Selected Skirmishes: Criminal Justice

Why fresh-squeezed O.J. is best.

I'll admit to being prejudiced against O.J. Simpson. My lifelong animosity began late one afternoon in November 1967. The Juice ran for 64 yards off left tackle, enabling his despised USC Trojans, ranked No. 2 in the national polls, to eke out a flagrantly undeserved 21–20 victory over my beloved UCLA Bruins, ranked No. 1. Not since that bitter moment has my football team returned to such a prestigious ranking, and so I would be demonstrably unfit to serve in judgment of the accused in The People v. O.J. Simpson.

But I can certainly write a column about the lying, murdering, despicable weasel. I'm a tad hasty to convict? Oh, maybe you're right—after all, Rosa Lopez saw the Ford Bronco at the Rockingham house with her very own eyes.

Barbara Amiel, writing in The Wall Street Journal, very nicely summarized the O.J. trial as a social calamity in its deviation from simple justice. Of the many things on trial in Judge Ito's courtroom, the issue of whether or not Orenthal James Simpson murdered Nicole Brown Simpson and Ron Goldman on June 12, 1994, appears to be only one of the minor ones. Depending upon the moment, the trial is all about "battered woman's syndrome." Or racism in America. Or LAPD incompetence.

Not even Tom Wolfe could make this stuff up. It is a raging bonfire of the vanities, with every social interest pouring on fuel and justice going up in smoke. It is an ugly sight, and the fumes may be toxic.

Take one of the smoking guns hired by the defense, the Honorable Professor Alan Dershowitz. A man of considerable talents and even occasional ethics, he boldly argued against the admission of O.J.'s wife-beating past into the motive phase of the case. His brief was statistical: While there are 2 million or so spousal abuse incidents in the United States annually, only 2,000 Americans are murdered by their spouses. Ergo, there is only a 1-in-1,000 chance that a man who beats his wife will kill her—far too slim a connection to admit such "highly prejudicial evidence."

Attorney Dershowitz has engaged in the foulest sort of numerical trickery. The 1-in-1,000 probability is nonsense, because it tosses out the most important and least disputed fact of the entire trial: Nicole Brown Simpson has been murdered. Instead of predicting what the chances are that a battered wife will be slain, we have two pieces of evidence and ponder a third: Given that Nicole was battered and that she was murdered, what are the chances the crime was committed by the ex-who battered her? Of the 2,000 such victims per year, one would think an overwhelming proportion—90 percent? 99 percent?—are murdered by those who abused them. (Looked at another way: What are the chances that a person who is severely abused will be murdered by someone other than the abuser?)

This logic is intuitively obvious. Indeed, the reason that defense counsel proclaimed the O.J. beatings highly prejudicial to the jury was that the jury would be wont to implicitly employ this logic of conditional probabilities. But isn't good evidence supposed to be prejudicial? Not even the proverbial smoking gun proves that A shot and killed B. It merely provides a "highly prejudicial" inference.

Judge Ito didn't fall for Dershowitz's folderol, and lanced this defense balloon. (Note: Do not be shocked to see an appeal filed on this point.) Why does such an esteemed scholar even attempt to put forth such a ludicrous argument? Because it is his job to attempt to fool the judge. That's the adversarial process! We might say Alan is a better lawyer that he is a statistician.

What we really mean is that he is doing well for his client by making up absurd statistical theories to sneak past the judge. We could go much further and boldly assert: Dershowitz would be no lawyer at all if he failed to pin the tail on this jackass of a brief.

Shortly after O.J.'s inspirational cruise down I-405 in the Ford Bronco, I heard a learned legal commentator opine that such erratic behavior was not a bad way for the defendant to kick off his legal defense, in that an insanity plea was the most logical way for Mr. Simpson to go.

Who, precisely, is nuts? Barbara Amiel's alert piece on the O.J. trial carried a curious pull-quote: "Railroading a guilty man…is as bad as railroading the innocent." Say what? Railroading guilty men is the ideal system of justice. The danger is that, in this effort, innocent bystanders will be swept under that steaming locomotive.

The faux pas is ultimately revealing. In focusing on the rights of the guilty, and in countenancing virtually any sort of conduct by esteemed members of the Harvard faculty in the pursuit of procedural fairness, we end up with a spectacle.

It is not simply a social eyesore. It diminishes respect for law, loses real criminals through the cracks, and even ensnares many an innocent—all because it costs so much to adjudicate the obvious when there are no penalties for advancing idiotic theories or wild-eyed objections.

But, of course, none of this logic or evidence should be part of the debate over criminal justice in America. It is far too prejudicial.

Contributing Editor Thomas W. Hazlett teaches economics and public policy at the University of California at Davis.