Markkula Center of Applied Ethics


Questions and Answers on the O.J. Simpson Trial

This dialogue is excerpted from a question-and-answer session with Gerald Uelmen following a presentation at the Markkula Center for Applied Ethics.

Q: Would you say a little bit about the ethical issue of whistle-blowing vis-à-vis Mark Fuhrman. On one side, society, I think, would like to have had Fuhrman's fellow officers whistle-blow on him. On the other side, police officers argue that they need a kind of code of silence as part of their community, as a necessary part of how they run their lives. Do you find credibility in that?

—Timothy Healy, chair, Department of Electrical Engineering, SCU

[gerald uelmen]
Gerald Uelmen

A: I haven't heard any credible police officers argue that the code of silence is some sort of necessity for their profession. Most of them deny that it exists. They say, "We don't have a code of silence," despite all of the evidence to the contrary....

There are a lot of cultural reasons, I think, why the code of silence is observed. But it should be clear to everyone that, if somebody like Detective Mark Fuhrman will say the things he said to a woman he had just met, you know damn well he has to be saying the same things to the people he was riding around in patrol cars with. And, it turns out, that's true.

I think ultimately when you see the record of discipline of Detective Fuhrman, you will see that his views were well-known within the L.A.P.D, that they were all brought out when he made an application for disability. And they simply sent him back out on the street and said, "You don't have a problem." Ultimately, the L.A.P.D. is going to have to answer for that.

Q: Earlier you made an interesting point that one of the beneficial effects of a high profile trial is that it demonstrates some of the deficiencies that need to be remedied. I read recently that there are now some defendants in lower level criminal proceedings who are appalled that their public defender doesn't have high quality graphics and hasn't run DNA tests and so forth. So, in a sense, the high profile trial has ratcheted up expectations of what normal should look like. Any comment?

A: One of our co-counsel in the Simpson case, Barry Scheck, runs a project out of Cardoza Law School called the Innocence Project. What they do is they retrieve [biological] evidence when it's still available and use DNA testing to exonerate people. So far, out of 16 cases they have processed, they have produced the complete exoneration, established the innocence of 13 of those defendants.

I mean, that's astounding when you stop and think about it because we all have such confidence, especially in administering the death penalty, that we don't make mistakes in terms of whether we got the right person.

And yet, there are lots of those mistakes around. And if those mistakes are the result of lack of resources, I think those defendants should be protesting loud and long about how they're being treated.

Q: This is a general question. As a lawyer, when you take a case like this, your conviction is to provide the most vigorous defense of the client. Is that rooted in a conviction about the innocence of the client, or is it rooted in [the idea] that the system only works if both sides work to their full vigor?

—Stephen Privett, S.J., vice president for academic affairs, SCU

A: It's rooted in the conception of the adversary system and the role of the lawyer in that system. We are not the judge. When a client retains a lawyer to defend him, he does not want someone to judge him and to say, "Well, I think you're guilty; I think you're innocent." He retains a lawyer to present his case in the strongest posture possible.

Now obviously, for some lawyers, coming to the conclusion that "my client is innocent" or "my client is guilty" is going to have a tremendous psychological effect on how vigorous they might be in performing their role.

I say to students who want to do criminal defense work, if your conclusion about the guilt or innocence of your client is going to get in the way of providing the most vigorous advocacy that you are capable of and that the law allows, then you should not be representing that client. You should withdraw and let some other lawyer do it who doesn't have the hang-ups or the compunctions that you do.

I never had any problem in this case. I never had any doubts of the innocence of our client. Throughout this proceeding he steadfastly maintained his innocence. I'm getting lots of letters say, "You must be having trouble sleeping at night," or "I hope you're having trouble sleeping at night." I don't have any problem sleeping at night.

Q: As you know, Mr. Cochran was criticized by many people, especially during his closing arguments, for bringing up race in the way that he did. My question has to do, not with whether you think what Mr. Cochran did was defensible or not, but rather with the larger question about the relationship between defense attorneys and their broader moral requirements. Some people said, for example, that Mr. Cochran was a good lawyer but a bad citizen. Do you think that kind of objection just indicates a fundamental misunderstanding of how a lawyer should see him or herself vis-à-vis the broader society? What are your thoughts about that?

—Christopher Kulp, associate professor of philosophy, SCU

A: Before this trial ever happened, Johnny Cochran had to be called one of the leading citizens of Los Angeles. I mean, he's spent his whole life in that community, and he feels very rooted in that community. He feels very much a part especially of the Los Angeles black community.

Most of his practice is devoted to representing the victims of police abuse in civil rights cases. And he has a good deal of experience on both sides of the criminal spectrum as well. For many years he was the chief deputy when John Van de Kamp CKSPwas the district attorney of Los Angeles County. Cochran was his right-hand man.

At one point in the trial, Johnny Cochran told me, "Now I know why the Lord sent me this case." I think [he said that ] because this case was like a paradigm of what's wrong with the L.A.P.D. And it offered an opportunity for him to combine his advocacy with some very heartfelt beliefs about the problem that was really at the root of it all.

I think lawyers have to be aware of the broader social issues that they're dealing with.... I think [Cochran] was certainly well aware that, when he spoke to that jury, the entire community was listening.