COMMENTARY : SIMPSON MURDER CASE : Equal Justice--and a Defendant With the Money to Exercise Every Right

Tens of millions of Americans watched at least part of the televised preliminary hearing in the O.J. Simpson case, making it by far the largest program of mass education in courtroom procedures in the nation’s history.

But the version of criminal practice that viewers have seen resembles the real thing only to the same extent that a pristine architect’s model of a cityscape--perfectly tidy, immaculately clean and expensively detailed--resembles the messy squalor of an actual city street.

The average preliminary hearing takes less than a day, often less than an hour, and the defense preparations are often similarly perfunctory. By contrast, from the debate over how many hairs could be plucked from Simpson’s head--a procedure that most defendants undergo summarily, and roughly, without benefit of judicial supervision--to the detailed, although ultimately unsuccessful, presentation of a motion to suppress evidence, People vs. Simpson has shown the public a defendant with the money to fully exercise every right provided to him under the Constitution.

Simpson is the most famous defendant ever arrested for murder in the United States, and for most middle-class Americans, his ordeal is as close as they ever will come to having a loved one on trial. For many Americans, the televised hearing may have served as a form of catharsis for the traumatic events surrounding the deaths of Nicole Brown Simpson and Ronald Lyle Goldman and the downfall of a man who was a hero to millions.

That sort of catharsis--along with a guarantee of fairness to the defendant--are the traditional reasons why our system has always provided open, public trials. In this case, the cathartic function of the hearing has been enhanced by the unusual speed with which the case has come to court.

In most cases, months, sometimes years, elapse between the crime and the giving of public testimony. Most preliminary hearings consist of little more than a low-ranking police officer reading someone else’s report. And even that seldom begins, as this hearing did, barely three weeks after the criminal act. To the public, that delay often frustrates the desire for a trial to provide closure for an awful event.

This time, however, the testimony took place while the underlying events are still fresh, intensively so, in the public mind. The freshness of the testimony could be seen in the court proceedings, particularly the sometimes fumbling testimony of key witnesses. Prosecutors clearly did not have time to coach witnesses on how best to provide their recollections. The testimony, at times, had a note of spontaneity usually missing from trials.

But those who sat glued to their television screens watching this hearing unfold should not mistake this case--or other high-profile courtroom dramas such as the recent Menendez brothers’ trial--for what normally goes on in the nation’s courtrooms.

Thirty-eight years ago, Supreme Court Justice Hugo Black wrote that “there can be no equal justice when the kind of trial a man gets depends on the amount of money he has.” But Black’s admonition remains a hope, not a reality.

Consider for a moment the case of People vs. Mayfield, tried a few years ago in San Bernardino and recently upheld by the state’s highest court. Like Simpson, Demetrie L. Mayfield was a black defendant accused of killing a woman he knew well and a man who appears to have been in the wrong place at the wrong time. And like Simpson, he faced the possibility of the death penalty.

That’s about where the similarity ends. Simpson’s lead attorney, Robert L. Shapiro, has assembled a team of half a dozen lawyers plus forensic pathologists, criminal investigators, analysts and paralegals to defend his client. Already, the attorneys have spent hundreds of hours in preparing the case, and the bill is expected to run into the millions of dollars.

Mayfield’s attorney, by contrast, practiced alone. According to court records, his entire preparation for the case encompassed 40 hours. The attorney conducted only one substantive interview with his client--on the morning the trial began.

Lawyers who appealed Mayfield’s conviction argued, as is often done in capital cases, that the low level of representation Mayfield got violated his right, under the Constitution’s 6th Amendment, to have the “effective assistance of counsel.” Because of a series of Supreme Court decisions that have lowered the standard for what “effective assistance” means, those claims are increasingly difficult to make. In Mayfield’s case, appellate judges conceded that the defense was less than zealous but concluded that no harm had been done. The evidence was so overwhelming that no defense would have helped much anyway, the courts ruled. Mayfield now sits on Death Row.

Mayfield’s case is hardly the worst. After all, his conviction has withstood attack. Despite the Supreme Court’s lowered standards, the level of criminal defense remains so poor, particularly in Southern states, but at times in California as well, that appellate judges in some cases have no choice but to overturn convictions and death penalties on grounds that the lawyers were simply incompetent.

Indeed, our entire system, with its understaffed prosecutors’ offices, overcrowded court dockets and harried public defenders, survives only because of a seldom-acknowledged bargain: We provide extensive rights to criminal defendants in theory, but do so in a system that usually allows only the affluent to employ those rights in practice.

If every accused defended himself as Simpson has done, the criminal justice system would rapidly collapse under the strain. Although Simpson’s case shows what money can get a defendant, it also has so far demonstrated the limits to what money can buy.

Simpson sat, day after day, at the defense table with the dulled, vacant expression so common to men caught up in the toils of the law. Television viewers could see an occasional tensing of his jaw muscles as the testimony rolled on, but as a defendant, he must remain passive in the face of the accusations against him.

Defense attorneys realize the danger--that passivity begins to turn a defendant into an object. So Simpson’s lawyers eventually provided him with paper and a pen to take notes, giving him at least some activity to pursue. Although the defense lawyers could do that, they were unable to do much else to slow the steady development of the state’s case during the six-day preliminary hearing.

The hearing shredded Simpson’s alibi, provided damaging physical evidence linking him to the crime scene--the bloodstained glove, for example--and, most important, revealed blood test results that strongly, although not conclusively, tie him to the murders. When Municipal Judge Kathleen Kennedy-Powell on Friday bound Simpson over for trial, she said there was “ample evidence to establish the strong suspicion of the guilt of the accused.”

In effect, as we live with this case for months, we may well find that this hearing was the real trial on the issue of guilt and that the only questions left will concern Simpson’s mental state and whether with so famous and well-liked a defendant, a jury will be inclined to grant mercy.