Without a Doubt

Postscript

After the verdict I slipped into a malaise. I told myself that this was only post-trial letdown, the kind you always feel after a verdict comes in-even when it’s favorable. It takes a while to wean yourself off the adrenaline. But this was different.

For quite a while, five months at least, I couldn’t shake the sense of dislocation. And guilt. I felt such guilt. I felt like I’d let everyone down. The Goldmans. The Browns. My team. The country. The fog didn’t begin to lift until the spring of 1996, when I finally sat down to write.

Let me be perfectly frank with you. I am not a memoirist by nature. Left to my own inclinations, I might never have done this book. In a perfect world I would have slipped quietly out of the spotlight and tried to get some semblance of my old life back. But my old life was gone.

I could have continued being a D.A. But I knew what would happen. I wouldn’t be able to try cases for a long, long time. Either the defense would try to get me removed, for fear the jury would be biased in my favor-or my own office would be afraid to deploy me, because a jury might be biased against me. As I saw it, the Simpson trial had ruined me as a prosecutor.

That caused me more pain than I can tell you. For fourteen years so much of my image of myself had rested upon being a deputy D.A., an advocate of the People, that leaving the office felt like amputating a limb. But I knew there was no place for me there any longer and I had to move on.

Throughout the trial, I would wake up at three in the morning with night sweats, worrying over how I would support two small sons. What kind of work could I get that would allow me to raise and educate them, that would also allow me to spend time with them? I don’t mean “quality time.” I wanted to be-please don’t laugh-a soccer mom. In short, I wanted to do all those things that working mothers manage only with the greatest difficulty.

This book came to my rescue. When I received my contract-bearing a figure I could never have imagined in my wildest dreams-I breathed a sigh of relief, knowing that I could both support my family and do my writing at home.

But this book has done even more than give me financial peace of mind. It’s given me an opportunity to set the record straight.

Since the verdict, I feel that my actual accomplishments-and those of my team-have been obscured by revisionism, some of it simpleminded, much of it downright vicious. I have found myself accused of being too arrogant and too meek; of being too flirtatious and too butch; of cozying up to Mark Fuhrman and of distancing myself from Mark Fuhrman; of protecting the LAPD and not being loyal enough to the LAPD; of being too attentive to detail and too inattentive to detail; of being too passionate and too listless; of being too high-minded and too underhanded. There has been no coherent theme to this criticism, which serves to underscore one point: when a verdict assumes the proportions of a national crisis, someone has to take the fall.

I know that to the vast majority of Americans, that verdict came as a gut shot. I’ve seen photos of the faces of people watching television as it was read back. I’m talking about the look of dumb shock caught on the face of Americans in bars and beauty salons and living rooms all over the country. They knew he was guilty. We all did. How could something like this happen in a country where every sixty-minute weekly courtroom drama has conditioned us to expect-in the face of overwhelming evidence of guilt-a triumph of justice?

Was the prosecution perfect? Of course not. No prosecution is perfect. If prosecutions had to be mistake-free, no defendant with a semiconscious lawyer would ever go to jail. But this truth seems to have been lost on the pop chroniclers who, during the months since the criminal verdict, have rewritten history. To a man, they’ve taken the easy road, pinning the blame for the verdict on me and my colleagues rather than explaining to their readers some very complex and brutal realities. The People lost this case not because we introduced too much evidence or too little evidence. We lost because American justice is distorted by race. We lost because American justice is corrupted by celebrity. Any lawyer willing to exploit those weaknesses can convince a jury predisposed to acquittal of just about anything. In the case of People v. Orenthal James Simpson, a handful of clever, expensive attorneys were allowed to manipulate the system by invoking the wholly irrelevant, yet provocative issue of racism.

In recent months I’ve watched members of Simpson’s defense team try in their various ways to distance themselves from the race issue. Tune in to late-night TV talk, and you’ll never hear them brag about what a clever move it was steering that kid from The New Yorker to the Fuhrman story. They’ve all been remarkably silent about that-with the exception of Alan Dershowitz, who has made some of the most baldly ill-considered comments I have heard on national airwaves.

Last December, while appearing as a guest commentator on Rivera Live, Dershowitz proclaimed that the defense had never really played the “race card,” only the “perjury card.” In this revisionist reality, we’re asked to believe that it was really just Mark Fuhrman’s denial of using racial epithets the defense was concerned about. Which conveniently ignores the fact that the Dream Team was arguing for the right to introduce the term “nigger” at least two months before Fuhrman even took the witness stand. Dershowitz was hooted off the screen by fellow commentators.

Make no mistake about it, this so-called Dream Team played the race card. I’d just like to ask those guys a question: Did it ever occur to you, as you broke your buns getting your spoiled, rich, sadistic jerk of a client acquitted, that you might just be putting public safety at risk? Whole neighborhoods of Los Angeles-and other cities-could have gone down in flames, Johnnie, because of your irresponsible, inflammatory rhetoric. And no amount of revisionist fast talk is going to change the fact that you guys pandered to racial hatred in order to win. You took a jury itching to avenge Rodney King and incited it to nullify the law. The result was a miscarriage of justice, which, in turn, left many whites gunning for payback.

In November 1996, California voters went to the polls and did something unthinkable: they voted to do away with affirmative action programs in this state. Think about that. Twenty years of social reforms blown away like ashes in the wind. I’m not alone in believing that Proposition 209 would never have stood an ice cube’s chance in hell if white Californians had not been so infuriated by the Simpson verdict. There’s all kinds of ways to riot: in the streets or at the ballot box. That’s the problem with payback. It never stops.

As you might imagine, I followed O. J. Simpson’s civil trial with bittersweet fascination. I like the idea that O. J. Simpson has been found “liable,” as they say in civil law, for the deaths of Ron Goldman and Nicole Brown Simpson. Given the circumstances of those deaths, you can’t very well hold him “liable” unless you buy the proposition that he slashed them to death. Bottom line, murder.

A civil trial, I’m sure I don’t have to tell you, is a whole different ballgame. You’ve got a different standard of proof: “preponderance of evidence” instead of “reasonable doubt.” In a civil case, you can present the kinds of evidence we could only dream about. I’m thinking of Nicole’s diary and the results of O. J. Simpson’s failed polygraph.

But the plaintiffs had something even better going the second time around. Public opinion was running against O. J. Simpson. The ramifications of that fact resonated throughout the proceedings. For the duration of the criminal trial, the aura of wealth and public acclaim still clung to defendant Simpson so stubbornly that even as he sat a prisoner in the dock, prospective witnesses pulled their punches, afraid of offending him. If they were sycophants or hangers-on, they didn’t want to cut off the flow of his largesse. If they were honest-to-goodness admirers, they didn’t want to be “the one” to bring him down.

After the criminal verdict, when public opinion turned abruptly against him, these same witnesses stuck a finger in the air, caught the shift in the wind, and altered their testimony accordingly. I couldn’t believe it when I heard Kato Kaelin, who has apparently learned to speak in complete sentences, telling the world how distraught Simpson appeared on the night of the murders. And I regarded with absolute disgust the videotape of Paula Barbieri’s deposition. When questioned by our office during the Al Cowlings investigation, she wouldn’t even admit that she was Simpson’s girlfriend. Now she’s gabbing that she’d broken up with him the day of the murders.

Even more upsetting to me was the behavior of the expert witnesses. For the plaintiffs, Dr. Werner Spitz, the former chief medical examiner of Wayne County, Michigan, made himself available. We were never able to get him to do the same for us. And those scientific hotshots who’d renounced integrity to swap spit with the defense team? Dr. Henry Lee did not show his face in Santa Monica. Defense lawyers had to content themselves with introducing his videotaped deposition. And Dr. Michael Baden, who’d postulated during the criminal trial that the assailant had struggled with his victims for ten to fifteen minutes-an absurdly exaggerated estimate that gave credence to the defense time line-conceded during his testimony at the civil trial that the murders could have been committed in half that time.

Then, of course, there’s the fact that O. J. Simpson had to testify this time around. As I predicted, his ego tripped him up big-time.

But the biggest blessing by far to drop into the plaintiffs’ laps was a judge who took the reins tightly in that courtroom. Hiroshi Fujisaki kept cross-examination confined to the scope of the direct, as it should be. So the defense never got to play its case through the plaintiffs’ witnesses. Most important, Fujisaki firmly refused to let race or Mark Fuhrman become an issue in this trial. The wild speculation that formed the cornerstone of the defense in the criminal case was now finally deemed inadmissible. Thank God for a judge with backbone.

While I hope the civil judgment has brought some peace to the victims’ families, it leaves me with some lingering concerns. What kind of message does this verdict really send? That whenever you have a black defendant whom you simply must convict, you gotta be sure he’s tried by white people? I felt a little queasy at the public rejoicing when a black juror in Santa Monica was booted for having a purported drinking problem. The ideal worth striving for, it seems to me, is that justice can be done in any venue, with any defendant. And for that to happen, there’s going to have to be some serious rethinking of the jury system.

I am not a social theorist, but I do have a few informed suggestions. In order for the jury system to survive, we have to do something to ensure that every jury pool contains a true cross section of the community-not the most underemployed, least-invested segment of it. That means when a lawyer goes to pick a jury, she’s looking at a room full of doctors, engineers, full-time moms and dads, teachers, students, secretaries, college chancellors, postal workers, supermarket cashiers. You need that whole range. I wouldn’t want a jury of Ph.D.s any more than I’d want a jury of high school drop-outs.

The way it stands now, a lot of thoughtful employed citizens who have an interest in seeing that justice works can’t afford to leave their jobs for eight months at a stretch. Somehow, some way, employers, the government, somebody is going to have to foot the bill for careful, honest, intelligent jurors to perform unlimited duty. The business lobby will shriek bloody murder at this. But the next time you hear some CEO on a soapbox complaining about how the Simpson jurors couldn’t cut it, please remind him that you get the justice you pay for.

At the risk of sounding preachy, let me offer one earnest, and very personal, admonishment. The next time you receive a jury summons, respond and serve. A summons is not some party invitation to which you can RSVP. It is the notification of a legal and moral obligation. Don’t complain about the verdicts that juries bring in if you won’t answer the call. Enough said.

Other suggestions? Lawyers should be gagged, pure and simple. There’ll always be leaks, but a judge with resolve can dream up sufficiently painful sanctions to make an attorney think twice before taking the risk. Next, kick cameras out of the courtroom. I didn’t always feel this way. In fact, I started the Simpson trial believing that cameras could actually serve a useful purpose. Can you believe it-I thought they could teach the public what real trials are all about. The performance of the media in this case disabused me totally of that notion. The cameras in the Simpson courtroom not only encouraged lawyers to preen for the lens and prolong the life of every goddamned motion to increase their time on the air, it reduced a criminal trial to the status of a sporting event. Court TV has given rise to a bizarre burlesque of half-time commentary according to which one side or the other has “won” or “lost” on any given day. A criminal case is not won or lost by the motion or by the day. Its outcome is determined by weeks and months of cumulative testimony. Until someone yanks the cameras, the public will continue to be systematically miseducated about the process of justice.

Other small things spring to mind, such as stricter rules of evidence to keep defense attorneys from slipping so much swill into the record. But more regulations, new laws are not the answer. Laws are only as good as the people-the judges-who enforce them. There were ample laws on the books to keep Lance Ito from allowing the N-word into People v. Orenthal James Simpson. But he did it anyway. He caved to the bullying of the defense, and in committing that single egregious error, he assured a hung jury, if not acquittal.

I found the process of writing this book cathartic. It was painful at first having to get up every day to relive the stress, anxiety, and exhaustion of that marathon. But it was worth it. The more I wrote, the more my vision cleared. And as that happened, the sense of guilt lifted. In going back through the case day by grueling day, I rediscovered not only the pain but the exhilaration. Being forced to reexamine those months made me appreciate how hard we all fought, against impossible odds, to elicit justice from that jury.

In the future I will want to tell my sons about this case. And when I do, I will be able to hand them this book and say, “This is my story. Your mother was not perfect, but she had conviction. She fought with every ounce of strength for what she thought was right.”

It’s all we can ever do.

– February 28, 1997