I know this post seems like it is about O.J. Simpson, but it is really about the way people argue. But, as I blabbered along (I came back to write this intro) I realized it is also because I love to talk about books. That is a reason for many of my posts. Anyway . . .
When I was a young man, I was a big O.J. Simpson fan. He was the state of the art running back for his time, a combination of power and speed that was wonderful to behold. Obviously a powerful man, he was, in fact, on his college 100 x 100 relay team which held the world sprinting record for a while. I was at the NY Jet game in 1973 when he went over 2000 yard mark for the season. No other running back had ever done that before. Only six other men have done it since, three of them among the greatest running backs in history. But, all of them did it in 16 games. When OJ did it, there were only 14 games. None of them did it with as few running attempts as he did, although some were close. His per game average is substantially greater than the other six (still the NFL record). His average gain per rush for a year is surpassed only by Barry Sanders by a tenth of a point and Adrian Peterson tied him a few years ago. Of course, this greatest year was only a part of his tremendous career, which included the Heisman Trophy in college and 11 years as a pro. When he retired only one man had more career yards than he did, arguably the only back better than him. From 1972-1976, basically while I was in high school, he averaged 1540 yards per 14 game season and 5.1 yards per carry. If you don’t follow football, even today that would be awesome. Perhaps at that time Jim Brown was greater and maybe now some think Barry or Payton was, but Simpson was and is in the elite group.
Later on he was worked in tv as a football commentator but was also known as a comic actor, although no one took him very seriously, including himself. That was part of his charm. His light and friendly personality was well known, in fact, beloved by many. It is hard to imagine that anyone other than a diehard racist did not like him, and frankly, he probably would have.
So, imagine my surprise – everyone’s surprise, when his wife was murdered in 1994 and it looked like he was going to be arrested for doing it. I either initially presumed or maybe just hoped he was innocent despite the suspicion spouses engender. Of course, few people knew the important facts a day or so after it happened. A few days later, I was on a canoe trip with some friends. The owner of the van we drove in had both a tv and a portable phone (I presume a cell phone – it was over 20 years ago, so forgive me). His wife called and said, put on the tv. We gathered around, about 8 guys, and turned on the television to see him in a slow motion chase in the famous white Bronco. I said “Oh no, OJ” and think the others something similar too. To us, his run meant he was most likely guilty, although there is little logic behind such a conclusion. But, we all liked him and were terribly disappointed.
The trial itself, not including jury selection, was over 8 months long. Everything happened in this case - everything. Leave aside the double murder, there were celebrities, athletes, infidelity, police corruption, DNA evidence (fairly new then), lesbianism, drugs, mobsters, conflicts of interest with the judge’s wife, trash talking, racism, sex – likely even between co-counsel, domestic abuse, a barking dog, a shadowy figure, lie detector tests, an almost suicide, a puzzling housemate, relentless courtroom drama and so on. Though I realized how sad it was – two people brutally slaughtered with a knife; one’s throat cut all the way across – it provided almost a year and a half of entertainment for me and millions of others.
It is hard to convey this case’s hold on the public’s interest to people who did not live through it or are too young to remember how sensationalized it was. After it ended, as a trial attorney, I would bring the case up during jury selection when going over courtroom procedures (being careful not to take a side one way or another), because almost everyone had seen some of it. And for many of them, it was probably the first and last time they had ever seen a real trial.
Recently I’ve read two books about it and want to discuss them because they illustrate for me the different ways people argue. I agreed with many of the conclusions of one author, a renowned prosecutor and later a true crime writer named Vincent Bugliosi. He seemed like an energetic, highly intelligent man. Certainly he had more experience in criminal matters than most anyone else. Yet I found him very biased and unfair. For whatever reason, perhaps there is something wrong with me, that I almost always want everyone to argue fairly (of course, in my opinion – you can always make an argument someone was not fair – and I have my exceptions when it is not necessary), especially when there is a lot at stake. I hate it when people are falsely accused, even of small things, and I hate it more when the reasons are based on certainty without back up. I never mind if someone has an opinion based on speculation or feelings when it is admitted. But I hate it as much when someone just “knows,” particularly what someone else is or was thinking without at least some sufficient reasons.
But I also read American Tragedy, by Lawrence Schiller, a journalist/producer who was a very minor player tangentially on the defense side (he once helped them gain some access to technology), which gave him access to OJ’s friend and one of his lawyers (sort of) Robert Kardashian, now deceased and who is probably more famous now for his reality show family. Schiller didn’t even give an opinion as to guilt or innocence, but I found him quite fair and to have written a much better book, even if he mostly had access to the defense side – he still provided the prosecution arguments without mockery or just saying they were flat out wrong.
I’ll deal with American Tragedy first. I was very familiar with most of the claims and defenses in the case from watching it, but in the past 20+ years I’ve forgotten some of it – and there was a lot to absorb. But I learned a lot of detail from Schiller about the possible tainting of the blood evidence, the reasons to believe that the glove and bloody socks were planted (even the blood on the socks is questionable), that blood was planted in the Bronco, that the blood tests were done in a way that made contamination quite likely and that Mark Furhman was a thoroughly disreputable police officer – not because he repeatedly used the N-word in helping write a screenplay, but because it is hard not to come to the conclusion given all of the evidence, much of which was not even presented to the jury, that he was deeply prejudiced and sometimes abusive to minorities. Even the prosecution had to denounce him, while refusing to accede he did anything wrong, and he eventually took the 5th amendment.
The real fun of Schiller’s book though was seeing the blow by blow in-fighting between the many attorneys and investigators working for O.J., the true legal skills and work ethic of the two New York attorneys - Barry Scheck and Peter Neufeld, both the charm and egotism of the defendant who demanded that his questions be asked by the attorneys and coached them even on how to act, the frustration and incompetence of the DA’s office and LAPD (which was evident if you watched the trial objectively) and an inside look at what might actually have been the trial of the century that never stopped developing right up until its last days.
During the trial I watched it as an attorney of 10 years plus experience (which is a middling amount of time) and was actually stunned by the incompetence of almost all of the attorneys involved on both sides. Only the two New York attorneys seemed to know how to cross-examine anyone well. The famed F. Lee Bailey and the ballyhooed Johnny Cochran often seemed incompetent at it. I’m not exaggerating. There’s a shtick I do on how Cochran cross-examined witnesses:
“So, when you came to the corner, you could see the entrance?”
“Yeah, as in ‘no I could not see it?’”
That’s of course an impression. I have argued with non-attorneys, but also attorneys, who bought the media hype about him since the days of the trial that he, and most of the attorneys on both sides, were terrible. So, I admit that I was joyful when I read in Outrage, Bugliosi commented on him thus:
“With respect to Cochran’s cross-examination at the trial, it was the most rudimentary type imaginable. He could hardly have been more mediocre. Watching him I asked myself how it was possible he could have been a trial lawyer for thirty-two years and not have picked up even the slightest degree of skill at cross-examination. Not only did he appear virtually weaponless as a cross-examiner, but he magnified his lack of expertise by obviously minimal preparation and fumbling, inarticulate questions. He basically limited himself to seeking to elicit from the prosecution witnesses he cross-examined information he had learned was helpful to his side, i.e., cross-examination in an important but very unsophisticated form.
Before getting into Johnnie Cochran’s direct examination, let me digress for a moment to discuss briefly two adjectives that the media used to describe Cochran at this trial, silver-tongued and smooth. There is nothing silver-tongued about Johnnie Cochran, even remotely so. . . .”
And so on. I’ll get back to Bugliosi later.
By the way, the line Cochran is most famous for, is not his own, but the creation of another lawyer on the team, much less well known co-counsel, Gerald Uelman, the dean of a California law school.
After a good start, F. Lee Bailey proved so embarrassing to the defendant that the rest of them did not want to give him any more witnesses and he had to pander to O.J. himself to get more. But, I really was not impressed by most of them, although the defense was lionized by the media as the “Dream Team.” Many of my attorney friends at the time also thought Marcia Clark, the lead prosecutor, was wonderful. I was stunned how bad she was (the only one I knew who agreed with me was my friend, Don, who worked with me at the time). MC had one speed – angry, if anyone said anything that helped the defendants. I seem to recall a witness asking her why she was berating him when he was just telling what he observed and had no dog in the fight, but I am not going to read thousands of pages to find it.
Chris Darden, Clark’s primary associate prosecutor – who the prosecution wanted to be on the trial because he was black - did not seem at all better to me many people respect him quite a bit. Perhaps he was worse than she was. His biggest blunder, asking O.J. to try on the gloves, is up there with one of the dumbest things ever done in a courtroom. Now I know people, who just wanted him convicted, who insist they fit and he was deliberately making them not fit and others who claim that they shrunk because of blood (which, if planted, makes no different). The truth was, some of the defense attorneys had already measured their hands against the gloves and knew they would not fit O.J., who was, after all, quite a large man. I thought Darden did a decent job on part of the summation though. But, the defense, particularly Cochran, knew how to push his buttons and he was almost held in contempt by Judge Ito, who retired only last year.
Ito was a story in himself. Most people, especially after the acquittal, thought he did a terrible job. He was often mocked for seemingly allowing the attorneys to run the trial and over him. Like most things in life, it wasn’t really fair. It was a murder trial, and it was uniquely complex and fraught with problems, including the possibility Ito’s own wife might have to be a witness. Many people thought he favored the defendants, but I thought he favored the prosecution. Just as one example, when the defendants wanted to provide 41 examples of Furman using the “N” word, he allowed just 2, and very mild ones which did not highlight the railroading of black defendants or his brutality. I’m sure other judges would have been tougher on all the attorneys. Some of his decisions were just baffling (like letting O.J., who would not testify, address the jury briefly to explain that he wished he could – wha-aat?), although, I have seen many baffling decisions by judges, even good or experienced ones. We tend to remember other people’s dumb mistakes more so than our own.
Simpson was portrayed in a very complex way by Schiller. Always maintaining his innocence, he seemed to convince almost everyone he could personally address with his sincerity and innocence. But, some of his attorneys, particularly the nominal lead counsel, Robert Shapiro, never believed he was innocent and many of them came to doubt it, including his close friend, Kardashian. Of course, years after the trial he was convicted and jailed for robbery (of his own memorabilia), but clearly was given the extensive 9-33 years for the murder of which he was acquitted. Consider the following. Though never convicted of a crime before, and not accused of carrying a weapon, and going to try to take back his own stolen memorabilia, Simpson got by far the longest sentence of his co-defendants. The two men who actually carried guns were given probation – that’s it. The guy who told Simpson about the memorabilia, recorded everything secretly and made hundreds of thousands of dollars on it, was given immunity. Another guy, the driver, refused to plea – he got at least 7 ½ years, but did not serve much time. His conviction was overturned and he struck a deal for time served. Another guy who just pretended to be another buyer also got probation. So, if O.J. didn’t carry a gun and was recovering his own stuff, why did he get so long a sentence? There are people convicted of heinous crimes, even murder, who received far less. A young women who entered the house I live in and stole $20,000-30,000 of stuff, got probation. The answer as to why he got up to 33 years is pretty clear if you ask me. He was convicted of robbery but served a sentence for murder.
Before he ruined his life with that conviction, he agreed to a ghostwritten book, originally entitled I did it, then If I did it: Confessions of a Killer (you can get either version on Amazon), which “speculated” if he had committed the murders, how it went down. Bad publicity forced the book from the shelves originally, but, obviously, it was an admission of sorts. No one was shocked. Most people think he’s guilty.
One of the aspects that was treated in American Tragedy and more recent documentaries, is the racial issue, which loomed so large. One thing the defense knew was that blacks, and particularly black women, were almost certain to acquit him no matter what. Far less so were whites. In fact, one white female juror, originally an alternate, was dubbed by the defense team, “the demon,” and they would have loved to get rid of her. They tried. But, apparently, the evidence presented to the jury led her to find reasonable doubt too.
I give Schiller high marks for presenting, as best as he could, a fair summary – even a long book has to be a summary about this case, and even though he could have easily been biased by having so much more access to the defendant’s team. Possibly he was able to do this because he was not an attorney, who are trained to take a side and make a case – not necessarily to be fair. I could catalogue all the inside baseball I learned from it, but, it would take up to much space. Perhaps my favorite item was that when the jury was about to visit O.J.’s home, the defense team took out all the pictures of white women and replaced them with blacks and other signs that he was not just a rich man who used to be black (“I’m not black. I’m O.J.”) but someone deeply involved with the problems of poorer blacks.
Bugliosi’s book, Outrage, was different. I want to talk about it as an example of thinking someone is right in their conclusions, including the main one, but absolutely wrong or biased in their analysis and other convictions. For those who don’t know it, Bugliosi was a famous L.A. prosecutor, whose most notable success was convicting Charlie Manson, who was never present at the scene of his murders (he apparently won all but one felony cases he tried – but prosecutors tend to have very good win records as they are usually trying guilty people before a prosecution minded judge and a cynical jury). He is also a well known and very thorough true crime author, and his book on the Manson murders, Helter Skelter, his first and most famous work. I had read one of his other books, on the Paula Jones v. Bill Clinton case, No Island of Sanity. Although I agreed with him generally in reading that book, that O.J. is most likely guilty of murder, almost certainly.
I was appalled by how Bugliosi began his book, by essentially stating that anyone who doesn’t think he was guilty was unreasonable and that it was the most clear case of guilt he ever saw. Keep in mind, there was no witness and no unimpeachable direct proof. There often isn’t, but then you can’t say that it is the most clear case. He not only dismisses the prosecution as stupid or colloquially insane (and I agree, they did a bad job), but the jurors who he says did “not have too much intellectual firepower” and were “biased in Simpson’s favor” (which may also be true). He gives no credence at all to the fact that the trial went on for so many months and was beyond doubt a ruinous event in everyone’s personal or social life, and that it would be impossible for anyone to follow everything. DNA was new then and most of the attorneys did not even understand it. How could the jury learn it in that setting?
He believes that if the DNA evidence was believed, Simpson had to be guilty beyond doubt. He does this by dismissing, right from the start, the possibility of the LAPD detectives planting the blood evidence as while not as insane as believing Simpson accidentally bled on all these spots before the murders or that Simpson was defending himself, still so high that he felt no need to defend himself and just said the book is not for you. I think Simpson guilty but also think there was evidence planted, at least the glove at Simpson’s residence and the bloody sock on his bedroom floor (which was somehow not there in a video taken before the sock was collected).
But, he goes beyond this. He mocks the fact that Simpson, instead of saying “not guilty,” said “absolutely, one hundred percent not guilty,” without understanding or even suspecting that he was told by his attorneys to say that, and he found Johnnie Cochran audacious for defending his client like a defense attorney is supposed to - zealously. He questions Barry Scheck’s ethics for defending someone because Bugliosi was sure he was guilty (Scheck, like some other attorneys, had his doubts and it did bother him). But, worst of all, he, Bugliosi, actually believes that innocent people always testify. That means that he is either as stupid as he claims most everyone else is, or he is so biased in favor of prosecutors that he can’t fathom all the good reasons why they don’t testify, even when innocent. Perhaps he also just didn’t know that Simpson desperately wanted to testify and was talked out of it by his lawyers, especially after he was showed how badly he would have done when they did practice cross-examinations, by one of his lawyers, and then two lawyers they hired.
I don’t doubt that Bugliosi was a very good prosecutor, perhaps the best as some say. He is a ferocious arguer. But he has all the faults of people who are so sure of themselves that they cannot see the other side and I find that he makes many of the same judgments that I am so critical about and spend my life trying not to do (even if I fail mightily in it, in anyone else’s view, sometimes or all the time – that doesn’t mean the idea is wrong). Reading just the introduction to the book I had to wonder whether he wasn’t aware of some of the evidence or didn’t care.
Having been so negative about him, I have to applaud his finding laughable the lauding of the attorneys involved. Now, he warns you he is a cynical guy. So, am I. So are a lot of people. That doesn’t mean you think you are the only one who has any abilities, or, at worst, one of the few. He assumes incompetence, even in the lawyers in a criminal case, and pretty much everywhere. Well, it’s not that I disagree in general. I have many times echoed his statement, “[incompetence] is so prevalent and so bad that the only adjective I’ve ever been able to come up with in the lexicon that adequately describes it is ‘staggering.’” But, he adds, and I agree, “Yes, common sense tells you this. But this is not the way society sees it.” That doesn’t mean you have to presume it in every case unless proven otherwise. I stated above how I agreed with his analysis of Cochran’s abilities, or lack thereof, and I agree with his analysis of all of the attorneys (with two qualifications). For example, I was pleased to see that Robert Shapiro, technically the lead defense attorney, but also not a very experienced trial attorney, was among the few who could really question a witness like an attorney should be able. Bugliosi wrote: “I have to say I was pleasantly surprised by Shapiro. He was better than I expected him to be. He certainly is no legal heavyweight by any stretch of the imagination, but he demonstrated that he knows his way around the courtroom, and he has good courtroom presence. Although he handled only a few witnesses on cross-examination, with those he did, he knew what he wanted to elicit from them, asked intelligent questions, and sat down. Ironically, Shapiro was criticized for his pointed crosses by some of his co-counsel and O.J.
He was less than complimentary on Shapiro’s questioning of his own witnesses sometimes and again I have to agree. And, he was most critical of the attorneys on both sides for not interviewing their witnesses. I can’t agree more. Schiller, not an attorney, also made reference to the defense team itself realizing it had to interview the witnesses – by the one who was questioning them; not just by an investigator. However, I feel he gives no credit to the fact that this was no ordinary trial. Bugliosi gives a wonderful summation right in his book, but never considering that maybe the attorneys just didn’t have time like he has had to write one as good. And maybe they did not have a lot of time to interview witnesses either. Arguably, if you decide to do this trial as a defense or prosecution attorney, you give up for life for a year – it’s a commitment. But that doesn’t mean all things are possible. I have had short trials of a few days where it was very hard to find time to write a summation, even when highly motivated.
Bugliosi was a little nicer when it came to the New York defense lawyers, Scheck and Neufeld, who he found at least competent. I thought he understated it, but he may have changed his mind if he read Schiller’s book and saw how they were by far the strongest legal force for the defense team. I think they were a major factor in the acquittal. Besides, I’m not sure that Bugliosi would put any lawyer in his own class. I knew who he was talking about when he wrote that there are only a few lawyers in the country who know how to cross-examine someone. He’s absolutely wrong about that, although the number is a lot smaller than you’d like to think.
Despite all my criticism of Bugliosi’s arrogance, his book was fascinating. In some ways he’s my kind of cynical guy and much of the book is social commentary. There was even a bizarre chapter on whether there was a God or not (he is really talking about people attributing this or that to God in a trial). Bugliosi says he is an agnostic, but, ironically, he is a dogmatic one. As he is uncompromising in his criticism of everyone associated with a case of which he did not like the outcome, he is uncompromising with his agnosticism. Which allows me to discuss one of my favorite topics, atheism, but I do it for a reason which I will tie into later. He mocks atheists for their certainty, because – how is it possible to know for certain something unknowable? I know many people who take this position. I have written on atheism itself on many occasion here and I don’t want it to become the focus of this post, but I can briefly state my opinion thus: because of the emotional aspects of “God,” it is a disturbing topic for people. Believers, even agnostics, do not like the “certainty” of atheists, or what they perceive as certainty. And because of this they apply two rules to atheists that I doubt they would apply to any other subject, person or opinion – they expect atheists to prove a negative – and I don’t need to explain why that is ridiculous, and also, they insist that atheists alone need certainty in order to “believe” something does not exist. No one would require anyone else to be absolutely 100% certain that there is not a bowl of spaghetti circling the earth (for some reason a favorite philosophical example). I’m sure enough about it. I believe things because I have enough reason to believe. Otherwise, we would never get out of bed – or stay in bed. That’s the way I do it and the way everyone does it, including agnostics. And we should all know it. The only time that people expect different is when there is some emotional involvement. Then they either insist their belief is built on 100% certainty or they insist someone who disagrees with them must. But, enough about God for the moment.
Bugliosi is angry, of course – he is outraged – hence his title. Nor do I blame him for being angry about the result. If I believe someone was murdered and the DA and police botched it, I’d be angry too – and I was – very much so, during the Simpson trial, watching mistake after mistake. Early in his book he complains bitterly that the D.A. filed the case downtown, which guaranteed a largely black jury. Leave aside that it SHOULD not matter if the jury is white or black, he’s right that it can (certainly not always). You can think that is racist of him and I, but the defense and prosecution were both made aware by their jury consultants that black jurors were very likely to vote based on race. The prosecution ignored it and went with Clark’s inaccurate feelings that black women would sympathize with a woman who was abused and murdered. The opposite was true. Their bias was against Nicole Brown, even though she was murdered, because she was a white woman who married a rich black man. I’m not suggesting they knew this and acted deliberately, but the results from the pollin were extremely strong. When Bugliosi complained early on in the case on tv about where the case was filed, the D.A., Garcetti, called him and tried to explain that they had no choice but to try it there once they had started a grand jury (never completed) under California law. Bugliosi nicely (he says) explained to him that he was completely wrong on the law, but held back half the reasons while speaking to Garcetti (which he gave in his book). But, he leaves something out in complaining. If the case was brought before an all-white jury, as Bugliosi apparently thought appropriate, the black community, the defense and also the media would have been all over them and thought the results thought just a matter of prejudiceun if Simpson was convicted. If it came out that filing somewhere was done to avoid black jurors (which is unconstitutional), any conviction might be overturned.
For Bugliosi (and many people), if he has a perspective, that is it. He decided, for example, that the famed forensic expert, Dr. Henry Lee, did not do a great job for the defense, as many viewers and even jurors thought, but did a terrible job. Admittedly, watching him and then reading his testimony and opinions given during the case (in the Schiller book), I had my doubts about his testimony. But, Bugliosi pointed out the testimony of the prosecutor’s shoe expert completely shattered some of Lee’s claims. But, either he doesn’t know, or didn’t realize that Lee had serious doubts too all during the trial, and that he was always very reluctant to participate and wanted to back out numerous times – he had always been a witness for the prosecution and even had to get special permission to participate in Simpson’s defense. In fact, though very helpful to the defendants, perhaps because of his personality, he made life very difficult for them, discussing all his thoughts with prosecution scientists. Yet, Bugliosi believes Lee did not want to come back to rebut the prosecutions take down on his testimony because it was destroyed. It appears he just did not want to dedicate anymore of his life to it. In fact, the jury believed him more than the prosecution’s expert. I see no reason, reading Bugliosi’s summary of the prosecution’s expert’s testimony, that it was more credible than Lee’s. It doesn’t matter for Bugliosi. If it helps him win the case, he believes it, and therefore it has to be believed by everyone or they are idiots.
Another way in which Bugliosi shows strong bias is in complaining that the defense was allowed to show evidence of Fuhrman’s racism. He asks what if that was allowed in every case. Maybe he has a point. But, in this case, he ignores or dismisses as unimportant that there was very strong evidence of Fuhrman’s extreme racism and that even Judge Ito’s wife, a former police officer had investigated him. There were numerous witnesses to his bias and brutality. Frankly, I thought Judge Ito was unfair in how little evidence of it he let in. Remarkably, Bugliosi admits that he also knows that Fuhrman is an avowed racist. Very quickly you realize why he is so offended by Ito’s rulings which essentially put Fuhrman on trial. Fuhrman had to escape scrutiny because it led to the defendant’s acquittal and therefore, for Bugliosi, that is unfair. His bias definitely was a factor. But, I do not think it would have been were there not so many instances of doubt as to whether evidence was planted.
Unlike Schiller, at least tried to give the arguments on both sides and frankly indicated that O.J.’s own lawyers had doubts about his guilt – and I think Schiller too thought him guilty. Schiller acknowledges though that his contact was through the defendants, mainly Kardashian, but once he was writing a book, put on his journalist hat. Bugliosi could care less. He just prosecutes one side of the claim as if he were still working for the State of California. He argues that the gloves actually fit and also that they must have shrunk and that’s why they didn’t fit. This self-contradictory kind of thinking that he would complain bitterly about it. He also complains that Marcia Clark did not question a witness for three months straight – after basically describing her as incompetent. Which is it? I doubt he would let a witness get away with that.
He also made a crazy metaphor about trying to put together a masterpiece of a trial and that when you paint a masterpiece, you don’t let others paint parts of it – which is completely untrue if you know anything about painting (although he uses the Mona Lisa as an example, and it was painted by da Vinci along; but that is a tiny painting and many larger works, including, e.g., the Sistine Chapel, are painted by groups or a famous artists work). It is also true of many endeavors, including writing books. Not surprisingly, there are no acknowledgments in Bugliosi’s book, you know, the part where you thank everyone, including your editors, for their help, without which help the book would not have been possible.
He also complains that the prosecution did not show a video first, in which O.J. was seen laughing at his daughter’s recital on the day of the murder, and at which Denise Brown testified he had been glowering. That way she could say that he was laughing at that moment but angry later on after the recital; that may have been good strategy, but the truth was, Brown was a terrible witness and not credible – she was caught in a lie. He’s basically saying the prosecutor should have helped her. He makes the same argument when the officer first on the scene testified that they really weren’t trained how to preserve a crime scene – in Bugliosi’s opinion, the prosecutor should have prepped him to lie. Again, he’s right about the strategy, but morally? Apparently, according to Bugliosi, it is unethical to defend a man he thinks guilty, but not unethical to prep a prosecution to lie. Yet shortly later these comments, he comments that the prosecutor has to expect the defense to have the morals of an alley cat (which I would think should be a sexual reference as alley cats usually don’t prosecute cases). In yet another controversy – and important one about where was some missing blood that the police drew from O.J. (because it could have been planted elsewhere), he simply takes the witness’s word that he had drawn less than he stated. I can see arguing that maybe that was what happened, but not that it was obviously what happened.
I could go on and on about his book but I won’t. Thank goodness Bugliosi never became a judge as he is completely biased. He is so lost in his certainty that he says that he would bet against 10-1 odds (of course, he could have said a million to one as there is no way to prove this) that the reason the jury was confused by the difference between police abuse, even outright murder of minorities by an element in the LAPD – which the black jurors were aware of in their own lives – and police planting evidence, which was rare. And he also believes that only he and Cochran (no idea why Cochran, as Bugliosi painted him so incompetent) knew about the jury’s confusion about these two issues. On the other hand, in this case, Bugliosi was certain that the D.A. and not the LAPD, lost by virtue of their incompetence. I could not disagree more with his conclusion. Both the LAPD and the DA exhibited tremendous incompetence (as did most of the defense attorneys and the judge). Why LAPD incompetence in this case is somehow non-existent or unimportant for Bugliosi is odd, as he has already stated that incompetency is simply a part of being human, with which I totally agree. We make so many mistakes. Fortunately, we have memories and sometimes we can, often at great length, even over centuries, improve the way we do things.
The prosecutor is simply always right in his world and Simpson was guilty, without possibility. Let me quote him near the end of his book when he is discussing facts he cannot explain away:
“[T]he reader knows this book is not an analysis of every single issue in the Simpson case. . . Here’s the reason. Since we know Simpson is guilty, any defense points or arguments which have not been dealt with in this book, regardless of what they are, by definition could not change that reality. (And any reader who, at this point in the book, isn’t convinced beyond all doubt of Simpson’s guilt, certainly would not become so if I addressed myself to some additional ancillary issues.). . . .”
Is he kidding? (NO). His we win/you lose argument is not unheard of in the world of attorneys. It is probably a good way to approach many cases as an attorney, though it can lead to thinking which will hurt, not help the attorney’s case. Let’s get back to God now because I think Bugliosi’s views show hypocrisy on his part. He says that he is an agnostic, and cannot understand atheists, because (in his view) they are certain. Yet, read any chapter in the book, and you see that he is certain beyond certain – and demands the reader be certain – about a case where certainty is not possible at all. Even if there was an eyewitness, you still couldn’t be certain they did not have motive to lie. But, he is uncertain about God to the degree he cannot be an atheist, although reading his words, he sees no evidence for God and could write hundreds of pages against religious ideas. In other words, he cannot disbelieve something of which he sees no credible evidence because it is impossible to be certain, but he believes something he didn’t even see with his own eyes and about which there was no direct evidence despite the lack of certainty.
I really review his book at all because I am fairly sensitive and sometimes even angered by what I think unfair arguments and judgments based on unthinking bias, particularly (and admittedly) by some prosecutors, who have the power of the state behind them, and crush people who cannot afford a defense. Yes, it is important that justice be done in the conclusions juries or judges reach. I’d like the guilty to be found guilty and the innocent found innocent. Unless we have some personal involvement where we seek an unfair result, most of us want them to get it right. But we will survive them getting it wrong (most of us, anyway) and do all the time. No very controversial trial verdict has ever seemed to me more clearly wrong than the acquittal of Casey Anthony for murdering her young daughter. As angry as I and many others were, we moved on. I’m not sure if not writing this right now how many times I would have thought of it in my life, but probably very little. But, if our system fails, we must either fix it or we will eventually fail completely.
I’m not going to read every book written on this. Two very long ones is enough. There are too many others, some of them ghost written. Many of the defense attorneys, both main prosecutors, Simpson (2 books), at least one Nicole’s family, some of the jurors and a legion of commentators. It would not surprise me if Ito does not write his own. And though it is possible, I doubt my mind will change. Here’s what I think happened:
OJ planned to murder Nicole. He had opportunity. We know he was at least within a short drive from his own home when they were killed. I have to believe that Goldman’s presence was accidental. I can’t see how OJ would know he would be there, or want to take the risk. I really don’t care about O.J.’s motive much, but the fact of his jealousy, the frequent bouts of abuse are enough for me. I actually agree with Bugliosi on is main point supporting his certainty – the likelihood of the deep cut on his hand at the very time he was within driving distance of the murder or soon thereafter just seems too convenient. And O.J. never gave a convincing story to his own defense attorneys about how and when he cut it. He also conveniently said he broke a glass while on the phone with the police while he was in Chicago. How convenient. But it can in no way provide certainty as claimed by Bugliosi. Coincidences do happen. People can forget how they cut themselves even if unlikely. And they do get confused and give out different stories (as O.J. did about what he was doing at the time of the murder).
Unlike Bugliosi, I do not at all think the reason, and certainly not only reason O.J. was acquitted, was because the jury did not understand the difference between police abuse of minorities and planting evidence on them. Why would they not understand that simple difference even if it was not explained to them? The fact is, the jury had plenty of evidence of the police planting evidence if they believed it. The reasons I think there was an acquittal are complex, because most things in life that are very complicated have multiple reasons, especially when it comes to people’s opinions. Here’s my list:
- There was evidence of evidence being planted, including blood evidence, or contaminated.
- There was no single piece of evidence which proved beyond a reasonable doubt that he was guilty.
- The glove did not fit.
- There can be doubt as to how he cut his finger.
- There were people who observed him who testified he did not act like someone who had murdered someone.
- There were questions about the time line, people walking by when the murder had to take place in order for O.J. to get home for the limo driver to see his shadowy figure enter the house, who saw nothing going on (indicating it happened afterwards).
- Racial bias against convicting a black man.
- Anger with Fuhrman and the police in general.
- The personalities of the prosecution attorneys including their evident lack of competence on so many occasions.
So, how do I explain away these doubts? I don’t. I said that I believed he was guilty. I did not say I was convinced that the jury should have found him guilty. If I was on the jury I may have voted not guilty too. It is too easy to say what you would have done if not under the gun yourself. But, if I did, I probably still would have believed him guilty and blamed the prosecution and the police for screwing up, and the need for us to maintain a fair system where they have to prove guilt beyond a reasonable doubt.
 I should say, because I don’t want to slander anyone, that when Oprah asked Christopher Darden if he and Marcia Clark had sex during the trial, he just complimented Clark and did not answer the question, causing Oprah to ask if he was taking the 5th. He seems like a principled guy, although he messed up the trial royally, and I don’t think he would let the question hang there unanswered if it wasn’t true.