Thursday, September 29, 2016

Oh, O.J.

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 large and strong man, he was, in fact, so fast that he was on his college 4 x 100 relay team which held the world 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 (although I'm a Gayle Sayers' man, and had his career not been so short . . .).  From 1972-1976, basically while I was in high school, O.J. averaged 1540 yards per 14 game season and 5.1 yards per carry. If you don’t follow football, that was and still is awesome. Perhaps at that time Jim Brown was greater and maybe now some think Barry or Payton was, but Simpson was and still 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 die hard racist did not like him, and just a guess, they probably would have too, despite themselves.

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 O.J. (and I call him that because that is how I know him, though it outrages one of the authors I will write about) 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,[1] domestic abuse, a barking dog, a shadowy figure, a failed unofficial lie detector test, almost a suicide, a puzzling seemingly beloved wannabe actor 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 horribly – 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, including as to O.J.'s guilt - the difference is, I am 95% sure and Bugliosi 195% certain (yes, I know that is not possible, but . . . ). Bugliosi, deceased now, 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, I almost always want everyone to argue in a way I see as 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 their certainty without back up. I never mind if someone has an opinion based on speculation or feelings when it is admitted to be such. I have many such opinions. But I hate it as much when someone claims to just “know” something to be true or false, particularly as to what someone else is or was thinking without at least some sufficient reasons to conclude it. This doesn't mean that opinion isn't just that - opinion, or that I am the final arbiter, just that neither is Bugliosi or anyone else.

I also read American Tragedy, by Lawrence Schiller, which I will deal with first. Schiller is a journalist/producer who was a very minor player tangentially on the defense side (he once helped the defense gain some access to some technology they needed), which gave him access to OJ’s friend and one of his lawyers (sort of), Robert Kardashian, 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 than Bugliosi. Even if he mostly had access to the defense side – he still provided the prosecution arguments fairly.

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 was questionable as it was not discovered until much later), that blood was possibly planted in the Bronco, that the blood tests were done in a way that made contamination quite possible if not unlikely 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 acknowledge that he did anything wrong, and he eventually took the 5th amendment to avoid probable criminal charges. To many people's disgust, Fuhrman became the trial within the trial.

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 who even coached them 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 and changing right up until its last days.

I watched the trial 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?”
“Uhhh, no.”
“No?”
“Yeah, as in ‘no I could not see it.’”
“You sure?”
“Yes.”
“Okay, then.”

That’s of course an impression. I have argued with non-attorneys, but also many 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 great at their job. So, I admit that I was joyful when I read in Outrage, Bugliosi (who I will jump to for this) commenting on Cochran's abilities 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 - "If it does not fit, you must acquit," is not his own, but the creation of another lawyer on the team, a much less well known co-counsel, Gerald Uelman, the dean of a California law school.

After a good start at a hearing, F. Lee Bailey proved so embarrassing to the defendant that the rest of his attorneys did not want to give him any more witnesses and he had to pander to O.J. himself to get them. 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, even incidentally. 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 than Clark. 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 O.J. convicted, that insist the gloves fit and he was deliberately making them not fit and others who claim that the gloves 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 for one exchange.

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 is not entirely 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 Fuhrman 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, but some less so. 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 himself 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 not for that, but 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 trying to take back his own stolen memorabilia, Simpson got by far the longest sentence among the 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, not surprisingly, 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 further 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, can reasonably be seen as an admission of sorts. No one was shocked. Most people think he’s guilty and he knew it.

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 from their jury consultant 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 have gotten 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 was trained to take a side and make a case, but not necessarily to be fair. I could catalog all the inside baseball I learned from Schiller, but, it would take up too 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 pictures of 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.,” he famously said) but someone deeply involved with the problems of the black community.

Bugliosi’s book, Outrage, was different.  I want to talk about it as an example of my thinking someone is right in many of 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. Bugliosi apparently won all but one felony cases he tried. However, it is true that 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, was 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, and that O.J. is most likely guilty of murder, almost certainly, I am still appalled at his argument.

Bugliosi began this book by essentially stating that anyone who doesn’t think O.J. 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 of the murder. There often isn’t, and there can still be a conviction on circumstantial and other evidence. But then you can’t say that it is the most clear case of guilt. 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 involved’s personal or social life, and that it would be impossible for anyone to follow every line of evidence or argument. Everyone was bound to make many mistakes and have memory lapses. DNA was new then and most of the attorneys did not even understand it. How could the jury learn it in that setting?

Bugliosi 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 being not as insane as believing Simpson accidentally bled on all these spots before the murders or that Simpson was defending himself, still so highly unlikely that he felt no need to defend it and just says the book is not for doubters. Personally, 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, Bugliosi goes beyond this. Everything and I mean everything about the defense is mocked. He mocks the fact that Simpson, instead of just 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 himself 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 type 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 even all the time – that doesn’t mean the attempt to be fair is wrong). Reading just the introduction to the book I had to wonder whether Bugliosi wasn’t aware of some of the evidence or didn’t care. It seems the latter, at least much of the time.

Having been so negative about him, I have to applaud his finding laughable the lauding of the attorneys involved in the case by the media. 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 should think you are the only one who has any abilities, or 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 in other words 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.’” He adds, and I also 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 back when the trial was going on, that at least Robert Shapiro, technically the lead defense attorney, but also not a very experienced trial attorney, was among the few present who could really cross-examine a witness like an attorney should be able to do. Bugliosi agreed: “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 terse 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 before they took the stand. I can’t agree more that it is critical, although, of course it happens. Schiller, who, again, was not an attorney, also made reference to the defense team itself belatedly realizing the witnesses had to be interviewed by the attorney who was questioning them; not just by an investigator. Bugliosi gives no credit to the fact that this was no ordinary trial. In the same way, he gives a wonderful pseudo-summation right in his book, but never considering that maybe the attorneys just didn’t have time 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 your 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 and sometimes, I ended up completely winging it.

Bugliosi was a little nicer when it came to the New York defense lawyers, Scheck and Neufeld, who he at least found competent. He understated it, and might even 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 meant himself and probably a few others. 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 at times. 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. Bugliosi 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 often disturbing for people to discuss it or be contradicted about it. Believers, even agnostics, do not like what they believe is the “certainty” of atheists. And because of this they apply two rules to atheists that I doubt they would apply to any other subject, person or opinion. First, they expect atheists to prove a negative – and I don’t need to explain why that is ridiculous. Second, they insist that atheists alone need certainty in order to “believe” something does not exist. No one would require anyone to be absolutely 100% certain that there is not a bowl of spaghetti circling the earth (for some reason, this is a favorite example given by philosophers), but an atheist must "prove" there is no God. I’m sure enough about it. I believe things because I have enough reason to believe, like everyone else. Otherwise, we would never get out of bed – or stay in bed - because you can't have 100% certainty. Even agnostics have beliefs that are not based on certainty, but likelihood. 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 prove it. And, ironically, many critics of "certainty" by atheists, do not have the same criticism of religious people who are "certain" about their belief in God. But, enough about God for the moment. I'll come back to the topic.

Bugliosi is angry, of course – he is outraged – hence his title. I do not blame him for being angry about the result. If I believe someone was murdered and the DA and police botched it, I’m 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, but often enough). 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 the advice 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, in fact, it is quite possible they were biased but then took their duty seriously and came to a conclusion based on what they saw as the evidence. I'm just say the results the consultants got with mock juries were extremely strong. In any event, 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 (which was never completed) under California law. Bugliosi nicely (he says) explained to Garcetti that he was completely wrong on the law, but held back half the reasons while speaking to Garcetti, giving them in his book. Trust me, it should not be a surprise that a D.A. does not know the law.  But, in complaining, Bugliosi leaves out an important consideration. 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 just a matter of prejudice if Simpson was convicted. If it came out that filing somewhere was done to avoid black jurors (which is unconstitutional), the conviction might be overturned. It should be.

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 a terrible one. Admittedly, watching Lee and then reading his testimony and opinions given during the case (in the Schiller book), I had my doubts about his testimony too. 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 all during the trial, and that he was always very reluctant to participate and wanted to back out of it numerous times – he had always been a witness for the prosecution before and even had to get special permission to participate in Simpson’s defense from his employers. In fact, though very helpful to the defendants, perhaps because of his personality, he also made life very difficult for them, discussing all his thoughts with prosecution experts. Yet, Bugliosi believes Lee did not want to come back to rebut the prosecution's take down on his testimony because it was destroyed. It appears rather he just did not want to dedicate anymore of his life to this one case. In fact, in the end, the jury believed him more than the prosecution’s expert. I see no reason, even 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 for it. There were numerous witnesses to his bias and brutality willing to testify. 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's bias had to escape scrutiny because it helped lead to the defendant’s acquittal and therefore, for Bugliosi, that is unfair. And no doubt Fuhrman's bias definitely was a factor. But, I do not think it would have been so were there not so many instances of doubt as to whether evidence was actually planted in this case. Remember, the glove did not fit. The police did make many mistakes. Many.

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. He acknowledges that his contacts were through the defendants, mainly Kardashian, but once he was writing a book, he 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 and not a writer. He argues both that the gloves actually fit and also that they must have shrunk and that’s why they didn’t fit. It's a self-contradictory kind of thinking that he would complain bitterly about it from anyone else. He also complains that Marcia Clark did not question a single witness for three months straight, which must have looked bad to the jury (I disagree)  – after basically describing her as incompetent. Which is it?  Should she have questioned witnesses or not. I doubt he would let a witness get away with such fuzzy thinking.

He also made a crazy metaphor about trying to put together a masterpiece of a trial that when you paint a masterpiece, you don’t let others paint parts of it – which is completely untrue if you know anything about some painting. He uses the Mona Lisa as an example, but that is a tiny painting. But, many larger works, including, e.g., the Sistine Chapel, are painted by groups or a famous artist's workshop. Group effort 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. I'm sure in his world, he and only he can be thanked.

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. He is right that doing so would have been good strategy, but the truth was, Brown was a terrible witness and not credible – she was caught in a lie. That was the problem. And he was aware of this.  Bugliosi is 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, I guess the prosecutor should have prepped him to lie and say they were well trained. 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 witness to lie.  Yet shortly later, he comments that the prosecutor has to expect the defense attorney to have the morals of an alley cat (this somewhat slanders alley cats, as their metaphorical lack of morals is solely directed at their promiscuity, not for being worse than other cats in other ways). In yet another controversy – an important one about what happened to some missing blood that the police drew from O.J. (because it could have been planted elsewhere), Bugliosi simply takes the witness’s word after the fact that he had drawn less blood than he earlier stated. I can see arguing that maybe that was what happened, but you cannot state that it was obviously what happened.

Thank goodness Bugliosi never became a judge, as he is completely biased. And, unfortunately, this often happens.  Bugliosi 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 acquitted, was that they were confused by the difference between police abuse and police planting evidence, which was rare and he insists did not happen here (because he just knows). And he also believes that only he and Cochran (no idea why Cochran as Bugliosi previously painted him as 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 the case by virtue of their incompetence.  I could not disagree more with that 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, a fact of which I am in total agreement. We all 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 or become very good at certain things.

In writing about a case with thousands of pages of testimony and pieces of evidence, I can only touch on a few here. Bugliosi, as with Schiller, touched on many more, as they wrote long books. There were many issues that Bugliosi himself can't explain away, but he does anyway en masse. Let me quote him near the end of his book when he is discussing troublesome facts:

“[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, though it can lead to thinking which will hurt, not help the attorney’s case.  But he is not actually prosecuting a case, but writing a book, even if that book is meant to explain why the people lost. It calls for perspective and balance (which, ironically, he asks for in his book on Clinton).

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 too 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. And there wasn't. But, he, Bugliosi, is uncertain about God's existence to the degree he cannot be an atheist, although reading his words, he sees no evidence for God and says he could write hundreds of pages against it. In other words, he cannot disbelieve something of which he sees no credible evidence because it is impossible to be certain, but he believes O.J. murdered his ex-wife and friend with absolute certainly, even though he didn’t even see it with his own eyes and there was no direct evidence. More, he won't accept God on faith alone, but accepts on faith alone that the defenses raised must be dismissed.

As I explained earlier, I am sensitive about, even hate, what I see as unfair argument (though like everyone, I'm sure I am guilty of it sometimes too - I hope not as much as Bugliosi).  But, this kind of Bugliosian argument, is especially troubling when the weight of the law is behind it. Some prosecutors, who have the power of the state behind them, and crush people who, unlike O.J., 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 which leads us to 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 that I would have even thought of it again in my life, certainly very little. But, if our system fails, we must either fix it or we will eventually fail completely. It's that important. One of the ways to do that is to criticize certainty and unfair pressure by the prosecutors.

I’m not going to read very book written on this case. Two very long ones are enough. There are too many others, some of them ghost written. Many of the defense attorneys, both Clark and Darden, Simpson (2 books), at least one person in Nicole’s family, some of the jurors and a legion of commentators have written them. It would not surprise me if Ito does not write his own now that he retired. And though it is possible, I doubt my mind will be changed. Here’s what I think happened:

OJ planned to murder Nicole and did. 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. O.J.’s motive, the fact of his jealousy, the frequent bouts of abuse, are enough for me to believe that. I actually agree with Bugliosi on his main point supporting his certainty – the deep cut on O.J.'s hand at the very time he was within driving distance of the murder or soon thereafter just seems too coincidental. And O.J. never gave a convincing story to his own defense attorneys about how and when he cut himself. He also conveniently said he broke a glass while on the phone in Chicago. How convenient. But it also 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) without being guilty.

Unlike Bugliosi, I do not at all think the reason, and certainly not the 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 of reasons that I think there was an acquittal:

  • There was evidence of evidence being planted or contaminated, including blood evidence.
  • There was no single piece of evidence or collective 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 and believe O.J. guilty myself? I can’t explain some of them. 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 acquit, I probably still would have believed him guilty and blamed the prosecution and the police for screwing up, yet still felt the need for us to maintain a fair system where they have to prove guilt beyond a reasonable doubt. If it were my family member or friend, I'm sure I'd be less reasonable.

I do remember fairly clearly the office I worked in at the time gathering about to watch the verdict. My friend, Don, who comments here from time to time, was certain he would be acquitted. I was 50-50 about it, though I certainly believed him guilty. Alone in the office (probably 40 + people at the time), we were both outraged at the prosecution and police and shocked at the general incompetence of most of the attorneys. Needless to say, it was a mostly white office.



[1] 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.

2 comments:

  1. Excellent dissection of one of the most famous news events of our lives.

    ReplyDelete
    Replies
    1. Thanks. It was "it" for that year or so.

      Delete

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About Me

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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .