The Search for Justice (60 page)

That night at temple, I was glad to see that Rabbi Zeldin would be officiating at our service, accompanied by Cantor Nathan
Lamb, one of the great singing voices in the country, and a teacher and coach of many professional singers. Rabbi Zeldin had
told Linell that he had taken a lot of heat from members of the congregation for giving me the Torah to hold during the Rosh
Hashanah services. “I don ’t regret it, though,” he said.

As we took our seats, the tension in the room was palpable. This was clearly a congregation that had sided with the percentage
of the American public that believed O.J. Simpson to be guilty. To them, I was the symbol of lawyers using the system to gain
an acquittal. The Barbara Walters interview would run at ten that night, right in the middle of services. But it would be
reported, and shown again in news segments, over the next twenty-four hours. I could only hope on this, the highest and most
sacred of holy days, that the members of my temple would learn of my feelings about race, and later share what I considered
to be one of my proudest moments: “Not only did we play the race card, we dealt it from the bottom of the deck,” I told Barbara
Walters. I hoped they ’d understand how angry I had been when Cochran compared Fuhrman to Hitler and the Holocaust. I could
feel their eyes on my back as the service went on. Linell sat beside me, her back very, very straight.

What a difference a day makes. When services continued at
the temple the next afternoon, the Walters tape had aired and been picked up by virtually every television network. There
was a much greater understanding of my role as O.J. ’s defense attorney and my disassociation from the language and symbolism
that Cochran had used to make his argument. However, while I felt somewhat more welcome than I had the night before, there
was still a strong negative response to the verdict itself. How ironic, I thought, that the trial should culminate with the
Day of Atonement, and that in this place of spiritual awareness and awakening, I should be the focus for the conflict and
anger the case had provoked.

Cab drivers now ask me questions about the Fourth, Fifth, and Sixth Amendments.

—P
ROFESSOR
P
AUL
R
OTHSTEIN
Georgetown University Law School

A
few days after the verdict, I went for my annual physical— which was two years overdue—and as I stepped off the elevator,
a well-groomed man in his fifties, in shirtsleeves and tie, walked up to me and said, “I ’ve just gotta tell you, that was
the dumbest jury on the face of the earth.”

“Excuse me?” I said. “Who… who are you? And if you don ’t mind, may I ask what do you do for a living?”

He gave me his name, and said, “I ’m a surgeon.”

“Well, Doctor, that ’s a very interesting comment you just made,” I told him. “How many juries have you served on?”

He looked at me with astonishment, shaking his head. “I ’ve got overhead,” he said.

“Well, what do you do when you get a jury summons?” I asked.

He said, “I ’ve never been called for jury duty.”

“Surely you ’ve received some notices at one time or another?”

He nodded. “Oh, absolutely, but I just send them to my attorney.”

“Well, the system only works if everybody participates in it,” I said.

Protesting, the surgeon told me how many people worked
in his medical practice, what a heavy workload he dealt with, how many patients he had.

“Don ’t you take a vacation?” I asked. “Don ’t you ever take any time off? I know the Simpson jury went on forever, but that
’s not the case with most juries, and sequestration is highly unusual. Couldn ’t you find one week? Two weeks?”

He was still shaking his head. “I ’ve got too many responsibilities.”

“Are you suggesting that some citizens are too important to serve on juries?” I asked him. “If you are, then I think you completely
forfeit the right to criticize verdicts you don ’t like.”

I deliberately made him uncomfortable. But I ’ve always felt that jury service is a duty and privilege of American citizenship.
It ’s right up there with voting. Unfortunately, many Americans don ’t do that, either.

The prosecution says to a jury, “Look how it all fits together.” It ’s the job of the defense to then say, “Look where it
all falls apart.” In this case, the prosecution immediately concluded that O.J. was the suspect, the only suspect, and guilty
of the crime. Then they tried to build the case around that. Whereas the defense asked, What do they have that establishes
this, and where are the inconsistencies? Frankly, it ’s much easier to pick a case apart than it is to put a case together.

The prosecution made two errors: They built the case on Fuhrman—and with him, Vannatter and his “reckless disregard for the
truth”—and they built it on an endless defense of DNA as well. In terms of Fuhrman, they knew about his history when, or even
before, we did—possibly as early as the preliminary hearing, but certainly before the trial. They could have pitched him over
the side then and not left his trial testimony (and thus their whole case) open to dissection and doubt. For whatever reason,
they chose not to do this.

In terms of the science of blood, I think the prosecution overtried the case. They attempted to prove not only the scienee
but everything behind it, and not only lost the jury, but bored them. When you lose a jury, you ’re in trouble; once a jury
is bored, you ’re in
big
trouble.

Against their “mountain of evidence,” where did reasonable doubt come from? Their mountain of evidence collapsed under an
avalanche of incompetence, contamination, and lies. On one hand, there ’s evidence of blood in a Bronco. But the first witness
who said he found that blood was found to be, demonstrably, a liar. In addition, there ’s ample evidence that for three months
that car was wide open and available to anyone who wanted to climb into it.

Then there ’s the glove. If a bloody glove is found at a crime scene, and the prosecution theory is that the person who dropped
it there was in a hurry and bleeding, or had blood all over him, there should be evidence of that leading to and from the
glove. Yet the ground around and beneath it was completely undisturbed. There were no blood or tracks or leaf-and-dirt disturbances
leading up to it, none leading away. Fuhrman described the glove when he retrieved it as “wet and sticky.” Eight or nine hours
after it was used in a murder? Why wasn ’t it dried out? Had it been stored in a moisture-retaining bag and taken from one
place to another?

How did O.J. ’s blood get to Bundy? By his own statement to the detectives, he ’d been there often in the previous year and
a half, to visit and play with his children, their friends, and the dogs from both houses. How did it get on the foyer floor
in Rockingham? Well, why wouldn ’t O.J. ’s blood and DNA be at Rockingham? That ’s where he lived. How did the blood of the
victims become intermingled with his in the Bronco? I don ’t know. But with the initial questions to Mark Fuhrman and ample
evidence of lax police security for three months, we demonstrated how it
could
have happened. What about the blood and EDTA on the sock? What about the blood found on the Bundy fence that wasn ’t seen
two weeks before? It had EDTA traces and extraordinarily high DNA concentrations, with little degradation, in spite of presumably
being out in the elements
since the day of the crime. To me,
that
was what “didn ’t fit.” Add to this the demonstrated errors of the “cesspool” police lab and a woefully inept coroner, and
any jury finds itself faced with more questions than answers.

A lot of criticism has been directed toward the jury on reaching a verdict so quickly. I was just as stunned by the speed
of the verdict as anyone else on the case. How did they reach that verdict? How does
any
jury reach a verdict? It differs each time. A juror may come to a vote truly and honestly heeding the judge ’s instructions
to leave bias and assumption outside the jury room. But jurors bring their lives into the room with them—their experience,
their values, their ability to make careful judgments. Jurors (like lawyers and judges) are human beings, not computers, hence
the term “jury of your peers.” And as humans, they cannot help but respond to what they see and hear. They heard Fuhrman impeach
himself, and they heard Vannatter deny O.J. had been an early suspect. They listened as Dr. Lee said, “Something wrong.” And
they saw O.J. try on the murderer ’s glove, which did not fit.

If, in the same amount of time, the jury had come back with a verdict of guilty, would there have been the same accusation
that this jury failed to deliberate properly? After all, everyone watching the case had already formed their opinions. Why
should we have expected that the jury had not at least come to some tentative conclusions of their own? The trial, and their
feelings about it, was the only thing these people had in common, the
only
reason for them to be out of their normal lives and living with strangers. But for nine months, it was the one thing they
could not discuss. When that prohibition was lifted, what ’s the first thing they did? They asked each other, “What do you
think?” Is that incorrect jurisprudence, or is that logical human behavior?

Contrary to the prosecution ’s plea, the jury wasn ’t there to do justice on behalf of Nicole Brown or Ron Goldman. Contrary
to the defense ’s plea, they weren ’t there to do justice for past wrongs to black Americans. They were there to decide one
thing only. Had the People proved O.J. Simpson guilty of first-degree or second-degree murder beyond a reasonable doubt?

I contend that the same result would have been reached if they ’d spent two months in deliberation, poring through each witness
’s direct and cross-examined testimony, every item of evidence, and seeing, over and over again, the areas of real and reasonable
doubt. I stand by that contention not just on behalf of this jury, but on behalf of any other jury of twelve impartial citizens
you want to place in the jury room and present with this case.

I never believed that O.J. Simpson was being victimized by a racist police organization because he was black. I didn ’t believe
that his life and career had ever been viewed as a symbol of black America or that he was seen as a black hero. He was a brilliantly
talented sports legend, a charmingly successful commercial spokesman, a sometime movie actor, and to many, an American hero;
hence, my hope and intention that race would not be a deciding factor in the case.

Not until the media began separating out their poll queries—what black Americans think, what white Americans think—did the
case begin to split down racial lines. Racism also rode in on the back of Mark Fuhrman ’s credibility. Who or what Fuhrman
hated wasn ’t pertinent except to the degree that it pointed to his credibility as a witness—and, not incidentally, to the
credibility of the entire L.A.P.D. As one sheriff ’s deputy said in a letter to me after the trial, “When he stated he never
used the
n
word, we knew he was in deep fecal matter.”