Gerald. F. Uelmen
Gerald Uelmen - professor of law at SCU and co-counsel for the defense in the O.J. Simpson trial - presented this talk to an Ethics at Noon session at the Markkula Center. With all the hype and sensationalism surrounding the trial and verdict, the Center was pleased to offer a more thoughtful context for reflection. The trial brought to the forefront ethical questions about race, economics, whistle blowing, and media responsibility, all of which were addressed in a question and answer period following the talk. A transcript of that exchange is available as the Uelmen Q&A article.
Perhaps the O.J. Simpson trial is best understood as a cultural phenomenon rather than a lesson plan. Any event that captures such widespread public attention for such a sustained period will have profound cultural repercussions. The slow white Bronco has been transformed from a vehicle into a metaphor. We have a whole new galaxy of celebrities: Kato Kaelin, Mark Fuhrman, Lance Ito, Marcia Clark, and Johnny Cochran. We will never think of the "N-word" in the same way.
As a law professor who spent his sabbatical right in the middle of it all, however, I kept looking for lessons. I'd like to share five of the hardest. I say they're the "hardest" not because they are difficult to comprehend but because there are no simple solutions to remedy them.
Yet for each, those who were unhappy with the verdict have proposed a simplistic remedy with little thought to the long-term consequences. As H.L. Mencken once said, for every problem, there's an obvious solution that is quick, easy...and wrong. Just as we argued against a rush to judgment in the trial, I would counsel against a rush to solutions after the verdict, lest we simply compound our problems.
Let me start with lesson number one: We all wear tinted lenses, but we don't all wear blinders. This lesson was brought home to me as I tuned in the pundits and commentators describing the day's events like a football game. What I found most amazing was that the same even could be described as a touchdown or a 20-yard loss.
It didn't take me long to figure out in advance precisely what spin would be offered by which commentators because they all saw the events through tinted lenses. Once they came to a conclusion as to the appropriate outcome, they tended to attach greater weight to the evidence supporting that outcome and lesser weight to the evidence undercutting it. I'm sure you've observed the same phenomenon among your friends; it's a very normal human response.
In a courtroom, we can deal with this tendency head-on by making jurors take an oath that they will keep an open mind until they've heard all the evidence and by constantly reminding them of their obligation to do so. We all heard the admonitions that Judge Ito delivered on a daily basis. Frankly, it did not surprise me at all that the verdict of public opinion was different from the verdict of our jury. The public didn't take the oath the jurors took and didn't have to follow the admonitions.
I don't mean to suggest that jurors don't wear tinted lenses, too. Obviously, like the rest of us, their life experiences will affect the credibility they give to particular witnesses or the weight they give to some evidence. That's why it's so important that juries represent the diversity of life experiences in a community. In the O.J. case, however, the jurors wore something else besides the tinted lenses we all wear. They wore blinders.
Because our jurors were sequestered, they didn't see the press conferences of the lawyers and the families of the victims. They didn't hear the spin of the commentators. They only heard the evidence in the courtroom. Thus, they had a perspective no one else had. None of us, in coming to a judgment about the case, can filter out what part of that judgment was based on the evidence and what on things the jury never heard.
For me, the most dramatic point in the trial was the playing of the Fuhrman tapes. I'd never experienced a moment like it, when you could actually feel the words searing into the consciousness of the incredulous listeners. Most of us had never heard anything like the racist rantings of Detective Mark Fuhrman and would never have believed a police officer could say such things. We forget that the jury never heard those words.
Because the jurors took an oath and because they wore blinders, they heard a different case than the rest of us. Why are so many ready to condemn their verdict as some perverse message that it was time for African Americans to pay back white America for centuries of racial oppression? I think it's because the verdict carries the baggage of the public reaction, which was divided on racial lines. That's not baggage the jurors are responsible for. In fact, they were instructed to ignore the potential public impact of their decision.
One simplistic remedy being proposed is that we throw away the blinders and no longer sequester juries. While we need to explore ways to modify sequestration to reduce the burdens and strains we place on jurors, we cannot abandon the effort to insulate jurors from all of the extraneous factors that have no bearing on the fair resolution of the facts based only on the evidence.
Which brings me to lesson number two: Bad journalism drives out the good. A corollary of this lesson is that journalism abhors a vacuum.
Many have focused on the television cameras in the courtroom as the only problem. I happen to agree that the cameras were a mistake because they affected the behavior of all the trial participants, judge, lawyers, and, most regrettably, witnesses.
The cameras, however, were not the real culprits. Those were the tabloids, who viewed the trial as a source of titillation and entertainment, and those members of the press corps who followed their lead. When the trial began, I had a very clear idea of the difference between tabloids and the legitimate press. As the trial progressed, that line became blurrier and blurrier. Just as economists say bad money drives out the good, we saw bad journalism drive out the good.
Reporters tripped over each other to report every leak, giving credence to the wildest rumors. Both the print and television media demanded a steady supply of stories, and when there was nothing new to report, Marcia Clark's divorce filled the vacuum. One tabloid even ran a topless photo of Clark, which they purchased from her obliging former mother-in-law. After that, all attorneys placed an immediate embargo on family pictures. I know there are a few of me floating around that I would not like to see on the front page of a tabloid.
The lawyers were not without blame in feeding this frenzy. But the remedy is not to gag the lawyers as a new rule of professional conduct announced by the California Supreme Court proposes. Rather than accepting responsibility for public statements, under this rule, lawyers could simply become the "informed sources" you see quoted without attribution. The Reporter's Shield Law would protect them from exposure, and the public would be deprived of vital information to help them independently assess the credibility of news sources.
Hard lesson number three is: Money makes a difference. This one is so obvious, I find it amusing that so many pundits seem shocked by it. We've long accepted the social reality that wealthy people eat better food, live in more comfortable houses, and get better medical care. Why does it surprise us that they get better representation in court? Why does it surprise us that a wealthy man would employ every resource available to him when his life or liberty is on the line?
What's even more amusing is that the most vociferous criticism of the Simpson defense effort comes from right-wing conservatives who extol the virtues of free competition in a market economy in every other aspect of our lives.
The demonstration that access to the best lawyers and the best experts can make a difference in the outcome should cause us to take a hard look at the level of representation we provide to indigents accused of crime. There are still places in America where a person on trial for his or her life is limited to a total budget that wouldn't have paid the hotel bill for one of the lawyers representing O.J. Simpson.
But instead of increasing resources for the poor, some politicians are seriously proposing that all criminal accused be limited to public defender representation. At the same time, others are trying to cut off all funding for death penalty resource centers that seek to raise the level of competence of lawyers assigned to represent indigents in death cases.
One virtue of an occasional defendant with the means to mount a well-financed defense is often overlooked: Such a trial raises the standard of performance for everyone. Like any other system, the criminal justice system has a tendency to relax when it isn't challenged. In California, 97 percent of criminal cases are disposed of without a trial. The evidence is never challenged. That may lead to carelessness, sloppiness, and worse.
Recently, for example, a San Francisco lab technician doing drug testing found that her tests were never challenged in court, so she simply started certifying that the seized materials were illegal drugs without doing any tests at all. Her fraudulent tests resulted in over 200 convictions before she was exposed.
Hopefully the Simpson defense will benefit thousands of other criminal accused by setting a more demanding standard of performance for the Los Angeles County coroner's office, the LAPD crime laboratory, and LAPD. homicide detectives.
Hard lesson number four is also a message for law enforcement: Garbage in is garbage out. The scientific breakthroughs that brought us DNA technology place a very powerful tool in the hands of law enforcement. Like any other technology, however, it's only as good as the people who operate it.
The incredible sensitivity of new testing regimens brings with it a greatly enhanced risk of human error. At the outset of the trial, Clark told the jury that collecting specimens for blood testing was as easy as mopping up your kitchen with a sponge. Apparently, the LAPD. actually believes that.
The training and collection procedures needed to reduce the risks of contamination will increase the demand of law enforcement for more resources. Police departments that are struggling to keep gasoline in their patrol cars will be hard pressed to invest in new technology for their laboratories. Perhaps it's time for statewide consolidation of police laboratories with statewide standards for training and qualification of technicians.
The fifth and final hard lesson is the most obvious of all: Racism is alive and well in America and so is denial. I was really struck by the difference in the reactions of whites and African Americans to the Fuhrman tapes. Whites were shocked and surprised. African Americans simply shrugged their shoulders and said, "What's new?" Now I'm hearing a lot of whites say, "Thank goodness we don't live in Los Angeles."
It's time for a lot more candor and a lot less denial in assessing the role that race plays in our criminal justice system. We think we've made a lot of progress in race relations in America, but the criminal justice system demonstrates some alarming trends. At the present time, one out of three African American males under the age of 25 is either in jail or on probation or parole. That exceeds the number of young African American males in college.
Study after study verifies that color makes a difference at virtually every stage of criminal proceedings. Whites do better at getting charges dropped or reduced. They draw more lenient sentences for the same crimes and go to prison less often. When you're on the short end of these disparities, it's hard not to come to the conclusion that our system of justice is far from color blind.
Did O.J. Simpson take unfair advantage of the life experience of his jurors to persuade them he was the victim of a police conspiracy? That's a fair question. Obviously it should not be a defense to the crime of murder that the investigating detective used the "N-word" in the past 10 years.
But that characterization of the defense misses the point: In denying and covering up his racism, Detective Fuhrman was exposed as a liar who could not be trusted. Trust is what it's all about, and the first step in building trust is to be honest with each other. For me, the biggest disappointment in the public reaction to the verdict is the extent to which it revealed the deep distrust that divides black and white in America.
Again and again throughout the trial of People vs. O.J. Simpson, the proceedings were characterized as a search for the truth. Perhaps that created the false expectation that at the conclusion of the trial, the truth would be revealed.
No trial has ever exposed the truth. A trial is simply a struggle for an acceptable level of human certainty. In criminal cases, we define that level as beyond a reasonable doubt. In civil cases, we demand only that facts be more likely than not. Ultimate truth is just as elusive in the courtroom as it is in the classroom or the chapel or the theater.
But we keep on searching for answers, and as long as we keep searching, we learn lessons about ourselves and each other. In the final analysis, those are the hardest lessons from the O.J. trial: That we wear tinted lenses. That our appetite for gossip and scandal distorts our mass media. That our appetite for money is what drives our economy, and what drives our economy drives our system of justice. That our sloppiness and carelessness cause injury to others. And that our ignorance and suspicion of each other cause pain. Perhaps these are the ultimate truths that elude us.
Gerald F. Uelmen is a professor and former dean of the Santa Clara University School of Law.
This article was originally published in Issues in Ethics - V. 7, N. 1 Winter 1996.