Crime Without Punishment

Why The Juice Is Loose.
By Gregory McNamee

The Run of His Life, by Jeffrey Toobin, Random House, $25

THE CRIMINAL TRIAL of the former football great O.J. Simpson on the charge of murder, a trial that overshadows the Gulf War as the media event of the 1990s, has been over for nearly a year. The civil trial against him, charging that he violated the civil rights of Nicole Brown Simpson and Ron Goldman by murdering them, is now under way, and with considerably less fanfare--an abatement in the media bombardment for which we should all be grateful.

The criminal trial, Jeffrey Toobin observes in his ably written book The Run of His Life, involved "92 days of testimony, 58 witnesses, 488 exhibits, and 34,500 pages of transcripts." Toobin was on hand for every numbing moment, and he reports his findings in his dense yet thoroughly readable account, which may be the only one of the many books to have come from the trial that does not seek to make its author a hero.

Toobin does not tantalize. He announces early on a conclusion that many observers reached before the criminal proceedings began: O.J. Simpson, football star and minor celebrity, is guilty of having committed double homicide on the night of June 12, 1994. The jury did not agree with Toobin's conclusion: It let Simpson walk, shrugging off a body of evidence that, in the author's view, establishes Simpson's guilt beyond doubt.

Most black Americans, according to polls conducted at the time, agreed with the jury. Most white Americans did not. That ethnic division, Toobin holds, was a natural outcome of the conduct of the trial, for Simpson's defense team made race, and not the guilt or innocence of a single man, the issue of contest. Politically hijacked from the outset, the trial took on a Rashomon-like quality in which differing accounts of what had happened on that June night mattered less than did differing versions of the kind of man O.J. Simpson is.

Toobin has his own answer, citing "the banality, self-pity, and narcissism that are the touchstones of (Simpson's) character." Yet, as a former trial attorney himself, he expresses a sort of indignant admiration for the defense strategy, a masterpiece of indirection--and one that attorney Robert Shapiro, its author, later tried to disavow. The race card, Toobin writes, was shameless, and shamelessly unbelievable, inasmuch as Simpson had taken great pains throughout his adult life to distance himself from the black community; small wonder that at the time of the trial, Jesse Jackson called him a "de-ethnicized Negro." As Toobin points out, when Simpson penned a supposed suicide note before embarking on his infamous, heavily televised freeway flight, he named among his 15 best friends only one black man, the fellow football player A.J. Cowlings; the rest were wealthy, middle-aged white men. But, as Simpson himself once said, "I'm not black. I'm O.J."

Regardless, the mainstream press, fearful of exacerbating ethnic tensions in the wake of the Rodney King verdict, never questioned the defense's making O.J. an African American hero--a misdirection that then allowed the defense to make grand, unsubstantiated claims that Simpson was in the dock as a result of a racist conspiracy engineered by the Los Angeles Police Department.

The misdirection was successful, Toobin writes, because it was played out before a sympathetic jury, a jury composed of black men and women whom pre-trial polling suggested were likely to support Simpson's claim of innocence. That jury, the polling also revealed, was disposed to dislike the lead prosecuting attorney, Marcia Clark, a severe woman who, writes Toobin, tended to see her criminal cases as clear-cut instances of good against evil, never mind the subtleties of interpersonal politics. (Yet, Toobin reports, "the Simpson case blurred the lines between the good guys and the bad in a way that Clark had never encountered.")

Her conviction that she served the forces of good caused Clark to make hubristic mistakes, Toobin argues. Famously, one of them was to embrace uncritically the testimony of Mark Fuhrman, the police detective who turned up evidence at the scene of the murder and at Simpson's house, and who incidentally happened to be a self-admitted sociopath with a long record of racist actions. Another was Clark's allowing the trial to proceed at warp speed, which played to the defense's advantage by cutting the time the prosecution had to gather evidence. Still another was Clark's locking her case to a timeline that allowed no small variations, no margins for error, and that ultimately allowed the defense to cast doubt on her assertions.

Toobin shows what Marcia Clark did not successfully do throughout the trial: the preponderance of evidence of Simpson's guilt. Toobin notes that the blood drops found on Nicole Simpson's stone pathway matched Simpson's type, which is shared by only 7 percent of the American population. The blood on the infamous glove found behind Kato Kaelin's apartment, too, was a mix of Simpson's with that of his two victims. Those gloves, later the subject of an exquisitely stupid moment in the trial, were rare; Nicole had bought them, one of only a few hundred pairs made, for Simpson at a shop in New York City. Hair from the victims was found on the clothes Simpson had worn; so were fibers from their clothing. Prints from his shoes were found at the site of the murders. His Bronco was seen leaving the site of the crime at the estimated time of the murders. He had no alibi. He had a fresh cut on his hand, blood on his clothing, blood on his automobile. Although the initial prosecuting attorney, William Hodgman, wanted to amass further evidence to make the case air-tight, his associates urged that Simpson be arrested immediately. Simpson failed a lie-detector test with a score of -24. (Any score lower than -6 indicates that a suspect is lying. F. Lee Bailey later explained this away unchallenged, maintaining that Simpson was emotionally distressed at the time of the test.)

But in this case, evidence was not what mattered. Ethnicity was. So, too, was celebrity, and in this case the celebrity O.J. Simpson surrounded himself with celebrity lawyers--Gerry Spence, Alan Dershowitz, F. Lee Bailey, Robert Shapiro, and Johnnie Cochran, in Toobin's eyes the best of the lot--who were in the main more famous for being famous than they were for being great attorneys. None of those lawyers bought their own lines. All exhibited what one distinguished jurist calls "the indifference to truth that advocacy entails."

Toobin peppers his narrative with testimony to these lawyers' cynicism: the defense's readiness to plea-bargain for lesser charges the moment the evidence threatened to turn the jury against Simpson; Robert Shapiro's wife Linell's cheerfully announcing at cocktail parties, "Guilty, guilty, guilty"; Alan Dershowitz's equally cheerful admission, "Almost all of my clients have been guilty"; and Johnnie Cochran's building throughout the trial "a Potemkin village of assertions." Cochran's masterful construction of an alternate reality, writes Toobin, is what truly won the day for Simpson. "There was nothing beneath the rhetoric. No matter; the evidence mattered less that what Cochran said it would be. He had planted the seeds: the LAPD was corrupt; O.J. was virtuous; Nicole deserved what she got."

An implausible defense matched with a jury predisposed to acquit (three-quarters of those jurors, Toobin reports, believed Simpson to be innocent because he was a football player, and football players don't murder people), an incompetent prosecution, an even more incompetent judge whom the defense beat like a stolen mule: these things, Toobin writes in this sadly damning book, conspired to set Simpson free. TW

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