Absolutely 100 Percent Not Guilty

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New at Reason: The Trial of That Other Century has been Exhibit A in the case that America needs military tribunals for suspected terrorists. The Cato Institute's Timothy Lynch contends that thinking of the O.J. trial as the standard for criminal procedures is as misguided as Al Cowlings' in-car GPS system.

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  1. “Prosecutors are generally either (i) tremendously driven by their job or (ii) looking to build a resume of big successes that they can use in getting a post-government legal career.”

    Alkali, you’ve forgotten the third and fourth categories: (iii) those looking to advance political careers (e.g. Rudy Giuliani), and (iv) those too incompetent to earn much of a living representing clients who voluntarily choose them (e.g. my ex-wife’s attorney, a former county prosecutor who traded in his Mustang GT for a Focus shortly after he lost his re-election bid by a margin of 2 to 1).

    Steve (who got the house and the good car, and kept his 401(k) intact)

  2. Why is the Simpson case the only subject where complete ignorance is a requisite for libertarian comment? Mr. Lynch quotes Bugliosi approvingly as do some of the other posters,a man who has not tried a significant case in a quarter of a century,was nowhere near the Simpson trial and did not follow it even on television.The only response he could give to Dr. Lee’s devastating testimony is to say Lee is not all he’s cracked up to be.
    It couldn’t be that the State had a bad case because their evidence was dodgy,their witnesses liars,and their timeline ludicrous?

  3. We can debate every single detail of the OJ circus if we want. It doesn’t change the bigger point: Why do we always assume that the solution is to give prosecutors more power rather than more accountability? Prosecutors may be the most motivated people in the world, but that motivation can push them to cut corners and try to fool a jury just as easily as it can push them to do a fantastic job.

    I think the basic point of that essay is a good one, regardless of whether the example was good or bad: In our war on terror we should demand that prosecutors do the best job possible, not demand that they have as much power as possible.

  4. Alkali raises interesting points about the public choice aspect. It does seem that the prosecutors had great incentives to succeed, and that their superiors had equally good incentives to appoint competent people to the job.

    Herb Goldberg, who I think was third chair, was very good. He nearly demolished the defense’s case single-handed in his cross-examination of Henry Lee. Unfortunately neither the jury nor the media could see that. Forensic evidence is such geek-stuff.

    It’s not surprising Chris Darden was incompetent, since he was a token black.

    That leaves Marcia Clark as the great mystery. A quick Google turned up the information that Clark “excelled in her various positions”, including “the most complex and sensitive investigations”.

    http://makeashorterlink.com/?Q54D31E16

    (Is there no way to paste in these things?)

    Of course, this could be just quoting someone’s press release. Still, absent evidence to the contrary, it looks like the D.A. (whose name escapes my recollection), sincerely wanted to pick the best possible person for the job, and had every reason to think he had.

  5. No,I don’t think you can debate the details of the Simpson circus,that’s the problem.
    I had the same experience with Mr. Olson-Reason was kind enough to print a letter of mine questioning a “fact” he mentioned re the Simpson case.I received a very well-written and courteous reply,but my question remained unanswered.

  6. It’s Hank Goldberg,by the way,and for the benefit of those handicapped by actually watching the trial,what points did he score at the expense of Dr.Lee,I must have missed that.

  7. Mr. Thomas:

    Please support your (implicit) claim that all the libertarians who have commented on the subject are completely ignorant.

    Your comments on Bugliosi are irrelevant ad hominems.

    Henry Lee’s testimony was devastating to the defense, as I’ve mentioned elsewhere.

    Another point I’ve mentioned elsewhere is the effect of Fuhrman’s mendacity, and that Bugliosi did recognize its importance.

    The timeline was also a prosecution blunder, and Bugliosi said so.

    Did you even read his book?

  8. question: why do people care about the OJ case? it seems to be one of those things which grab otherwise reasonable people by the balls and tosses em around.

  9. Sorry about getting Mr. Goldberg’s name wrong. I had just looked it up, but something slipped mentally.

    I didn’t say Golderg scored points “at the expense of Dr. Lee.” I said he nearly demolished _the defense’s case_. In answer to his questions, Dr. Lee repeatedly contradicted the defense’s other experts, regarding their theories of how evidence was tampered with.

    You might not notice this watching on TV, unless you were taking careful notes. This shows the value of _reading_ about the case.

  10. Thanks for your reply,Mr.Tomlin,and you’re right,I should not have generalized-J.Neil Schulman did actually write a defense of Mr. Simpson,but in the main libertarian comment has been pretty awful.
    It’s usually strategic advice to the prosecutors well after the fact,and wouldn’t helped them if it had been timely.They considered all the bright ideas about the suicide note,etc. and rejected them.Nowhere do I detect any sympathy for the jury,who gave up a year of their lives,or even satisfaction at proof that lawyers you get in the private market are much better than their State counterparts.
    Yes I have Bugliosi’s book and read it several times,and the contempt for jurors there is palpable-do you mean to say the State could have shortened the timeline,as he did-how would that work at all?
    I still think it’s relevant to point out that Mr. Bugliosi was not a principal in the case,was never considered in a prosecutorial role,and you can judge his grasp of the facts by Hank Goldberg’s story of the frantic calls to him to factcheck items in the transcript,which he apparently hadn’t read either.
    Mr.Bugliosi has always been a stalwart defender of Fuhrman,and wrote the forward to one of his silly books.This flows from his ignorance of the case as well–Mr.Darden interviewed Fuhrman,didn’t trust him,and wanted no part of him in court.

  11. As to Dr. Lee,if any headlines could have been made cross-examining him,Hank Goldberg would not have been doing it.I admire Mr. Goldberg and Mr.Clarke for handling the toughest defense witnesses,but it seemed to me they were doing all the grunt work.He should have heeded Judge Ito’s advice and limited his cross to one half-hour.

  12. Bullshit! That jury would not have convicted that man even if he did the deed live on national tv. Cochran spewed some much crap during the trial it boggles the mind.

  13. Eric – I agree with you and with Timothy Lynch. Regardless of what happened during the trial, that jury was never going to convict OJ. The prosecution may have done a piss-poor job during the trial, but they really blew it in jury selection. In all reality, that trial was over before it even started.

  14. If Lynch and Reason have certain fears…
    the tribunals must disappear!!

  15. Even if one accepts that OJ had committed the crime, the point here should be about military tribunals. A failure on the part of the justice system does not mean we turn everybody we think is guilty of something REALLY BAD to military courts.

    It is simply unacceptable that a civilian and citizen should be subjected to military justice. Jose Padilla is the clearest case of the misuse of military justice. But the idea that someone NOT a member of a military force can simply declared an “enemy combatant” and subjected to military justice (and the lessened protections this gives the accused) is unconstitutional and illegal (check USC 4001 (a)No citizen shall be . . . detained by the United States except pursuant to an Act of Congress.”) Not to mention unconscionable.

    The Village Voice is not always the best of journalism, but they were right on about this, as is Cato. Check out:
    http://www.villagevoice.com/issues/0339/hentoff.php

  16. I don’t know enough about the OJ trial to have an opinion. And I’m rather proud of that.

  17. I have to echo Lynch’s praise for the Bugliosi book Outrage, which to my mind is one of the best books ever written on trial practice. Yes, the jury reached the wrong verdict, but the result was far from certain. Cook and Darden are to blame.

    However, I disagree with Lynch’s calling this an example of government incompetence. Yes, Cook and Darden were working for the government, and yes, they handled the OJ trial incompetently, but there is little reason to think that their incompetence on that occasion had anything to do with the fact that they worked for the government. Even if you think that a lot of the time, government employees slack off because they lack incentives to work hard and do a good job, the fact of the matter is that government prosecutors don’t really fit that mold. Prosecutors are generally either (i) tremendously driven by their job or (ii) looking to build a resume of big successes that they can use in getting a post-government legal career. In the context of the OJ trial, the archetype of the slacking government employee is particularly inapplicable, because Cook and Darden literally had the eyes of the nation on them, and they had every incentive to do a great job. Indeed, they did work incredibly hard — late nights, weekends, etc. The fact that they did badly can be chalked up to human frailty, nothing more and nothing less.

  18. Bugliosi described the O.J. jury as “lacking in intellectual firepower” and biased in favor of Simpson. He argued that a more effective prosecution could have overcome those difficulties. But he also said that the prosecution, incompetent as it was, did prove its case beyond a reasonable doubt. The clear implication is that an unbiased jury of average “intellectual firepower” would have convicted despite the prosecution’s errors.

    I think it is misleading for Lynch to suggest that Bugliosi blamed the outcome entirely on the prosecution’s errors, when in fact he recognized problems with the jury as well.

    I’ve never been convinced that the prosecution is to blame for the jury. Clearly the judge should be blamed for confusing “impartial” with “ignorant”. It is often said that Clark deliberately stacked the jury with black women, when she should have done the opposite. But Clarke denies that. She says that black women predominated in the jury pool, so they would still have dominated the jury after she used up her challenges. Also, it is illegal for even peremptory challenges to be based on race.

    Lynch overlooks a blunder much more important than two of those he lists. The prosecution knew that Mark Fuhrman had a questionable background on the race issue. They tried to use legal tricks to hide that from the jury, instead of bringing it up early themselves and defusing it. They got caught, and so lost the trust of the jury. The importance of this was emphasized by Bugliosi, and by the jurors themselves.

  19. “Bugliosi described the O.J. jury as “lacking in intellectual firepower” and biased in favor of Simpson.”

    Sounds accurate to me.

  20. My interest in this topic has about run out, but I don’t want to leave uncorrected the claim that Bugliosi “has always been a stalwart defender of Fuhrman”. One of Bugliosi’s criticisms of the prosecutors is that they were too easy on Fuhrman.

  21. Sorry not to be sustaining your interest,Mr.Tomlin,but you’re quite wrong about this.Bugliosi not only defended Fuhrman in his book,but criticized the prosecutors for not standing by him after the tapes had left little doubt that he was lying.”The DA treated him as if he were beyond redemption or rehabilitation.” “There’s no question that Mark Fuhrman was defamed,vilified,maligned,and slandered far,far more at the trial than Simpson…why didn’t they try to rehabilitate Fuhrman with the jury?I know I would have.”All the above from your bible “Outrage”.

  22. Bugliosi defended Fuhrman on some points, and criticized him on others. Your claim was that he was “always” a defender of Fuhrman.

  23. Now it’s my turn–have you read Mr. Bugliosi’s book??There is not any criticism of Fuhrman in it at all.No sense that Bugliosi is upset by the language or the lies,only that it presented a tactical problem for the prosecution.He intends to have it both ways as well,damning them for not bringing out Fuhrman’s racist past in advance of the defense and later for not standing by him and trying to prop up his testimony.This would have backfired horribly for them,as the jury didn’t believe MF on direct,but that is in the nature of unsolicited advice.
    He also implies on one page that Kathleen Bell,an independent witness to Fuhrman’s racist rants was credible,and then later chides the State for not using police witnesses to counter her.In later years he’s come to say that Mark should not have used such a silly lie,believed by just about no one-but if he would lie so baldly about an irrelevant matter,why would anyone take his word on anything of substance?
    As a libertarian,I do commend Bugliosi for spotting a market and exploiting it.There was a need for those who believed Simpson guilty for a rationale,and he has given them that.
    There was also no contradiction of defense experts in Dr. Lee’s testimony,by the way-did you get that from Mr. Bugliosi as well?

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