THE SIMPSON CASE : Not the Facts: Having a Jury Rule on Social Problems

Susan Estrich, a contributing editor to Opinion, is a law professor at USC. She served as campaign manager for Michael S. Dukakis in 1988

Lead defense attorney Johnnie L. Cochran Jr. made clear in his closing argument just what he wanted the jury to do, and it had almost nothing to do with Ronald L. Goldman and Nicole Brown Simpson. Accusing Detective Mark Fuhrman of being guilty of "genocidal racism," he told the jury, "If you don't stop it, then who?"

The Simpson-Goldman murder trial has been skillfully hijacked. The sideshow has become the main event. Asking the jury to rise up against a racist system is a brilliant defense strategy and a terrible abuse of the criminal-justice system. This is not what juries are supposed to do.

Early on, Simpson co-counsel Robert L. Shapiro expressed concern about injecting the issue of race into the O.J. Simpson defense. But it was plainly Simpson's best shot, maybe his only one. There are, after all, only two logical explanations for the blood evidence against Simpson: Either he is guilty, or he was framed by police. Sloppiness is not enough; contamination of evidence does not produce DNA that exactly matches the defendant's.

But the frame theory is problematic for any number of reasons. For one thing, there's no actual evidence to support it, as Judge Lance A. Ito ruled last month, in excluding those portions of the Fuhrman tapes dealing with the planting of evidence in other cases. Besides, there is no particular reason that the police would plant evidence against a wealthy celebrity who entertained officers at his home, hired off-duty officers to protect him, had been allowed to get away with beating his wife for years and was allowed to escape when anyone else would have already been arrested. There's no reason to think that the gang that supposedly couldn't shoot straight could pull off the cover-up of a century. There is only race.

Fuhrman's outspoken racism made Cochran's job easier. It is far easier for Cochran to argue that Fuhrman is guilty than that Simpson is innocent. Simpson became the stand-in victim for every African American who has ever been brutalized by the police--and there have been many--while the murder victims were relegated to the sideshow.

By late last week, Cochran was comparing the Simpson case to Brown vs. Board of Education and the fight against slavery, to standing ovations at the Congressional Black Caucus conference on Washington. On Thursday, one commentator remarked that Cochran hardly needed notes since many of his arguments and homilies drew directly on his experience in cases brought against police officers for excessive use of force.

In trying to get his client off--regardless of guilt or innocence--Cochran is doing his job. That is what he was hired to do, and he has done it incredibly well. But what is good for Simpson is not necessarily good for the rest of us--or for the criminal-justice system. To watch a trial that is supposed to resolve the question of who murdered your son turned into a referendum on racism by beat cops was obviously enraging to Fred Goldman. But the competing family press conferences that followed Cochran's statements were still a triumph for the defense strategy. They kept the focus squarely where Cochran wanted it--on race.

We were left arguing about whether the system was corrupt and who was responsible for it; whether Fuhrman is in the same league as Adolf Hitler; whether Cochran was wrong to be relying on bodyguards from the Nation of Islam; whether Los Angeles Police Chief Willie L. Williams was getting off easy because he is black. Everything except who murdered Nicole Simpson and Ronald Goldman.

Simpson is certainly not the first criminal defendant to try to avoid conviction by trying to change the subject from what he did wrong to what others did. At the pretrial phase, it's common to focus on police misconduct in order to exclude evidence of guilt seized by the police without a warrant or probable cause; Simpson's lawyers tried that tack repeatedly, and failed. Increasingly, that same approach is being used in the trial itself.

It used to be just rape victims who were put on trial instead of the defendants. Now we see it regularly in cases of spousal killings as well as trials of even adult children who kill their parents. It worked for Lyle and Erik Menendez; they admitted they pulled the trigger, and still got away with turning themselves into their parents' victims. It worked for the officers charged in the first Rodney G. King case. It worked for Bernard H. Goetz, New York's famous subway vigilante. It worked for Damian Monroe Williams, charged with beating Reginald O. Denny.

Simpson is not the first to play this game, but hopefully he will be the last.

Our ability to live together in a civilized society depends on the confidence of everyone that the law will be administered fairly, that the guilty will be punished without regard to race or wealth.

Asking juries to do the work of politicians and police chiefs is a recipe for disaster--certain to make things worse, not better, by destroying the confidence of everyone in the fairness of the system and encouraging vigilantism. The job of the jury is to decide on facts, not solve social problems.

Whatever the verdict, the Simpson case is almost certain to leave us more divided than we were before. It is feeding racial polarization and fueling the backlash against real racism that has turned white men into victims. But it will not destroy us.

Even after King and Denny, even after Goldman and Cochran, the dream of racial equality lives on. As the charges were flying in the courthouse Downtown last week, blacks and whites were lining up together by the thousands to get signed copies of Gen. Colin L. Powell's autobiography.

Whatever his future in politics, Powell's popularity is a powerful sign of the continued yearnings of Americans of all races for a society that transcends race. It is the challenge for political leaders, not juries, to build positively on those yearnings.*

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