A recent local news story about renown criminal defense attorney F. Lee Bailey answered a tactical question which has long nagged me about the O.J. Simpson murder trial while, at the same time, confirming my suspicions that televising a high-profile trial distorts the administration of justice.
Bailey, who has retired from law practice and moved to Maine, was a member of the “dream team” that defended O.J. during his 1995 trial in Los Angeles on charges he fatally stabbed Nicole Simpson, his divorced wife, and Ronald Goldman, an unfortunate bystander.
Simpson, a retired football superstar, sportscaster, pitchman and actor, was acquitted of criminal charges, but his reputation was left in tatters, and, two years later, he was walloped with a $33.5 million verdict in a wrongful-death civil suit brought by the victims’ families.
The news story which caught my eye reported on Bailey’s plan to write a book about the case and offered a tantalizing tidbit about the attorney’s role in creating the iconic image of O.J. trying on the “bloody glove.” This anecdote and other previously undisclosed details have been posted in a 46-page document on Bailey’s website.
The case against Simpson rested entirely upon circumstantial evidence, particularly analysis of blood stains (allegedly from the victims and Simpson) found at the crime scene, inside Simpson’s Bronco, and on a leather glove discovered near his home matching a glove left at the scene.
Bailey says he realized the bloody glove was too small to comfortably fit Simpson’s huge hand and wanted his client to try it on in front of the jury to show it wasn’t his. However, because this evidence would be far more persuasive if offered by the prosecution, Bailey says he goaded deputy district attorney Chris Darden into introducing it by telling him, “You don’t have the balls to make O.J. try on that glove. If you don’t, I think I will… .”
The image of Simpson wearing the too-small glove allowed lead defense attorney, Johnnie Cochran to tell the jury in closing, “If it does not fit, you must acquit!” And so they did.
I was mystified by Darden’s courtroom “experiment.” In my law-school trial practice class, we were repeatedly instructed never to ask a question at trial unless we either knew the answer in advance or it didn’t matter what answer we got. The same held true for conducting courtroom experiments. It was an admonition which has served me well in over 30 years of trying cases.
Why, I wondered, would Darden ask Simpson to try on a glove — a critical piece of evidence — if he didn’t know whether it would fit?
Now I understand! Darden was probably smitten by the public attention lavished on this trial and let his ego supplant his judgment, succumbing to Bailey’s schoolyard taunt. He was in the spotlight and looking to create a moment of high drama in a 134-day criminal trial which was being broadcast to millions of viewers.
Darden wasn’t the only one seeking glory. Lead prosecutor, Marcia Clark, who was then going through a divorce, sought more alimony so she could afford an appropriate wardrobe for this t.v. extravaganza, and the “dream team” attorneys outdid themselves in showboating for the camera and leaking to the media their intramural disagreements about how Simpson’s defense should be handled.
Even the normally taciturn presiding Judge Lance Ito appeared to be star struck, and I half wondered if he would order the jury verdict to be read aloud by a Hollywood publicist.
We’ll never know whether Darden’s mistake cost the prosecution a guilty verdict. There were certainly other gaps in the people’s case which could have amounted to reasonable doubt. Many of them related to sloppy police practices in collecting, preserving, keeping track of, and testing forensic evidence (the kind of procedures every “CSI” fan knows about). In addition, a critical police witness, Mark Fuhrman, was discredited when he was caught lying about his previous use of racial epithets.
Regardless of the impact of Darden’s tactical error on the trial’s outcome, the point is that he probably wouldn’t have made such a mistake in a low-profile, nontelevised case. (Low profile cases are almost never televised).
A trial should be a serious, thoughtful, deliberative process, one shielded both from outside public pressures and from courtroom grandstanding. It may have dramatic moments, but it shouldn’t be allowed to become theater.
When prosecutors and defense attorneys are thinking about fame, and judges and juries are worrying about pubic acclaim or obloquy, they’re not focused on doing their jobs, and, as a result, justice suffers.
The Simpson trial isn’t the only celebrity case to have caused a media sensation.
The 1907-1908 murder trials of millionaire Harry Thaw, who shot architect Stanford White to death for having an affair with his wife, and the 1935 trial of Bruno Hauptmann, for the kidnap-murder of aviator Charles Lindbergh’s 20-month-old son, are but a few examples of the genre.
The difference is that these trials occurred in the days before television and well before TV cameras in the courtroom, a phenomenon which is barely a few decades old and which has only been permitted in Maine’s state courts since 1994.
Simpson’s superstar popularity, the racial overtones of the case, and the emergence of cable stations willing to devote large blocks of programming time to trial coverage converged to make the O.J. trial a blockbuster of a show and a forerunner of sorts to today’s “reality” television.
Whether justice was really done in that L.A. courtroom, however, is a subject that will be debated by Bailey and others for many years to come.
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