*If It Doesn’t Fit, You Must Acquit*

-- By StephanieOduro - 26 Feb 2010

Introduction

Criminal jury trials are complex mechanisms for finding “justice” that are not infallible. Arguing a case in front of a jury is not an exact science. 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. The verdict was further proof that law is not a science; it is an art of persuasion. The O.J. Simpson trial taught this lesson by demonstrating what is and is not effective during a jury trial. It was also symbolic for revealing the ugly divide between minority and majority perceptions of the criminal justice system.

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."

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. Like Oliver Wendell Holmes expounded in The Path of the Law, the law is not made of logic. 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 are writing as though the prosecutors were novices who didn't know about trials, or who had never faced a competent defense. That's not true. So until you interpret them correctly, you're unlikely to make sense of what happened.

The Race Factor

The prosecution made several mistakes that the defense capitalized. They 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."

Maybe. But if the jury was a badly-chosen jury from the government's point of view, the race of the jurors is not the sole or predominant problem. If you're going to assert that the prosecution made jury selection mistakes, you need to say more than just that they weren't white people. Prosecutors convict non-white defendants before non-white juries every day of the week in the urban United States.

Justice is not blind. In Jerome Frank’s book Courts on Trial: Myth & Reality in American Justice, Frank argued that shaping a jury shapes the outcome of a case. 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 in Transcendental Nonsense and the Functional Approach 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.

Maybe. That's an assertion.

The mostly African American jury came from an inner-city that commonly felt distrust toward police officers and the judicial system. As part of O.J.’s defense team, Johnnie Cochran understood this well. Cochran 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.

The defense did what defenses often do when the evidence appears strong: they attacked the integrity of the police. That they did so successfully had something to do with Cochran, and something to do with Furhman, as well as something to do with the jury.

The prosecution was not adequately prepared for this racial appeal. They also failed to recognize the performance aspect of the trial. One cannot underestimate the correlation between the defense’s flamboyant performance and the jury verdict.

Of course one can, as one can overestimate it, which you may be doing. Anyone who has watched a broad selection of criminal trials has seen flamboyance both succeed and fail enough to doubt that there is a correlation, which you do not show but merely assert. Similarly, prosecutorial behavioral restraint is learned conduct, with its own strong social psychology basis. Characterizing it as a hapless non-response to showboating is tone-deaf.

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, much to the chagrin of the prosecution.

That's the contest in many criminal trials. To say it happened is just another way of saying the prosecution failed. The importance lies in showing how or why.

The Prejudice Factor

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.’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.

This is immensely overstressed. The State doesn't spend heavily on the prosecution of most trials either, and although its resources are in theory unlimited, working parity in the courtroom is attainable for defendants who have, in comparison to Simpson as he was, minimal resources.

Conclusion

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.

This may well be true, but you haven't shown it, just hypothesized it.

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.

Well and good. But those elements are present all the time in many courtrooms. Until you mention the word "television," you haven't even begun discussing what is really going on.

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.

Perhaps that's the lesson to learn here; I would be more inclined to use for an illustration of these fundamental and rather well-worn points a less atypical trial situation. This case offers an opportunity to consider issues you do not consider at all: the relation between the media and trial process, the nature of television, the effect of defendant celebrity on the outcasting process that prosecution necessarily involves, and the effect of instant celebrity on other trial participants. If you want to write about these matters, this particular trial is a necessary incident. If you want to write about other aspects of the trial process, however, this is a poor instance to choose, because the things that make it different, all but pathological, drown out the elements it shares with other criminal trials conducted under more routine conditions.