Law in Contemporary Society

If It Doesn't Fit, You Must Acquit

-- By StephanieOduro - 15 May 2010


Criminal jury trials are complex mechanisms for finding "justice" that are not infallible. Despite evidence present at trial, verdicts rendered are subject to the whims of the jury. The "dream team" defense at the O.J. Simpson trial was an excellent example of creative lawyering and performance.

How do you know?

The verdict was further proof that law is not an exact science; it is an art of persuasion.

Because you believe it was against the weight of the evidence? Is it the verdict that tells you the skill of the lawyer? And why do we need to use some pathological situation like the Simpson trial to teach us the banal cliche that is the apparent conclusion?

The Evidence

Whether or not one agrees with the verdict of the trial, the prosecution had more than enough evidence to convict O.J. Simpson. Prosecutor Marcia Clark proclaimed that the finding blood "in the defendant's car, in his house, in the driveway and even on the socks in his very bedroom at the foot of his bed, that trail of blood from (the crime scene) through his own Ford Bronco into his house—is devastating proof of his guilt."

It seemed as though the experienced prosecution had the verdict in hand. However, the tremendous amount of evidence collected from the crime scene gave the prosecution a false sense of security. They were overconfident in their ability to win the trial. However, the prosecution made a fatal error in believing that the weight of their evidence alone could win over the jury.

Why is that a "fatal error"? Because they lost this particular case, or for some other reason? You are still trying to argue from the exceptional to the normal, and it still won't work.

Oliver Wendell Holmes argued that the law is not made of logic.

Not quite. Either you want to be accurate about what Holmes said, which will require a little less intellectual blunt force, or you want to drop the comment altogether, which seems wiser to me.

The courtroom is not an arena where truth and justice naturally prevail. Legal outcomes are sometimes random and unpredictable, and this was part of the systemic defect that led to the prosecution's loss.

You reach these conclusions on the basis of a single aberrant fifteen-year-old trial conducted under bizarre conditions, including fundamental failures by the trial judge? They're either truisms that need no argument, or serious propositions that require something better than the soap opera that is Simpson to justify them.

The Race Factor

Justice is not blind. In Jerome Frank argued that one must mold his/her case to fit the jury in order to win. Successfully doing this means accounting for the conscious and unconscious biases of those one is trying to persuade. Felix Cohen opined that one must understand the unconscious behaviors of human beings in order to understand how law works. How does one get a jury verdict that is seemingly inconsistent with the evidence presented? By forgetting, denying and/or ignoring the social realities confronting the jury.

You should have removed the grammatical ambiguity and the fuzzy thought here, but all you did was to replace "you" with "one." You haven't dealt at all with the ambiguity of your verb, "to get." So it's still unclear: are you stating here how Cochran "got" the verdict, in the sense of created the conditions for it? Are you asking how the DA's team "got" the verdict, in the sense of failing to prevent it? Or how "we" "got" the verdict, in the sense of having this happen in our society while "we" watched Lance Ito perform a classic example of the judge as clownish idiot? (You still don't mention the role of the judge, which is surprising.)

The prosecution made several mistakes that the defense capitalized. One of those pivotal mistakes occurred when the prosecution actively chose to have the trial in downtown L.A., which resulted in a jury comprised of nine African-Americans, two Caucasians, and one Hispanic. Commentators at the time noted that the "prosecutors lost the criminal trial—the day the predominantly African-American jury was sworn in."

You're still not editing your writing carefully. "Capitalized" is an ugly and transitive verb. You meant "capitalized on," or better, "exploited."

The mostly African American jury came from an inner-city that commonly felt distrust toward police officers and the judicial system. Thus the prosecution was at an immediate disadvantage as being a part of a system the jury found suspicious. Johnnie Cochran understood this well, and he used his excellent speaking and performance skills to play on the jury's emotions. He evoked sentiments of Martin Luther King during his opening statement and took care to appeal to the jury's black conscience throughout the trial. O.J. Simpson was raised poor but grew to have tremendous success as a star-athlete. Thus, some argued that because O.J. was one of few male heroes within the African American community, the jury sought to protect him from a system they felt was corrupt.

That seems more like an interpretation than an argument, unless it was an insight based on evidence, such as the statements of jurors.

The Prejudice Factor

Frank strongly argued that the law, itself, never knows the facts. The facts are determined by those who testify at trials, what they look like and how they tell the story. The defense seized the facts and made it their own with a flamboyant performance, much to the chagrin of the prosecution who was not adequately prepared for this racial appeal. The defense convincingly challenged the credibility of the other side's investigation, evidence and witnesses. They were very effective in finding the facts for the fact finders, the jury. For example, the defense completely discredited evidence against O.J. found by police officer, Mark Furhman, by using his racist remarks as proof that he could not be trusted. Furhman's character flaws were further used to cast a shadow on the entire investigation by insinuating that the LAPD was trying to frame O.J. The prosecution failed to recover from its gaffes, and the jury's previous distrust for the police only grew. The defense successfully undermined any faith the jury had in the prosecution's evidence.

The Wealth Factor

Another profound effect of the O.J. Simpson trial was the growing perception that money could buy justice. Frank argued that money could buy control of the facts, and this was how wealth and power often won in court. Even with a mountain of evidence against him, O.J. was able to gather a team of the best lawyers in the country who engaged in an aggressive assault on dismantling the prosecution's case. O.J. was a huge celebrity. With that celebrity came notoriety and his fame brought him riches. O.J.'s wealth afforded his team access to resources that were directly on par with that of the prosecution, a rare occurrence in regular low-profile day-to-day criminal trials. Having the resources to buy the services of such esteemed attorneys also gave O.J. an advantage over regular defendants who might have been in his place. The private lawyer's fee works as an incentive for the defense to work even harder to win the case. The lawyers in this case also had something to gain as well if they won: their own increased fame and notoriety thereby increasing their riches.



Trials are performances that play on human emotions. The evidence is certainly relevant but, as the O.J. Simpson trial illustrated, the psyche and social experiences of the jury are substantially important as well. Holmes argued that the law is made of tradition and history. Indeed, the way the law played out in the O.J. Simpson trial correlated with the mostly black jury's history of racism and traditional distrust of law enforcement. The lesson learned from this case is that juries are comprised of people who will consider more than just the evidence presented during trial. Human beings interact and react to their social realities, which can turn a seemingly unwinnable case for the defense into an acquittal.

The problem with the first draft was that you tried to make general statements about the nature of criminal trials based on a fifteen-year-old made-for-TV extravaganza whose motive parts (most importantly, the total failure of the trial judge) you tried to treat as "normal" instead of exceptional. In response to my comments, which you more argued with than accepted, you made the general statements inferred from this problematic evidence into mere cliches and truisms, which no evidence—however strong or weak—could meaningfully affect. So the effect of Simpson was to inhibit insight rather than further it, as I suggested in the first place. Thinking hard about criminal trials would be a good idea; relying on that soap opera to help will always be a disappointment..


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r5 - 13 Jan 2012 - 23:14:27 - IanSullivan
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