The Simpson Verdict and the Crisis of American Criminal Law

By Richard E. Rubenstein

The criminal trial has long been America's favorite form of popular drama. In each era, key trials have spotlighted the leading conflicts of the day: labor struggles in the Eugene Debs and Tom Mooney cases, religious conflicts in the Leo Franks case and the Scopes' "Monkey Trial," political conflicts in the Sacco-Vanzetti and Chicago Conspiracy cases, and southern racial strife in the trials of the Scottsboro Boys and Bryan De La Beckwith. The trial of O.J. Simpson for the murder of Nicole Brown Simpson and Ronald Goldman now joins this select list of national morality plays.

In some ways, the Simpson trial most resembles the 1924 prosecution of Nathan Leopold and Richard Loeb for the "thrill murder" of little Bobby Franks. Brilliantly defended by Clarence Darrow, the Leopold-Loeb case titillated and fascinated the public while triggering a national debate over multiple issues of moral philosophy and public policy. In other respects, the case resembles those political trials--Sacco-Vanzetti, the Rosenbergs, and Alger Hiss come to mind--whose results intensified the conflicts they dramatized. The ex-football star's acquittal enraged those who perceived the verdict as an example of sexism (indifference toward male abuse of women) or a product of "rich man's justice." But the principal effect of the verdict was to exacerbate conflict between blacks and whites.

In national polls taken immediately following the trial, a substantial majority of white Americans expressed disapproval of the Simpson verdict while an even larger majority of blacks applauded it. Yet the salience of race to the Simpson case is not easy to explain. Many of those who celebrated O.J.'s acquittal believed that, whether he was guilty or innocent in fact, egregious police misconduct had hopelessly tainted the legal case against him. And many of those who called for a conviction were not down on O.J. because of his race or that of the victims, but because they found the evidence of his guilt compelling. Each side in this debate could therefore claim objectivity for itself while accusing the other side of racial bias.

Writing in the New Yorker, for example, legal commentator James Offutt contends that Simpson's lawyers shamelessly played "the race card" to counter the "overwhelming" evidence of his guilt and that the mostly black jury responded by rendering an emotional, racially biased verdict. Offutt concedes that the work of the Los Angeles police on the case was tarnished by racism and poor investigative procedures, but insists, nonetheless, that it is virtually impossible for O.J. to have been "framed." Only if a juror's judgment were warped by racial prejudice could he or she possibly come to that conclusion.

Yet the Simpson jury was not instructed to determine whether O.J. had been "framed," or whether he might have murdered the victims, but whether the evidence established beyond a reasonable doubt that he did murder them. And that issue, as is so often the case, hinged on the credibility of police testimony. That is where the "black" perception of the case differs most strongly from the "white" view presented by James Offutt. The forensic evidence presented by the prosecution in the Simpson case seems overwhelming, indeed, until it is undermined by anomalies. What about the bloody glove discovered by a self-confessed racist and perjurer? The vial of blood with part of its contents missing? The Ford Bronco unprotected for days against tampering? The preservatives found in the blood samples collected by a police trainee? The socks so oddly stained?

Given the evidence that some police procedures were sloppy and that one key witness, at least, was malicious, the Simpson jury did not have to be racially biased to harbor a reasonable doubt of O.J.'s guilt. What the jury "nullified," maintains Nation columnist Alexander Cockburn, was not the law against murder but the "propensity to believe everything the police swear to in court." But Cockburn understates the issue. Once one comes to believe that some evidence in the case was planted or manufactured and that some witnesses very likely perjured themselves, the question is how much of the remaining evidence, if any, can be credited.

James Offutt seems to think that jurors can subtract tainted evidence from the total and still come up with a verdict of guilty--but the difficulty of doing that sort of arithmetic is obvious. "Without me," Mark Fuhrman boasted, "there is no case." Strictly speaking, that may not have been true. But, if Fuhrman lied and if there is a good chance that he planted evidence, why should the jury give other prosecution witnesses the benefit of the doubt? Now the salience of race becomes clearer. The people most likely to "read" the Simpson case as a story of police misconduct are those who have been exposed directly to that sort of behavior themselves or who have close friends or relatives who have experienced it.

Because the "war on crime" is fought mostly in black communities, African Americans are far more likely than whites to have firsthand knowledge of police practices that many experts consider common: planting drugs and other evidence, stealing the proceeds of illegal transactions, shaking down potential defendants, terrorizing "uncooperative" witnesses, conducting personal vendettas, provoking gang fights, offering perjured testimony, and more. Whites, on the other hand, are inclined to focus on the evidence of the defendant's misconduct (the "objective facts") without giving credence to evidence that impugns the honesty or impartiality of its police sources. They view public authorities as relatively impartial "third parties" rather than contestants themselves and thus, on the whole, as people lacking a motive to manufacture evidence and to lie. Defendants like O.J. Simpson, on the other hand, they assume to be passionately subjective and self-interested: "private" parties all the way down. Neither that perspective nor that of most black people is based on simple race prejudice. Each is race based because of the persistent and increasing disparity in black and white experiences since the Kerner Commission declared almost 30 years ago that black and white America are "two societies, separate and unequal." Living as each group does, it is not surprising that African Americans tend to distrust the police and that whites tend to trust them.

What I am describing as the "white" perspective has long been that of most juries, white and black. Criminal lawyers know how difficult it can be to shake police testimony. Police officers and investigators are articulate, professional witnesses; they appear honest and businesslike; they keep notes and records that have an air of authenticity; they verify each other's stories; and they have facilities and funds for investigation and presentation of physical evidence that most defendants can only dream of. It is the apparent reliability of their testimony that generates the very high conviction rates that prevail in most American jurisdictions, despite the reasonable doubt standard used in criminal cases.

I have argued that the verdict in the O.J. Simpson case was not necessarily or even probably the result of simple racial bias on the part of the jury. Was the prosecution's case, then, motivated by race prejudice? That also seems unlikely. Of course, there are racists among the Los Angeles police (and on other police forces) and one of them--Mark Fuhrman--played a leading role in the Simpson prosecution. But police officers who are not racists manufacture evidence and give false testimony, too. Perhaps the most important reason for that is vigilantism. Many cops consider themselves the last line of defense in the war against crime, soldiers entitled--even obligated--to stop criminals "by all means necessary." Should they believe strongly that a defendant is guilty but fear that the admissible evidence will not be sufficient to convict, even nonracist officers can plant drugs, "drop" a gun, or dip someone's clothing in blood.

Or worse. In December 1971, after Black Panther leaders Fred Hampton and Mark Clark were shot dead in their beds by Cook County Sheriff's police, I told a friend in the Chicago Police Department that I believed the killing was a police assassination. "Of course," he replied, "but there was a reason for it. The police knew that the Panthers had gunned down a cop two weeks earlier, but there were reasons why they could never prove it in court. So they executed 'justice.'"

Police vigilantism has not slackened since the 1970s; on the contrary, as the "war on crime" escalates, vigilante practices become ever more common. Few people seem to recognize the extent to which those practices have already undermined the integrity of our legal system. Western jurisprudence presupposes a civil society, not a state of war between large numbers of lawbreakers and a militarized state. In war, almost anything goes--the vital question is which side you are on--but legality presupposes a mutual agreement to play by the rules. Thus, the criminal law's procedural protections for the accused; its reliance on juries, rules of evidence, presumption of innocence, and standards of proof are balanced, in practice, by the weight ordinarily accorded to police testimony. Loss of credibility by the police presents juries with a Hobson's choice: either adhere to traditional legal standards and acquit someone who may well have committed a crime or condone police vigilantism and convict someone who may well be innocent.

Already, some soi-disant conservatives are calling for "reform" of the criminal justice system to counterbalance the loss of police credibility with new rules favoring the prosecution. Down with jury verdicts! Down with the reasonable doubt standard! Down with the rules banning admission of illegally seized evidence! What these commentators fail to understand, however, is that no new rules can contain the undeclared civil war now raging in America's troubled streets. A genuine war on crime, like most other wars, tears up legality by the roots. It places the police themselves in an impossible position--one in which they are invited to protect society against lawbreakers by breaking society's laws. Focusing on Mark Fuhrman's racism, therefore, has the peculiar side effect of obscuring his vigilantism. Heaven knows, we are all against racism! But are we also prepared to oppose Batman? Critics who fulminate against the prevalence of violence in our movies, music, and television programs should take a careful look at the latest media hero: the uniformed vigilante who breaks the rules at will to deal out "justice" to the bad guys.

At bottom, it seems to me, the dispute over the Simpson verdict reveals a growing conflict, not inherently racial but racially linked, between the partisans of order and the advocates of law. If nothing can be done to eliminate the causes of crime, the struggle is certain to escalate, as it has in many Latin American countries. On one side, police vigilantes, supported by a populace fed up with crime, increasingly take the law into their own hands--an activity that moves logically toward the formation of militias and "death squads." On the other side, lawbreakers, poor communities vulnerable to abuses of police power, and constitutionalists bemoan the collapse of civil society or form countervigilante organizations.

A no-win contest! Yet, at this writing, not one credible public figure in office or out has offered an analysis of the causes of crime in America or a program to eliminate them that makes sense. On the contrary, anyone who demands that the sources of lawlessness be identified and addressed is said to be "soft on crime"--a charge that is to the 1990s what being "soft on Communism" was to the cold war period.

It is time for those interested in conflict resolution to intervene in this discussion. To declare war on crime while refusing to confront its social and psychological causes legitimizes vigilantism, undermines legality, and further divides our people along lines of race, class, and gender. Moreover, it does not eliminate crime. The O.J. Simpson case may serve a useful purpose if it awakens us to the dangers of this approach and the need to construct a more humane and effective alternative. Could we help bring blacks and whites into dialogue about these issues? Surely, it is worth trying.