What 'The People vs. O.J. Simpson' got wrong about the jury

By Fusion Staff | April 8, 2016 | 4:38pm

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How great is the difference between “innocent” and “not guilty?” The finale of American Crime Story: The People vs. O.J. Simpson asked this question—or, more to the point, it asked us again. The first time Americans confronted this question with regard to O.J. Simpson was on October 3, 1995, the day his trial ended in acquittal. For many of the black Americans who had followed the trial, Simpson’s acquittal was cause for joy and relief: The system had finally been foiled in its attempt to wrongfully convict yet another black man. For the white Americans who watched the acquittal, the opposite was true: The system had failed, and let a guilty man go free. The verdict inspired first horror, then disbelief at the fact that the jury had been able to reach it. Since then, the American mainstream media has all but universally depicted the verdict as a travesty, and the jurors as dupes. The People vs. O.J. Simpson does little to challenge this approach. But is the real story more complicated than the one we remember? What did the jurors know that we have since forgotten—and that didn’t make its way into the show’s finale?

Criminal law is a lot like professional sports, in that its practitioners rarely admit that they want to win. Pro athletes will inevitably say something about going out there and playing their best for themselves, and trial lawyers will say that it’s their job to ensure that justice is served. Alan Dershowitz, who was a member of the seemingly endless pileup of defense attorneys at O.J. Simpson’s criminal trial, is a rare exception to this rule. He also takes umbrage at other lawyers’ opposing tendency in Reasonable Doubts, a book that details not his experience of the Simpson trial, but the argumentative tactics that helped Simpson’s team win an acquittal. Primarily an appellate lawyer, Dershowitz also delights in recounting a joke in which “a lawyer cables his client with the news ‘Justice has prevailed!’ The client hastily cables back, ‘Appeal immediately.’”

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In the last 20 years, O.J. Simpson’s defense team has become synonymous with the kind of courtroom razzle-dazzle we all like to think we would be immune to. Johnnie Cochran took on a second life, parodied on shows like South Park and Seinfeld, and the whole of the defense team’s strategies quickly boiled down, in the public’s memory, to his moments of showmanship and most outlandish statements. The People vs. O.J. Simpson corroborated this communal memory.

In “Conspiracy Theories,” the series’ seventh episode, Marcia Clark sounds off on a friend of Christopher Darden’s who believes the defense’s theory that the LAPD planted evidence against Simpson. It’s a deeply satisfying scene, in part because it lets Clark do everything she didn’t get to do during the trial itself: Voice her opinion without interruption, and sass a group of men without fear of reprisal. “Okay,” Clark says, taking one last noir heroine drag of her cigarette as she prepares to school her opponent. “Fuhrman made up his mind at Bundy that Simpson did it,” she says sarcastically, “even though he had no idea if O.J. had an ironclad alibi that would then ruin Fuhrman’s career and land him in jail. Fuhrman takes the glove at Bundy, makes sure it has Goldman and Nicole’s DNA on it, jumps in the car with the other detectives, [and] heads to Rockingham with it, where he gets into the Bronco—somehow getting all that evidence in it, including Simpson’s blood, even though the police didn’t have Simpson’s blood until the next day.” Then, Clark continues, “with the help of the rest of his super-secret cabal of O.J.-hating racist cops, Fuhrman starts getting everything just so.”

“These guys,” she concludes, “are a well-oiled conspiracy machine.”

They would have to be, of course, for this theory to make sense. It’s the theory we now associate with the defense’s strategy, and that now makes the acquittal seem so laughable in retrospect. This is the kind of far-fetched scheme that puts its supporters just a few rungs above those who claim that the world government is controlled by lizard people. The only problem is that it wasn’t actually their strategy.

In O.J. Simpson’s criminal trial, the defense team worked primarily at casting doubt on some of the state’s evidence, and trusting that this doubt would render the rest of the prosecution’s theory suspect. “The defense never argued that there was a widespread conspiracy,” Alan Dershowitz wrote in Reasonable Doubts. “We charged a handful of Los Angeles police officers with conspiring to lie about why they went to Simpson’s house and entered his property without warrant.”

This speculation was based on the fact that four police officers claimed they found it necessary to go to Simpson’s house merely to inform him of his ex-wife’s murder, and refused to admit that they may have been motivated by a desire to investigate Simpson himself, since his status as the victim’s ex-husband made him the most likely suspect from the beginning. The officers’ refusal to admit to this agenda, the prosecution argued, already served to mitigate their reliability.

“The jury,” Dershowitz wrote, “agreed with us on that conspiracy. Having established its likelihood, we then raised the question about the actions of an even smaller number of bad cops—Vannatter and Fuhrman—who could easily have sprinkled Simpson’s blood…on the socks, the glove, and the back gate. That was the conspiracy.” Simpson’s defense team alleged that Simpson’s blood could have been planted at the crime scene after a sample was drawn from Simpson to test against the blood at the crime scene—not on the night the police first discovered the murders. The fact that Vannatter did not submit the sample to the lab until three hours after he received it lent credence to this theory, as did the fact that the LAPD nurse who drew the sample testified that he had taken between 7.9 and 8.1 milliliters—despite the fact that only 6.5 milliliters could later be accounted for. (If you find this argument laughable, ask yourself whether you were persuaded by the defense’s claims in Making a Murderer, which hinged on a very similar point.)

When we reflect now on the jury’s acquittal of O.J. Simpson, we often regard it as an affront to logic, a decision made by a group of people who were tricked by a confederacy of sleazy hired guns. We see the defense’s case as an appeal to emotion over reason, a plea that the jurors—nine of whom were black—embrace their racial paranoia and accept an absurd conspiracy theory as gospel.

“There was condescension, colored by racism,” conservative columnist George Will wrote at the time, “in some of the assumptions that the jurors would be incompetent jurors and bad citizens—that they would be putty in the hands of defense attorneys harping on race, that they would be intellectually incapable of following an evidentiary argument, or, worse, that they would lack the civic conscience to do so. But those assumptions seem partially validated by the jury’s refusal even to deliberate.”

The People v. O.J. Simpson finale doesn’t contradict this assumption. We glimpse just a few moments of the jury’s deliberation, in which the stubborn black jurors confront the timid, logical whites, and refuse to budge from their belief that O.J. is innocent. The interaction is presented as an intimidation game: Whipped into a fury by Johnnie Cochran’s bombastic closing statement, the trial’s black jurors are now immune to logic. The way the show presents the deliberations, it seems as if they took not four hours, but four minutes.

Of the two vastly different stories presented at the O.J. Simpson trial, the one that made the most sense to the jury may have been a combination of the two: a story in which O.J. Simpson was likely factually guilty, but in which there was also persuasive evidence that the police had tampered with the evidence against him. The LAPD’s long history of systemic racism and perjured testimony supported this theory. Mark Fuhrman’s demonstrated racism—the taped rantings that were not just hateful but seethingly, viscerally violent—supported this theory. Fuhrman’s perjury at the Simpson trial itself supported this theory. Even the prosecution’s inability to see how rumors of Fuhrman’s racism might render his testimony suspect supported this theory.

The case’s largely black jury, Dershowitz argued in Reasonable Doubts, did not see the reality of Simpson case through a lens distorted by race, as so many dismayed commentators would later claim. Instead, they saw different facet of the case, one largely inaccessible to white citizens. The jurors were capable of believing that Simpson had probably committed murder, but that the possibility of police tampering rendered them unable to ethically arrive at a guilty verdict. Recognizing this approach means seeing the Simpson case not as an indictment of 12 jurors, but of a legal system that did not take enough pains to ensure that its officers treated all citizens equally, to eliminate systemic racism and police brutality, and to ignore the troubling history of a man who seemed like a good-enough witness so long as his testimony supported the prosecution’s theory of the case.

Perhaps the most surprising aspect of Reasonable Doubts is that Alan Dershowitz ultimately comes across not as a moral relativist hungry for money and fame—as he and the other members of Simpson’s defense team have since been painted—but as an idealist. To him, the jury’s inability to return a guilty verdict made the Simpson trial the kind of public affair that would spur the prosecution to be less tolerant of perjured testimony and unscrupulously obtained evidence. In an adversarial system, justice cannot prevail if every defendant does not have an attorney who will use every means possible to advocate for their innocence—but the system will also fail, Dershowitz argues, if the prosecution’s methods are not challenged at every turn by the defense.

“As a teacher of law,” he writes in the book’s conclusion, “I had the privilege of participating in a case that has helped to educate millions of people about both the virtues and the vices of the American criminal justice system.” Today, this claim seems not just false but naïve. For the most part, we have chosen to regard the O.J. Simpson trial as a comedy of errors whose result could only have been made possible through the jurors’ stupidity. Taking a more complex view of the case—entertaining multiple truths at once, as the jurors did—means that we can see the verdict not as something to cringe at, but something to learn from.

Revisiting the O.J. Simpson trial can mean recognizing one man’s guilt while also comprehending the guilt of the legal system. When Simpson’s jurors returned their “not guilty” verdict, they also delivered a tacit indictment of the system whose prejudices had rendered them incapable of convicting Simpson himself. For those who believe that the Simpson jurors’ actions were based not on logic but on blind emotion, it’s worth noting that, in the two decades since his acquittal, O.J. Simpson has not committed another murder. But the LAPD has been guilty of the same injustices that swayed the jury’s verdict—again and again and again.

Sarah Marshall’s writing on scandal, horror, and American law has appeared in The Believer, The New Republic, and elsewhere. She also co-hosts The Feelings Club, a podcast about the secret life of emotions.