices of racism and sexism. For example, racial oppression involves state repression and policing that has historically incorporated within its logic specific narratives connecting black criminality with deviant sexuality. Racism has thus been exercised and constituted through expressions of state power, often through the police and the courts. The logic of patriarchy works to marginalize domestic violence and other forms of sexual abuse through a discourse of privacy. Thus, the state’s relation to gender power has traditionally been expressed through a failure to intervene against patriarchal power expressed in the putatively private sphere.
In the absence of discourses that center specifically on black women, an important and unresolved question is whether the oppression of black women is more closely linked to the policing of black men within the public sphere or the marginalization of white women within the private sphere. Gender solidarity with white women requires a primary identification with the private and personal over the public and collective group struggle. When forced to choose, it is not entirely clear which is the primary locus of black women’s disempowerment.
The reality is that both dimensions of disempowerment shape the lives of African-American women. When these analyses are not readily intersected, or when the symbols which render them mutually exclusive remain stubbornly resistant to representation, it is neither irrational nor morally reprehensible for African-American women to choose primary identification with one configuration over the other.
This analysis is not meant to deny the presence of varying degrees of hostility between black women and white women. Moreover, this tension is likely reflected in some of the attitudes held by some black women against Marcia Clark as well as Nicole Brown Simpson. The “Angels Wings” representation of Nicole probably struck a particular sour note among some black women in that its construction of Nicole as an essential innocent is belied by the fact that Nicole first came into Simpson’s life as the teen-aged “other woman” who eventually replaced Simpson’s African-American wife.71 Other factors may also have distanced black women from Nicole. Evidence that Nicole was violent toward her domestic help certainly did little to seal any gender bond between Nicole and many black women, nor to support the impression of Nicole’s essential innocence. Moreover, Nicole’s casting in many media as “stunning blond,” half of a “dazzling couple” made palpable to many the tyranny of racially skewed aesthetic standards that predetermined that most African-American women not be similarly regarded.
This rejection of the angelic positioning of Nicole in death is by no means an endorsement of her murder. Instead, it is simply a recognition that many African-American women may be less likely to allow the tragedy of her death to work backward to sanitize her life. Nor were they likely to identify with her solely on the basis of a shared identity as women. It seems therefore undeniable that Nicole’s whiteness had some bearing on the likelihood that black women would take up the implicit invitation to read themselves into the tragedy as stand-ins for Nicole. They were more likely to relate to the narrative in a number of other ways. The reasons for this, however, are more complex than the simple frames of “racism” or “blind loyalty” reveal.
To read this case as indicative of whether black women “get” gender also participates in the same color-blind performance that suppressed and distorted so many other dimensions of the case. Irrelevant in the color-blind field of vision are obvious historic and social factors that tell much more about why many black women identified primarily with Simpson. When one squarely confronts the fairly different narrative frames of first, “the black man caught within a potentially racist criminal proceeding” and second, “the white woman brutalized by her black obsessor,” it seems obvious why one appears to be more compelling than the other. This choice thus should not be cast to support a definitive inference that black women are neither engaged with nor concerned about gender domination.
There are, however, other high-profile cases that do suggest that the many black women approach gender politics hesitantly, and may well be overly loyal to black men by virtue of the “black man caught in the racist criminal justice” frame. The gendered deployment of racial solidarity has led many African-American men and women to support Mike Tyson, Mel Reynolds, and Clarence Thomas.
The Simpson case, however, did not produce the same explicit articulation of a male-centered racial solidarity that characterized debates within the community around the Tyson rape trial or the Thomas confirmation hearings. In those earlier cases, the presence of a black woman in both dramas forced those who sought to defend the men in the name of racial solidarity to articulate exactly why the women were not also deserving of black support and concern. Racial solidarity, when invoked in cases involving contests between black men and black women, has tracked familiar patterns of privileging males even in cases involving black men and black women. In these contexts, a vision of a common struggle against racism was evoked that typically focused on black male victimization by judicial and extrajudicial practices while completely marginalizing the struggles of black women against violence, both intraracial as well as interracial. The repetition of these male-centered narratives in African-American political memory contrasts with the relative absence of clear symbols of the particular dynamic of the oppression of black women.
The Clarence Thomas/Anita Hill, Mike Tyson/Desiree Washington, and Mel Reynolds/Beverly Heard controversies are thus texts that present a clearer basis for revealing and politicizing black women’s orientation toward gender in that they present the possibility of identification with a race and gender configuration that does not elevate maleness or whiteness over black femaleness. A critique of gender consciousness within the black community generally, and an effort to politicize gender among black women in particular, would be far more productive if grounded in these contestations rather than in the context of a highly charged trial that features virtually all of the symbols of racial injustice that have shaped antiracist resistance discourses for generations.
White feminists are not without their own need to interrogate the way race may have mobilized sentiment and shaped identification with Nicole within the white community. The unrelenting references to Nicole as being the victim of “Othello’s” rage suggest repeatedly that a driving feature of the white public’s fascination and outrage was linked to the specter of interracial sex and death.72
Indeed, it may be that the racial dimension of the verdict shaped not only the response of the general public, but also the reactions of those more intimately associated with domestic violence. The media’s report of widespread panic among victims of violence and some of their advocates seemed at some level to contain a racial element. Among some, it seemed that the outrage was not simply that a batterer may have gotten away with murder, but that this particular batterer had gotten away, sending an amplified message. This “message” was evidenced in one paper that found it so compelling that it became the lead in a story about how battered women’s shelters were coping with the “blow” of the verdict. The story invoked the harrowing tale of a doctor’s wife, a woman “who wore the clothes of upper-class affluence—and the lumps and scars of classless victimization” who reported that her husband had declared: “If that N___ R football player got away with it, I can do anything I want to you.”73 The Simpson verdict, of course, did not fundamentally alter what this white doctor could and could not get away with, which most domestic violence advocates probably understand. Yet the doctor’s purported comments, as well as the presumed newsworthiness of them, probably speaks volumes about both the outrage and panic that were produced by the verdict.
Thus, it may well be that the heightened interest in domestic violence prompted by Nicole Brown Simpson’s murder may have far more complicated dimensions than the Tammy Bruce cohorts are willing to admit. Yet the racial politics of gender violence is evident within the African-American community as well. It goes without saying that numerous rapes have occurred involving African-American women over the past several years. Yet only two African-American women who reported being raped managed to galvanize the black community in response: Tawana Brawley and the black student at St. John’s. The common demoninator in both cases: the alleged assailants were white.
Of course, most rapes and other gender-related violence are intraracial. Yet, until the public discourse on these issues is explicitly recentered around this fact, efforts to politicize gender violence will continue to be remain subsumed—either implicitly or explicitly—within the discourse of race.
White women have as much of an interest in contesting the terms of the Simpson aftermath as do African Americans. Whether this case ended in a conviction or not probably has little bearing upon individual women or the national debate about domestic violence. The fact of the matter is that the high-profile nature of this case and its aftermath is probably contingent upon the interracial dimension of the case. Indeed, just as sexual abuse of black women becomes a political issue within the black community when the assailant is white, sexual abuse of white women garners far more public attention when the assailant is black. These vestiges of nineteenth-century patriarchy are not difficult to discern in other cases as well. Consider, for example, how quickly the story of a Boston couple, allegedly shot by a black man in a jogging suit, created a national media frenzy, especially after the mother and her fetus died. Consider as well how quickly public interest in the story collapsed once it was revealed to be a tragically routine story of intraracial marital homicide. The case still stands as a telling illustration of the role race plays in elevating the few interracial white victims of abuse and violence over the vast majority of others who are routinely assaulted intraracially.
If it is true that the racial dimension of the case contributed to its high profile, then most white women who, like black women, are more likely to be abused intraracially rather than interracially, have every reason to question the terms of the postverdict debate and to demand greater accountability on the part of police departments, as well as communities, employers, families, and the like.
A feminist antiracist politic would not only join the condemnation of police and prosecutorial practices that privilege some victims over others, but also to demand more reliable investigatory and prosecutorial practices. Whatever one thinks about the role that racism may have played in the events of June 12, it is clear that the inability of the LAPD to weed out cops like Fuhrman and to institute procedures and practices upon which juries can rely compromise any attempt to use the criminal justice system to vindicate and protect the interests of women across the board. As Patricia Ireland cogently argued:
We say that the racism and the sexism in the LAPD was part of the problem and that if they’d implemented the Christopher Commission findings that said they should have more women and people of color on the force, it might have had a different result for lots of women whose names we don’t know. And for lots of men who don’t see any justice there.74
It is thus appropriate for organized women to incorporate within their politics a firm stance against racism and business-as-usual incompetence within the criminal justice system. While it may appear momentarily advantageous for white feminist groups to join the anti-Simpson bandwagon, that mission is likely to reveal itself to be much more grounded in racial polarization than in gender enlightenment.
The task at hand is to develop political discourses that reject the reductive either/or framing that surrounds the Simpson trial and other social controversies involving such vexed categories as race, gender, and class. Such cases call for an intersectional politics that merges feminist and antiracist critiques of institutional racism and sexism. While both feminists and civil rights activists have developed useful critiques of the issues played out in the Simpson case, there was no readily accessible framework that allowed the critiques to be aligned in a complementary rather than implicitly oppositional fashion. Feminists have long criticized institutionalized police practices, including the reluctance of police officials to take domestic violence seriously, and African Americans have consistently politicized the ways in which racist police and prosecutorial practices are normalized with the criminal justice system. These discourses, however, fell into opposition both during the trial and in the verdict’s aftermath, and the mutual exclusivity of these various narratives is ultimately tied to the centrality of a paradigm that produced an ultimately flawed vision of what this case was about.
I am, of course, mindful that a likely response to the issues discussed herein is that none of this changes the fact that Simpson may have killed his ex-wife. Similarly, the fact that Simpson may very well have killed his ex-wife does not change the issues that I have explored herein. Indeed, this project is not animated by a belief in Simpson’s factual innocence but instead by a notion that the framework through which the racial issues in this case were framed has played a central role in inaccurately constructing the jury’s verdict as racial payback and a travesty of justice. In this regard, the dominant understanding of this case as the nefarious consequence of an unjustified departure from colorblindness reduces complex issues of institutional power, racially divergent subjectivities, intersections of race, gender, and class, and a host of other issues all onto a flattened plane of race. In this sense, the charge of playing the race card is itself revealed to be a race card, one that reflects a particular consciousness about race rather than a transcendence of all consciousness about race.
The reverberations of the O.J. Simpson trial will surely persist for decades, particularly given the civil suit that is pending in Santa Monica as this book goes to press. A different outcome there is likely to reinforce elite commitment to paradigms that permit mere performances of colorblindness, police accountability, and the like to serve as stand-ins for a more substantive engagement with the terms of social power in American society. In order for American society to learn from these tragic events, we must take the risk of reimagining both power and politics as they are informed by race and gender, a task that will become increasingly difficult the longer we evade its challenges.
I would like to extend my gratitude to several people who provided the research, comments, criticism, and general encouragement that made this project possible: Katherine Chung, David Cohen, Marian Crenshaw, Duncan Kennedy, Chandan Reddy, Richard Yarborough, and, of course, Toni Morrison.
1. While this is certainly not the exclusive interpretation of the Simpson verdict, it is certainly a dominant one, reproduced both in contemporaneous news coverage of the case and in the many postverdict books and retrospectives that flooded the market in the year following the criminal acquittal. Even those texts that offer a counternarrative implicitly acknowledge the dominance of the travesty critique by organizing their opposing arguments in an essentially defensive posture. Alan Dershowitz, for example, argues that his book defending the verdict is intended for “the majority of thoughtful observers who sincerely and understandably believe that O.J. Simpson killed Nicole Brown and Ronald Goldman and that the jury’s verdict of ‘not guilty’ was therefore a miscarriage of justice.” Alan Dershowitz, Reasonable Doubts: The O.J. Simpson Case and the Criminal Justice System (New York: Simon & Schuster, 1996), p. 16. This defensive posture is suggested in the very title of the book Madam Foreman: Rush to Judgment? featuring the accounts of three of the Simpson jurors.
2. Neil Gotanda, “A Critique of Our Constitution Is Colorblind,” 44 Stanford Law Review 16 (1991).
3. Gary Peller, “Race Consciousness,” Duke Law Journal 560 (1990), reprinted in Kimberlé Crenshaw et al., Critical Race Theory: The Key Writings That Formed the Movement (New York: The New Press, 1995).
4. I’m using this term to identify both the “outing”—the summoning and undiscovering of race—and its suspension.
5. Kimberlé Crenshaw, “Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” Harvard Law Review 101 (1988), reprinted in Crenshaw, Critical Race Theory, p. 103.
6. Alan Freeman, “Antidiscrimination Law: A Critical Review,” Politics of Law (New York: Pantheon, 1982), pp. 109–14.
7. For an excellent analysis of how whiteness has been constructed and privileged by law, see Cheryl Harris, “Whiteness as Property,” 106 Harvard Law Review 1707 (1993), reprinted in Crenshaw, Critical Race Theory, p. 276.
8. For a similar use of the term “racial realism,” see Derrick Bell, “Racial Realism,” 24 Connecticut Law Review 363 (1992). Racial realism, Bell states, is a “mind-set or philosophy [that] requires us to acknowledge the permanence of our subordinate status. That acknowledgment enables us to avoid despair, and frees us to imagine and implement racial strategies that can bring fulfillment and even triumph.” Ibid., pp. 373—74.
9. Richard J. Herrnstein and Charles Murray, The Bell Curve: Intelligence and Class Structure in American Life (New York: The Free Press, 1994).
10. Matt Spetalnick, “‘Race Card’ Stirs Controversy in Simpson Case,” Reuters, October 24, 1994.
11. Along these lines, a personal favorite is “flesh tone,” which is invariably white.
12. Ellis Cose, “Caught Between Two Worlds,” Newsweek, July 11, 1994, p. 28.
13. Ron Borges et al., “O.J.—Trouble Under the Surface,” Boston Globe, June 23, 1994, p. I.
14. Or as one “political” observer rather inelegantly put it, “I always thought [the case] was going to be race-neutral. I thought that if anyone was going to be considered kind of a generic person rather than a—a person of color—an African American, a black person—whatever, I thought it would be O.J. Simpson. Apparently I was wrong.” Geraldo Rivera, Rivera Live, August 17, 1994.
15. (Emphasis added.) Peter Gelzinis, “O.J. May Not Rise After His Hard Fall from Grace,” Boston Herald, July 7, 1994.
16. 16. Borges, supra note 13.
17. Ibid.
18. Time, June 27, 1994. Time defended the photo, stating that “no racial implication was intended, by Time or by the artist.” “Cover Wasn’t Racist, Time Magazine Says,” Chicago Tribune, June 25, 1994, p. 8.
19. Not all commentators have criticized the Time cover. Jeffrey Toobin argued that it was blacks who made the association between the darkened picture and criminality. This rather remarkable observation is strikingly similar to the Supreme Court’s observation in Plessy v. Ferguson that African Americans who claimed to be affronted by racial segregation were suffering from a self-inflicted injury. The Plessy decision attempted to turn the table on black claimants by ignoring the social circumstances that dissenting Justice Harlan said “no one should be lacking in candor to admit.” Toobin similarly frames the close association between darkness and criminality as simply a black fantasy. Like the nineteenth-century justices whom Toobin echoes, one would have to be totally lacking in candor to deny the deep associations between blackness and crime to sustain Toobin’s argument. Jeffrey R. Toobin, The Run of His life (New York: Random House, 1996).
20. Meri Nan-Ama Danquah, “Why We Really Root for O.J.: The Superstar Suspect Embodies the Illusion of a Colorblind America,” los Angeles Times, July 3, 1994. “News articles about Americans’ need to create heroes paint only half of the picture. The other half perhaps is that O.J. Simpson, more than any other black hero or celebrity, embodies the idea, the dream, the illusion—call it whatever you want—that we as a nation have transcended race.”
21. The following comments on African-American responses to the O.J. Simpson “event” are purely speculative on my part and are not emperically proven. My comments are not intended to homogenize the multiplicity of responses found within African-American communities. Rather, I am attempting to understand, as I see it, the simultaneous distance many black people established with O.J. Simpson and the keen interest they showed in viewing the daily saga. As a speculative analysis, then, I would urge further inquiry into African-American interests in black celebrities in general, and how this interest shaped responses to Simpson in particular.
22. Donn Esmond’s exasperated tone was typical: “Prior to the slaughter of two people, O.J. Simpson didn’t stand for much of anything in the black community. If anything, he rendered America color-blind—admirably so. So how did he become a symbol for centuries of racial injustice? The guy was more comfortable golfing with CEOs at a private country club than I’d be. Now, to much of black America, he’s a hero.” Donn Esmond, “Celebration Seems Inane in Glare of Two Murders,” The Buffalo News, October 5, 1995, p. 7A.
23. Ellis Cose, explaining why African Americans were invested and hopeful that Simpson was innocent, said, “A number of [African Americans] felt, in effect, that when you have a very visible black male who is accused of a heinous crime … This somehow reflects on the race as a whole.” Charlie Rose, July 7, 1994. Although he dismissed this concern as absurd, indeed, the negative reaction to the verdict does seem to suggest that there is something to the concern that the sins of some will be visited on all.
24. Jeffrey R. Toobin, in “Incendiary Defense,” The New Yorker, July 25, 1994, p. 56.
25. Nightline, July 22, 1994.
26. See, e.g., Debra Saunders, “Being Branded,” Times-Picayune, September 3, 1994.
27. See “The Simpson Legacy: Just Under the Skin; Pushed by Change, Pulled by the Past; as the LAPD Pursues Community-Friendly Policing, a Paramilitary Tradition Dies Hard,” Los Angeles Times, October 10, 1995.
28. California v. Simpson, Record No. BAO 97211, 1994 WL 575824, p. *8 (Oct. 19, 1994).
29. See, e.g., Armanda Cooley et al., Madam Foreman: A Rush to Judgment? (Los Angeles: Dove Books, 1995), p. 100.
30. Doubts about the credibility of the police testimony were shared by nonblack jurors as well. White juror Anise Aschenbach—the juror who prosecutors probably hoped would, at minimum, give them a hung jury—indicated that she did not believe Vannatter was “playing it square.” This and other doubts about the integrity of the police investigation gave her reasonable doubts. Ibid, p. 85. Dershowitz, Reasonable Doubts, p. 97. See “Why Do So Many Police Lie About Searches and Seizures? And Why Do So Many Judges Believe Them?” Ibid., pp. 49—68. Dershowitz’s comments, published as a New York Times op-ed article, were supported by numerous studies and commission reports. Yet the reaction to his op-ed was predictably “swift, vociferous, and well-orchestrated.” One of the most vocal critics was Detective Van natter’s boss, LAPD Police Chief Willie Williams, whose staged outrage actually confirmed Dershowitz’s claim that testilying is at least tolerated from on high. On the other hand, William F. Bratton, police commissioner of New York, acknowledged the institutionalization of the problem in terms that illuminated the contributing role of prosecutors. “When a prosecutor is really determined to win, the trial prep procedure may skirt along the edge of coercing or leading the police witness. In this way, some impressionable young cops learn to tailor their testimony to the requirements of the law.” Ibid., p. 63.
31. “I watched all the other deputy D.A.’s smile and agree that he would make a very good witness. But I was sick. There was something about this guy.” Christopher Darden, In Contempt (New York: Regan Books/HarperCollins, 1996), p. 199.
32. Ibid., p. 188.
33. Ibid., p. 189. Of course, Darden’s instincts were correct. As one of the jurors recalled, “I remember thinking he was there as a token because the jury was predominantly black. I thought the prosecution felt they need 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. It didn’t fool me and it didn’t fool a lot of other people on the jury either.” See, e.g., Armanda Cooley et al., Madam Foreman: A Rush to judgment? (Los Angeles: Dove Books, 1995), p. 88.
34. “One of the other clerks suggested that Marcia was dumping the worst witnesses and taking the clean ones for herself. I didn’t think so. I watched how hard she worked, and knew she wouldn’t back down from any witness.” Darden, In Contempt, p. 188.
35. Darden’s reaction to the jury’s verdict virtually ignores the possibility that the jury simply didn’t find key elements of the investigator’s story credible. Instead, he fully condemned the jury, despite his own recognition that the case was substantially weakened by their reliance on Fuhrman. According to Darden, the verdict was simply a misplaced act of racial revenge. See the discussion.
36. “We’d done all we could to keep out the nasty baggage that he carried, to allow the jury to focus on the murder and not Fuhrman’s past. We’d managed to keep out of the trial: a political cartoon from Fuhrman’s desk showing a swastika rising from the ashes; unfounded allegations that he’d planted evidence; the 1980 and 1981 psychiatric reports; and a rumor that he had made a comment to a colleague about seeing Nicole Brown’s augmented breasts before she was killed…. Marcia was masterful with him, gentle enough to calm him down when he was jittery early in his testimony, firm enough on the details to leave no room for the defense to claim he planted evidence. It was a sharp contrast to the mistrust and discomfort with which I would have questioned Fuhrman.” Darden, In Contempt, p. 284.
37. Darden, In Contempt, p. 202.
38. Lisa Resper et al., “Blacks Debate Issue of Race in Simpson Case,” Los Angeles Times, January 15, 1995, p. 1.
39. Darden, In Contempt, p. 211.
40. Ibid., p. 266.
41. Ibid., p. 239.
42. Ibid., p. 288.
43. Darden admits that “Cochran warned me three or four times. I knew they must have something on Fuhrman, but what could it be? That he had been a racist? a Nazi? Unfortunately, that wasn’t enough to keep him off the stand” (Darden, In Contempt, p. 274). Yet a poor performance on the autopsy certainly kept the coroner off the stand. More complicated reasons for Darden’s ambivalence about Cochran is suggested by the following: “I think he was honestly trying to warn me away … I was just as serious; I wasn’t going to be limited by my race. And I wasn’t going to leave Marcia in a position like that.” Darden, In Contempt, p. 272.
44. Darden, In Contempt, p. 288.
45. Ibid.
46. George F. Will, “Circus of the Century,” Washington Post, October 4, 1995, p. A-25.
47. Darden, In Contempt, supra note 25, p. 10.
48. Ibid., p. 11.
49. William Claiborne, “A Majority Black Jury Won’t Convict in a Case Like This,” Washington Post, October 6, 1995, p. A-4.
50. Dershowitz gives his account of why and how the jurors probably found reasonable doubt. He first notes that the jurors simply did not believe Vannatter’s statement that the police initially did not believe Simpson to be a suspect. “The jury thus started out with the realization—new, perhaps, to some; not so new to others—that these policemen were prepared to lie to them and to cover for each other, at least as to certain aspects of the case.” Dershowitz, Reasonable Doubts, supra note 29, p. 73. “Any reasonable juror who believed that several police officers might have lied to them about some of their actions and tampered with some evidence could not simply ignore those beliefs in assessing the rest of the evidence. All the police evidence and testimony would now come before the jurors bearing a presumption, or at the very least a suspicion, that it had been corrupted. Perhaps the prosecutors could have overcome that presumption or suspicion, but it would not have been easy. After all, policemen who are deemed willing to lie and tamper with respect to some evidence should not be deemed unwilling to lie and tamper with respect to other evidence” (p. 87).
51. The MacNeil/Lehrer NewsHour, October 4, 1995, p. 15. Transcript #5368. Educational Broadcasting and GWETA.
52. Mortimer B. Zuckerman, “The Sad Legacy of 1995,” U.S. News & World Report, January 15, 1996, p. 68.
53. Ibid.
54. Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away with Murder (New York: W. W. Norton, 1996), pp. 91–226. (See especially two chapters entitled “The Trial: The Incredible Incompetence of the Prosecution” and “Final Summation: The Weak Voice of the People.”)
55. Ibid., p. 124.
56. Ibid.
57. For example, the Los Angeles Times both explicitly and implicitly suggested that jurors at the Santa Monica courthouse would be more sympathetic to the prosecution than the downtown jurors because of their different racial composition: “Juries drawn for the Santa Monica courthouse are more affluent, better educated and have a different ethnic mix than those at the Downtown courthouse. A Westside jury in the Simpson double-murder trail, legal experts say, would have been much more receptive to the prosecution’s case.” Of course, untouched is the question of whether a jury more “receptive” to the prosecution’s case necessarily makes them a better rather than a weaker and less careful jury. Please see Miles Corwin, “Location of Trial Can Be Crucial to Outcome, Experts Say,” Los Angeles Times, November 27, 1995.
58. For discussions of the Gammage incident and postverdict responses, see Robyn Meredith, “In Pittsburgh, White Officer’s Acquittal Brings Protest March,” New York Times, November 15, 1996; for discussions of the TyRon Lewis incident and postverdict responses, see Mike Clary, “Officials Remain on Alert in Riot-scarred St. Petersburg,” Los Angeles Times, November 15, 1996; for discussion of the Anthony Baez incident, see David Stout, “Judge’s Hypothetical Question Is Cited in Bronx Officer’s Acquittal,” New York Times, October 11, 1996. Importantly, the New York case, in which Officer Livoti stood trial for the murder of Anthony Baez, was decided not by a jury but by a judge at the request of the defendant, Officer Livoti. Although defendants always have a constitutional right to choose trial by a jury, they can choose to be tried by a judge. The trial of Officer Livoti was conducted at the Bronx Criminal Court where there is a large African-American and Latino jury pool. Hence, there is little question as to why Officer Livoti chose to relinquish his constitutional right for a trial by jury.
59. Quoted in Frank Rich, Op-Ed, New York Times, October 4, 1995, p. A-21. See also Susan Estrich.
60. “Tammy Bruce of NOW Feels Strong About Simpson Case,” CNN, Oct. 3, 1995, transcript # 1258–6.
61. Marc Lacey, “NOW Condemns Leader of Its L.A. Chapter,” Los Angeles Times, Dec. 7, 1995, Part B: p. 3.
62. “Women’s Group Apologizes for Member’s Racial Remarks,” Reuters, Dec. 6, 1995.
63. Lacey, supra note 61, p. 3.
64. CNN & Company, Oct. 5, 1995, transcript # 685.
65. As forewoman Armanda Cooley put it, “When I signed up for jury duty, I didn’t see the State of California versus NOW, the State of California versus Racism … All I saw was the State of California versus Orenthal James Simpson … Out of this, we got political wars. We got wars with battered women’s organizations … We’re hearing that we set this world back on its toes from square one. The hell if we have. These things have always been here. They have always been here camouflaged. Don’t blame us.” See Cooley et al., Madam Foreman, pp. 140—41.
66. Sara Rimer, “The Simpson Case: The Victim,” New York Times, June 23, 1994, p. 1.
67. James Ryan, “O.J. Simpson Sentenced to Probation in Wife Beating,” United Press International, May 24, 1989.
68. Although it was clearly Simpson’s money that allowed him to mount an effective defense, it is doubtful that much of the anger concerning Simpson’s acquittal is about the obvious class privilege he exercised. At least among the elite, it is unlikely that: any moves are afoot to equalize resources among defendants, or to limit wealthy defendants’ ability to use all their resources to defend themselves.
69. Danquah, supra note 20.
70. As I note elsewhere, [t]his focus on otherwise privileged group members creates a distorted analysis of racism and sexism because the operative conceptions of race and sex become grounded in experiences that represent only a subset of a much more complex phenomenon. I expand on this problematic in an earlier work, “Demarginalizing the Intersection of Race and Gender in Antidiscrimination Law and Politics,” Chicago Law Forum 140 (1989). I explore this problematic in the specific area of violence against women in “Mapping the Margins: Intersectionality, Identity Politics and Violence Against Women of Color,” 43 Stanford Law Review 1241 (1993), reprinted in Crenshaw et al.
71. Angel-shaped lapel pins were worn by supporters of the victims’ families. Marcia Clark attempted to wear such a pin in the courtroom, but Judge Ito ruled that it was improper. See Matt Krasnowski, “Angel-Pin Protest Is New O.J. Sideshow,” San Diego Union-Tribune, Feb. 13, 1995, p. A3.
72. See, e.g., “Simpson Verdict Shakespeare, Not Justice,” The Herald Sun, Oct. 4, 1995, p. A12. “If this country has ever had an Othello, he walked out of a Los Angeles courtoom Tuesday, acquitted of double murder by a jury of his peers…. [T]he trial revealed for all to the world to see that beneath the seemingly personable juice was a tormented soul—Othello, again—capable of unleashing the most dreadful domestic violence on Nicole Brown.”
73. Jacquin Sanders, “Spouse Abuse Shelter Felt the Blow of the O.J. Verdict,” St. Petersburg Times, Oct. 26, 1995, p. 1.
74. Teresa Moore, “Taking NOW Into the Future,” The San Francisco Chronicle, April 21, 1996.