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Justice as focus groups, big royalties and Geraldo


"There's an old saying in the law, you know, that the consciousness of innocence makes any man calm. Think and look innocent."

In Theodore Dreiser's An American Tragedy, young Clyde Griffiths, the quintessential American on the make, has killed his pregnant working-class girlfriend, who stood in the way of his marrying a beautiful, wealthy socialite. His politically ambitious lawyers train him in courtroom demeanor: They drill him for months so he can lie with sincerity and the jury will love him for it.

Gerry Spence, omnipresent buckskinned defense attorney commentator on the O.J. Simpson case on "Larry King Live," and Geraldo Rivera, disagrees. For him, an innocent man looks guilty because he's scared -- unless he can lie really well.

Dreiser is eerie reading in the Age of O.J. Simpson -- not so much because Clyde and O.J. have that much in common, although Clyde, too, is a smooth talker, but because An American Tragedy is an attack on the American justice system: The law, on both sides, operates not to shine the light on the truth but to distort reality, to pump up prosecutors' and defense attorneys' careers.

And sure enough, since the trial the "dream team" have grown richer on their book royalties and TV contracts. And we can read how O.J.'s lawyers redecorated his mansion with pictures of black people so he could "look innocent" to the black jurors when they came through on their inspection tour.

As in the cases of Pearl Harbor and President Kennedy's assassination, we all remember where we were and what we were doing when the O.J. Simpson "not guilty" verdict came in. In various studies, 91 percent of the viewing public, or 142 million Americans on TV and radio, were tuned to the verdict.

This was not -- according to L.A. prosecutor and crime writer Vincent Bugliosi in Outrage: The Five Reasons Why O.J. Simpson Got Away with Murder -- because the Simpson case had been a great murder mystery. Simpson's guilt was obvious from the start. Nor was it because the case had any unusual or "sensational" features -- like sex or a love triangle or a brilliant defense or prosecution. Rather, it was a standard, as the journalism cliche goes, "brutal murder."

With one difference: celebrity. O.J. was the kind of person other "famous" people liked to be around. Though barely literate, he was a polished charmer. A Jesuit colleague who met O.J. occasionally on the campus of the University of Southern California told me O.J. quickly learned his name and greeted him repeatedly as if they were bosom pals. In fact, says Bugliosi, the real Los Angeles police "conspiracy" had been their tendency to protect him from the consequences of his wife-beating. Ironically, the televised trial caught him just as his celebrity glow was fading. Marcia Clark had never heard of him before his arrest.

I was in a funeral procession for a friend's sister in Philadelphia. The foreman of the jury was handing over the envelope as our car approached the grave site. I felt terribly ashamed that I feared missing the verdict by attending the burial prayers.

That night, back in New Orleans, my cab driver, a black man, was delighted with the result. O.J. was not guilty, he said; but then, apparently unaware that he was contradicting his first judgment, he blurted out his other theory: that O.J. had help. The driver said there was no way one man could slice up two people that quickly. At Loyola University, the black law students in the TV lounge had cheered the verdict as if it were a personal victory.

Like the aftermath of the Los Angeles riots and Rodney King beating, the verdict and the reaction presented America with one of the oddest and most discouraging episodes in recent social history. With public access to the same evidence -- TV, newspapers and magazines (though most Americans get whatever they know about current events from TV) -- whites overwhelmingly believed Simpson guilty, and blacks, by 80 percent, believed him innocent. As editorials and columnists said at the time, when two alienated parts of the population view the same reality so differently, chances of communication and mutual understanding are slim, and the nation faces a serious social crisis.

The Arts and Entertainment network's documentary, "American Justice: How O.J. Won," faults the uneducated jury's inability to understand the DNA evidence. Bugliosi puts most of the blame for the bad verdict on the incompetence of the prosecution, but he also scores points against the media. By turning O.J., an illiterate, narcissistic con man, into a celebrity, whom millions of people really knew nothing about but imagined to be their friend, the media created an emotion-based false image that mere facts and logic could not dislodge.

By hyping O.J.'s defense team, celebrity lawyers with hardly any murder trial experience, as the "dream team," the media created expectations that the jury imagined were being fulfilled before their eyes. By featuring an endless series of talking heads, including obscure law professors with no murder case experience, TV produced a ton of bad analysis -- "The prosecution was on the ropes today when blah, blah, blah..." -- which probably leaked back to the jury.

But Jeffrey Rosen, in a recent analysis of eight books dealing with race and O.J. Simpson in The New Republic (Dec. 9), sounds the loudest alarm bell. The verdict was the result of Johnnie Cochran's manipulation of "critical race theory," according to which juries may disregard facts, reason and the law in favor of stories -- including paranoid conspiracy theories -- that empower the black community.

"For these scholars, black lawbreaking is a form of black self-help, a legitimate way of adjusting the scales of centuries of racial oppression," Rosen wrote. With this strategy and armed with focus group and polling information that black women despised Nicole for living out their fantasies, Cochran aimed his argument at the jury's black women and, in his summation, challenged them to become the saviors of the black community by "sending a message" that would punish the police for their brutality.

How do we get out of this terrible predicament?

Partly by retracing our steps to see how we got in. Certainly not by playing another version of the "race card," adopting the critical race theory tactics of putting story over fact or law. What could be more racist than presuming that black jurors cannot absorb logic? Bugliosi suggests that the prosecution could have won by granting the partial truth of Cochran's argument (that L. A. police have a past history of brutality) and then disproving its implication (that they fabricated the case), because the black community knows from its experience that the police do not fabricate cases.

In September 1995, a few weeks before the Simpson verdict, Legal Notes, a monthly publication of the Radio and Television News Directors Association, raised and vigorously answered the objections to cameras in the courtroom, and Stephen Brill, founder of Court TV, appeared at the RTNDA convention in New Orleans with a panel of experts to present his scholarly brief that whatever questions the Simpson trial has raised about the integrity of our judicial system, the courtroom camera, far from being the source of the problem, may be part of the solution.

Of course we must distinguish between the camera as a piece of technology and the camera as the public's eye on the proceedings, in the court and the media's coverage of the trial.

The camera by itself does not sensationalize, does not force the lawyers to strut and pose, nor seduce the judge into seeing himself as the star of a continuing soap opera or national saga. But am I wrong in sensing a great sigh of relief that the current civil trial of O.J. is not on TV? Televising the first trial prolonged it and thus exaggerated -- and perhaps distorted -- its societal impact. Now, with the plaintiffs' more compact yet thorough presentation, we have a better chance of focusing on the truth.

Truth. The defense strategy has been to demonize the victim. Jeffrey Toobin summarizes their opening statement in the New Yorker: "Nicole was a tramp. He was a star, she was a groupie. He played it safe, she took chances. In short, the bitch asked for it." The plaintiff, meanwhile, has "Fuhrmanized" Simpson, by contrasting his testimony with witnesses, including his friends, who contradict him. The message: A man who will lie when he says he never hit his wife will probably be lying when he says he didn't kill her.

For CNBC-TV talk show host Geraldo Rivera, who, followed by his colleague Charles Grodin, has devoted virtually every day and night of the past year to talking about this one issue, the Simpson case is the Dreyfus case in reverse. Just as 19th century France's unjust conviction of the Jewish army officer was a national scandal from which France has never recovered, America's failure to convict a celebrity wife-killer is our national sin.

How can we redeem ourselves? Rivera says by talking about it. By using the media as our national campfire -- by talking about it until we understand what we have done.

True, the campfire discussion has had its low points. New York Daily News columnist E.R. Shipp, a black woman, has called the journalists covering the civil trial a "lynch mob." A Washington black church known as the Scripture Temple, which gave O.J. an ovation, called Rivera, a former civil rights lawyer, a racist. On Grodin's show, Curtis Sliwa, founder of a vigilante group called the Guardian Angels, urged O.J. to kill himself, and Grodin agreed.

Grodin has also suggested that his fellow Jews Alan Dershowitz and Robert Shapiro be given "cold shoulders in the synagogue" for having defended a guilty man.

I share Bugliosi's and Rivera's outrage that in 1996 an American man can kill two people and get away with it because he is rich and famous, his lawyers manipulated racial resentments, and the prosecution didn't think hard enough.

No civilized person wants O.J. dead. But I want him found guilty. And I want him to lose all his money.

See who loves him then.

Jesuit Fr. Raymond A. Schroth is assistant dean of Fordham College.

National Catholic Reporter, December 20, 1996