Tarlton Law Library
Jamail Center for Legal Research

     My five-year-old granddaughter Alexandra, a resident of Brentwood, California, has a personal reason to be indignant about the Simpson murder trial. One of Alexandra's favorite restaurants is the Mezzaluna, where Nicole Brown Simpson hosted her family shortly before she and Mezzaluna waiter Ron Goldman were murdered in front of her nearby condominium on Bundy Road. These days it is impossible for Alexandra to think of dining at the Mezzaluna, where long lines of curiosity-seekers form at an early hour, particularly on Saturdays when Los Angelenos play out a now-popular dating game reconstructing Nicole Brown's last evening: one begins with dinner at the Mezzaluna and proceeds to a neighborhood ice cream parlor for dessert.
     Despite her exclusion from the Mezzaluna, granddaughter Alexandra has recently revealed a forgiving disposition. While riding in the family car Alexandra's parents, both Hollywood writer-producers, were listening to the cross-questioning of O.J. Simpson's eternal houseguest Brian (Kato) Kaelin. Without preface Alexandra enthusiastically broke into their thoughts; "I like O.J.," she said. My son Andy responded in didactic terms, "It's wrong for you to say that. You've never met O.J. You have no idea what kind of man he is." Alexandra, who has mastered her parents' entertainment vocabulary, stood her ground. "Oh," she countered, "I don't mean I like O.J. the person, I mean O.J. the Show."
     Most Americans, like Alexandra, have fallen in love with O.J. the Show. Journalists have proclaimed the case to be the Crime of the Century, a designation that, given my country's penchant for superlatives, by no means assures immortal fame. In 1889, for example, Henry M. Hunt blazoned the title "Crime of the Century" on his book recounting the assassination of Chicagoan Dr. Patrick Henry Cronin by rival Irish nationalists. I might venture the guess that for most of the English-speaking world (excluding such learned groups as Our Society) Patrick Cronin is not a household word.
     Still, it is said with a substantial claim to accuracy that Orenthal James Simpson is the most famous American who has ever stood trial for murder. If the field of vision is extended to manslaughter, I suppose that Simpson's fame is rivaled by that of Roscoe "Fatty" Arbuckle, the silent-film comedian who faced charges stemming from the death of Virginia Rappe at a wild San Francisco party in 1921; Arbuckle was tried three times and was ultimately acquitted with an apology from the 

jury. If the celebrity of Simpson is to be measured in the wider field of homicides regardless of their degree, I sometimes risk a volley of brickbats from passionate Democrats by referring to the Chappaquiddick inquest.
     The trouble with real-life celebrity murder mysteries in America is that they very rarely end with anyone's conviction. The high-society historian Cleveland Amory, in his book, Who Killed Society? (1960), examines seven major Society murders since 1920, and notes that all (including the killing of Sir Harry Oakes) are officially regarded as unsolved. One Society murderer, Pittsburgh millionaire Harry K. Thaw, who was tried earlier in the century for the shooting of architect Stanford White, was found not guilty by reason of insanity. After escaping from an asylum where he had been detained for three years, Thaw was pronounced sane by two American courts, whereupon he gratefully resumed the sadistic practices to which he was much given.
     In the years since Cleveland Amory's book appeared, the dismal record of American justice in celebrity murder cases has hardly improved. Harvard law professor Alan Dershowitz obtained a reversal of Claus von Bulow's conviction for attempting the insulin murder of his wife; and the self-laudatory movie subsequently authorized by Professor Dershowitz, Reversal of Fortune, suggested that von Bulow had committed the murder after all but by means not charged in the case.
     Perhaps the most outstanding exception to this discouraging pattern is the conviction of Jean Harris for the murder of diet doctor Herman Tarnower; many of the jurors returned their verdict with tears in their eyes.¹
     O.J. Simpson's celebrity imposes a heavy burden that the prosecution will not find it easy to discharge. Simpson, as a college and professional football running back, was one of America's greatest athletes. He established a new record for total yards gained in a single season (2000+) even though he was not playing for one of football's premier teams. Still, O.J.'s gifts and records as a football player do not fully account for the warmth with which the American public regarded him at the time news of the Brentwood murders broke. I had seen very few of Simpson's games for the Buffalo Bills, but I remember him as a smiling, mild-mannered and well-tailored, if not particularly scintillating, sports commentator on television and as a late passenger hurdling through airports in Hertz Rental Car commercials. I have never seen 

¹ England has not entirely escaped the curse of bungled celebrity murder cases. Nobody has ever given me a definitive account of what really happened to the Princes in the Tower, or has enlightened me on the most pressing question of all: who pushed Amy Robsart?

him in the movies, but friends tell me that his acting skills are at best unremarkable. Nevertheless, the heroic or humorous roles in which he was cast contributed to his public image as a man whom it would be difficult to associate with an act of violence. In this respect he is strongly to be distinguished from surly and whining Mike Tyson, the former heavyweight boxing champion, who was convicted of rape under debatable circumstances.
     Another substantial roadblock that Simpson's prosecutors face is the likely reluctance of African-American jurors in the Los Angeles area to believe in the fairness of a police investigation directed against a member of their race. I assume that, on CNN or elsewhere, you were exposed to repeated screenings of the film-clip showing the beating of black motorist Rodney King by four white officers. The ensuing acquittals of the policemen by a mostly white jury in suburban Simi Valley, heavily peopled by retired police officers, triggered three days of rioting, resulting in more than fifty deaths. Shortly before the King verdict, there had been another highly-publicized instance of judicial leniency to a killer of a black Los Angeles resident. Five years' probation was the total punishment meted out to a Korean grocer convicted by a jury of having shot a black teenager as she was walking away after an argument over a bottle of orange juice. It is small wonder that a 1992 poll showed that 81% of African-Americans believe that our judicial system is racially biased.
     In addition to enflaming media frenzy and public obsession, the celebrity and racial dimensions of the Simpson case have had a profound impact on what is going on in the courtroom. The net result has been that each side appears to be "overtrying" its case. The prosecution is well aware of the formidable task it faces in attempting to demonstrate that a beloved sports hero and pleasant media personality was capable of butchery, and to achieve that transformation in the minds of a predominantly black Los Angeles jury with strong memories of racially motivated police excesses. Lead prosecutor Marcia Clark has responded to the challenge by developing her case laboriously, beginning with the background of episodes of domestic violence often in the relatively remote past, adducing cumulative testimony of neighbors and others tending to fix the time of the murders, anticipating defense claims of police incompetence, and only now, as I prepare these remarks, addressing the principal forensic science proofs.
     In espousing its indicated theory regarding motive, the cautious prosecution may be undertaking to prove more than is reasonably required. Assistant prosecutor Chris Darden, in his moving portion of the People's opening statement, characterized the murder of Nicole 

Brown as the final and irrevocable act in a pattern of spousal "control" by an abusive and obsessed ex-husband.
     Now I don't suppose any of you could be card-carrying members of Our Society without knowing that proof of motive, while obviously helpful to a prosecution's case, is not a legal element of the crime of murder, much less an element required to be established beyond a reasonable doubt. The prosecution, by casting the murders as the predictable endgame of wife abuse, has opened the way to rebuttal by expert witnesses for the defense. I am told that a well-known authority on battered wives has been engaged by the defense to testify that abusive husbands do not usually turn homicidal.
     In the naive era when I began reading criminal trials, the prosecution, without inviting a clash of expert testimony, would surely have been content to argue that past acts of violence showed the defendant's periodic hostility to his wife. In much the same way, one can introduce evidence that a man in the dock stands to inherit from a murdered uncle, without demonstrating that most nephews will kill to gain their legacies.
     O.J. Simpson's defense lawyers, the so-called "Dream Team," also have been given to courtroom excesses. Beginning with the preliminary hearing (where cross-examination is usually absent or perfunctory) the defenders have shown an inclination to brand every prosecution witness, however inconsequential the subject of testimony, either the possessor of a convenient memory or an outright liar. Their principal targets, of course, have been detectives and criminalists of the Los Angeles Police Department whom the defense team have set out to portray as harboring the same racial animus as the four white officers who beat Rodney King. In pursuit of this goal chief defense counsel Johnnie Cochran (a specialist in civil-rights cases against the police) and his associates seek to picture the Los Angeles investigators as conspirators in a vast plot to frame O.J. Simpson, a man who was as much a hero to the sports-mad police as to the general American public.
     How will this line of defense likely sell to the jury? Americans have become increasingly enamored of conspiracy theories in the years since the assassination of President Kennedy (or if I were to take a long historical view, I could say with greater accuracy, since the assassination of President Lincoln). The plot proposed by the Simpson defense, though, is riddled with improbabilities. For example, even assuming that Detective Mark Fuhrman had an opportunity and the racist motivation to plant a bloody glove at Simpson's residence in the earlier hours of the investigation, how would he have dared to do so when he did not yet know whether Simpson had an ironclad alibi that would immediately expose the glove as a clumsy fabrication of evidence? In the face 

of this incongruity, does it really matter whether, as F. Lee Bailey asked him stagily, Detective Fuhrman has ever used a racial epithet in the last ten years? Another problem is posed for the defense by the large number of persons who would have had to cooperate in order to carry out the alleged police conspiracy and cover-up. In late April there were reports that the defense lawyers would meet this difficulty with the contention that the L.A. Police Department, like the Mafia, is governed by a Code of Silence. Even this riposte would not address the final dilemma that the defense theory leaves for the jury: if the Los Angeles police are really as incompetent as cross-examiners have relentlessly portrayed them, how could they have been clever enough to have sprinkled incriminating bloodstains in crucial locations at O.J. Simpson's residence?
     Another complicating factor with which both parties must grapple is the circus atmosphere surrounding the trial. In approaching this issue, I begin by noting the obvious fact that England and America have followed divergent paths of jurisprudence with respect to trial publicity. It is not that we are governed by different instincts. We are united not only by a common language but, as Gary Solis, American legal commentator for Sky Broadcasting has pointed out, a common prurient interest in "sex, celebrity, fame and violence." England, however, has strongly preferred the rights of the accused to a fair trial when those rights are brought into conflict with the interest of the media and the public in free speech and press. I am not competent to trace all the steps that have led to your country's enactment of the Contempt of Court Act of 1981, but I gave several years of my scholarly life to an important milestone along the way, the Thurtell-Hunt case of 1823-24, which Professor Richard Altick has referred to as the first example of "Murder for the Millions." Before the Thurtell trial a melodrama based on the case was produced at the Surrey Theatre by its manager, Llewellyn "Boiled Beef" Williams, who staged the murder complete with the original horse and gig allegedly used by Thurtell in his murder ride. The King's Bench enjoined further performances until the trial was over and later, to loud outcries by the press, Mr. Justice Park postponed the trial so as to abate the effect of massive coverage in the newspaper and other print media.
     The United States has deemed itself constitutionally compelled to take a course more favorable to press freedom because of the First Amendment included in our Bill of Rights. The modern First Amendment case law dates from Schenk v. United States, 249 U.S. 47 (1919), in which the Supreme Court upheld a conviction for a conspiracy to obstruct compliance with the military draft during World War I. In his opinion for the Court, Justice Oliver Wendell Holmes, Jr. ruled that the First Amendment did not bar Congress from criminalizing speech that posed a "clear and present danger" of bringing about the substantive 

evils that Congress had the power to prevent. In illustrating his thesis that the First Amendment does not grant an unlimited license to dangerous speech, Justice Holmes issued his oft-quoted dictum that nobody has the right to falsely cry "fire" in a theater and to cause a panic.
     The choice we have made to favor free speech even in the context of pending criminal trials has sometimes been tempered by judicial response to media excesses. A landmark decision of the United States Supreme Court, Sheppard v. Maxwell, 384 U.S. 333 (1966), overturned the murder conviction of Dr. Sam Sheppard, one of my fellow Clevelanders who, according to the Supreme Court "stood trial for his life . . . in [an] atmosphere of a 'Roman holiday' for the news media." The Court chastised the trial judge for permitting a "carnival atmosphere" to pervade the proceedings and urged courts to use their authority to restrict trial participants and the media from publications or statements affecting the outcome of the trial. An earlier call for limitations on pretrial publicity had been made in the 1964 Warren Commission Report on the Assassination of President Kennedy. The Warren Report observed that, had Lee Harvey Oswald not been killed, the uncontrolled publicity would have made it "extremely difficult to impanel an unprejudicial jury and afford [him] a fair trial." The Commission recommended that "representatives of the bar, law enforcement associations, and the news media work together to establish ethical standards concerning the collection and presentation of information to the public so that there will be no interference with pending criminal investigations, court proceedings, or the rights of individuals to a fair trial." The American Bar Association and state bar associations have responded by adopting ethics rules to prohibit certain out-of-court statements by lawyers regarding pending proceedings. Recently, the United States Supreme Court has held that lawyer speech may be restricted under a somewhat less demanding test than proof that the lawyer's comments present a "clear and present danger" to the outcome of the trial. [Gentile v. State Bar of Nevada, 111 S. Ct. 2720 (1991)]. On the other hand, the more traditional "clear and present danger" test remains applicable to proceedings seeking to inhibit media publications.
     Despite actions by many bar associations to restrict out-of-court statements by lawyers, neither California ethics rules nor Judge Ito have prevented the defense from holding press conferences on the court-house steps. Nor has the court been inclined to limit the appearances of the witnesses or potential witnesses on television talk shows. This powerlessness has contributed to the meandering progress of the trial, for some witnesses have been impeached not only on the basis of contrary testimony at the preliminary hearing but also in light of what they may have said on television.

     A major cause for concern is the ultimate effect of this antic media revel on the jury deliberations. Perhaps Judge Ito thinks he has cured this problem by sequestering the jury, but I an not so sure. One recently dismissed juror has complained about unmonitored telephone calls, and then there is also the delicate question of the conjugal visits the court has allowed. Judge Ito may hold the strong personal belief that briefly reunited spouses or lovers have other things on their mind, but it is possible that he underrates the charms of a really good chat about murder. I have long regarded there to be an open question as to which has a stronger appeal: criminal conversation or conversation about crime.
     As you can see by watching or reading coverage of the Simpson trial, the modest developments that American law has sanctioned in the direction of providing fair-trial assurances do not seem to inhibit anyone very much, whether trial participants, journalists, or curiosity-seekers. One of the key elements in the weighty media presence was the decision of Judge Ito to permit television in the courtroom, a feature that distinguishes the Simpson trial from any previous "American Crime of the Century." Criminal defense lawyer and buckskin-garbed media star Gerry Spence complains that television in court gives all trial participants "camera-itis"; even Judge Ito has apparently not been immune to that affliction since he deemed it appropriate to give a series of personal interviews for a local television station before the trial began. One waggish contributor to the O. J. Simpson Bulletin Board on the Internet has argued that Judge Ito for several months has been impersonated by actor Ben Kingsley.
     As a recently retired lawyer, I am perhaps entitled to mention some evidentiary highlights.
     One feature of the case for the prosecution has evoked memories of Sherlock Holmes. I refer, of course, to testimony regarding the dog that, unlike its famous predecessor in "Silver Blaze," barked in the night time. Dick Thornburgh, former United States Attorney General, was among the first to note that the man exculpated by Arthur Conan Doyle's silent dog was another Simpson, Mr. Fitzroy Simpson. In L.A., however, the animal is bent on a conviction. The prosecution seeks to identify its barking dog with Nicole Simpson's bloody-pawed Akita which led two passersby to the Bundy murder scene. Through the evidence of neighbors who heard the howls of a distressed canine during the night of June 12, the State hopes to fix the time of the murders near 10:00 p.m., well within the brackets of the time period when O. J. Simpson's whereabouts probably cannot be accounted for by believable defense witnesses.
     There has been considerable discussion among American legal commentators concerning the proper evaluation of evidence regarding 

barking dogs. The late Professor Irving Younger, in one of his lectures on trial practice, once suggested, mainly in jest, that testimony about a dog's barking may be hearsay since the animal cannot be subjected to cross-examination about the facts that inspired its cry. Recently, a member of one of the countless panels of trial lawyers summoned to opine on technical issues in the Simpson case countered that, even assuming Professor Younger was right, the barks would still be admissible under the hearsay rule's exception for "excited utterances."
     I must tell you that I am absolutely appalled by the reluctance of some of my countrymen to recognize the emotionality and intelligence of the higher animals. A Simpson defense lawyer, for example, treated with exaggerated contempt the testimony of a prosecution witness that the barking dog sounded "unhappy." In my law firm's restaurant I often find myself in heated controversy on this issue. When my back is to the wall, I refer my colleagues to the Green Parrot murder case of 1942. The proprietor of the Green Parrot Restaurant and Bar in uptown Manhattan was found shot to death, and the establishment's eponymous parrot kept repeating a word that the police first understood as "Robber." But two years later a detective returned to the scene and listened more attentively to the bird's vocabulary. The green parrot had not been crying "Robber" but "Robert," the only bar patron whom it had learned to greet by this name. The killer, Robert Butler, was tracked down as a result of the bird's powers of communication and sentenced to a term in Sing Sing.
     Judge Ito, usually cautious on evidentiary issues, has made at least one ruling against the defense that may lie in the realm of prejudicial error in the event -- increasingly unlikely -- that the trial should result in conviction. It was, in my view, a clear mistake to admit the testimony of O.J. Simpson's friend Ron Shipp that on the night after the murders Simpson told him that in the past he had dreamt about killing Nicole.
     Although American case law on admissibility of "dream" utterances or recollections is divided, many courts have rejected such evidence on the ground that dreams are not the product of conscious thought. In 1992 the Supreme Court of Illinois, in Illinois v. Kidd, 147 Ill.2d 510, 591 N.E.2d 431 (1992), reversed defendant's conviction on grounds including the erroneous admission of "dream" statements overheard during sleep by a former girlfriend (a strong argument, by the way, for the separate beds once mandatory in Hollywood films). The Illinois court explained its ruling:

Dreams are imaginings and fantasy, and involve little logical thought. Furthermore, we are not aware of any scientific agreement, at present, 

that dreams can be explained in purely psychological, rather than, physiological, terms.

[I]f we are to be judged by the wishes in our unconscious, we are like primitive man, simply a gang of murderers. It is well that all these wishes do not possess the potency which was attributed to them by primitive man; in the crossfire of mutual maledictions mankind would long since have perished, the best and wisest of men and fairest of women with the rest.

limousine as ultimately ensued on the night of June 12. I offer the possibility that Simpson (if guilty) may have frequently stalked his wife at her Bundy residence, forearmed with knife, gloves and cap (the last perhaps intended as a crude disguise), and that he reverted to his custom on June 12 in a state of unusual agitation; the fortuitous arrival of Ron Goldman led to the two murders.
     Why is it possible that Simpson was particularly angry with his former wife that day? It has been suggested that this proud man had come to the recognition that for the second time Nicole had broken off their relationship and that this time the rift appeared to be irreparable. Nicole's rejection of O.J., even as father of her children, was dramatized earlier on June 12 by her refusal to allow him to participate in the family celebration at the Mezzaluna.
     An unusual sidelight, which I doubt the jury will ever understand, is that Nicole's final decision to break up with O.J. was affected by income tax maneuvering. In early June, O.J., through his lawyers, notified his ex-wife that she could no longer report his Rockingham residence as her domicile, and in so doing put in jeopardy a deferment of capital gains taxes in connection with her sale of a San Francisco property. The jurors' eyes probably glazed over when the lawyer's letter was put in evidence early in the trial.
     Another puzzle of the case can be quickly put: what does a would-be murderer look like a half hour before he commits two horrific murders? I must confess that I haven't the slightest idea. Kato Kaelin, Simpson's houseguest, says he drove to a fast-food restaurant with his host in the evening of June 12, and that O.J. munched calmly on his burger, too calmly by half, runs the defense argument, for O.J. to have cruelly dispatched his ex-wife and Ron Goldman shortly after parting with Kaelin around 9:30 p.m.
     Having avowed my own ignorance of the facial expressions of killers before their crimes, I defer to the imaginative powers of Charles Dickens. I refer you to his essay, "The Demeanour of Murderers," analyzing the self-possession of William Palmer at his trial. In Dickens's view, the coolness that trial spectators took as proof of innocence was part and parcel of the remorseless personality capable of the murders of which Palmer was accused. He attributed these words to Palmer standing at the bed of a poison victim:

I knew . . . when I stood at his bedside looking down upon his face turned to me for help on its road to the grave through the frightful gate then swinging on its hinges, that in so many hours or minutes all those horrors would infallibly ensue.

     A final point must go to the defense. If O.J. Simpson committed the crimes, what happened to the weapon and how was it that no traces of the bloodbath were readily observable on his clothing? These crucial gaps in the prosecution's case must have been contributing factors in its decision to build up its circumstantial proofs at such a lumbering pace.
     In classic cases of the past juries have responded variably to the absence of the murder weapon or of bloodstains on the accused's person or garments. Collectors are still hunting for William Corder's knife yet the Red Barn murderer went to the gallows. Both Wallace and Courvoisier were convicted despite the failure of the police to find incriminating bloodstains on the suspects. In our country, however, Lizzie Borden's acquittal may have been due in part to her blood-free dress and to the disappearance of the celebrated ax. To commentators or films that have suggested she committed the crimes in the nude, it has been replied persuasively that a Victorian girl was quite capable of murdering her father but not of appearing before him naked.
     Thank you ladies and gentlemen, for your courteous attention to this totally premature commentary on the O.J. Simpson case. Probably most of what I've said will be proven wrong by subsequent developments. That's why you and I will continue watching television.

     My prediction to Our Society that O.J. Simpson's celebrity and the "likely reluctance of African-American jurors in the Los Angeles area to believe in the fairness of a police investigation directed against a member of their race" would impose "substantial roadblocks" to conviction was, of course, borne out. On October 2, 1995, the jury acquitted Simpson after having "discussed the merits of the case . . . for about two hours -- less time than most other adults in America." Jeffrey Toobin, The Run of His Life: The People v. O.J. Simpson 428 (New York: Touchstone, 1997)(The only criminal penalties resulting from the long trial were a fine of $200 and a three-year probation sentence imposed on Detective Mark Fuhrman, who entered a negotiated no-contest plea to a perjury charge for having denied ever using the "N" word during the previous ten years.)
     In a 1997 civil suit against O.J. Simpson, a different jury "awarded $8.5 million in compensatory damages to the Goldman family for the wrongful death of their son. (The Browns had sought no compensatory damages because doing so would have required Sydney and Justin to testify against their father.)" The jury also added $12.5 million in punitive damages for the family of each victim. Toobin, The Run of His Life, at 457-458. See also Daniel Petrocelli with Peter Knobler, Triumph 

of Justice: The Final Judgment on the Simpson Saga (New York: Crown, 1998). In 2001 the California Supreme Court denied Simpson's appeal from the civil judgment.