Vincent Bugliosi’s book “Outrage; the five reasons why O.J. Simpson got away with murder” is an excellent book that in my humble opinion should be required literature for anyone who wishes to understand the adversarial system, trial preparations and analysis, and most of all, the art of listening.
From page one it is clear that Bugliosi is angry. It isn’t just a title. The criticism jumps off the pages and you can feel the author sitting behind the keyboard hoping, that if he punches the keys with force the letters will have an even greater impact on the reader. He is fuming too and justifiably so.
No eyewitnesses, no bullets, no physical evidence connecting Mr. Simpson to the crime, that is what the “dream team” told the jury. We all know that two people, Nicole Brown Simpson and Ron Goldman, lost their lives in a gruesome manner.
Mr. Bugliosi sums up five reasons why the case was lost. A biased jury, change of venue downtown, Judge Ito allowing the defense to play the race card, the incompetence of the prosecution, and the summation.
The predominantly black jury gave Chris Darden, one of the two lead prosecutors, from the beginning the impression that “we didn’t have a snowball’s chance in hell of convicting O.J. Simpson” because he saw in their eyes “the need to settle a score.”
Mr. Bugliosi says “in fact, the question in the Simpson case has never been whether he is guilty or not guilty but, given the facts and the circumstances of this case, whether it is possible for him to be innocent.” That sums up the jury’s line of thought.
The jury did not seem to understand the most damning piece of evidence: the defendant’s blood at the crime scene. It was proven by DNA, conclusively, as his. There were blood drops found leading away from the two slain victims. Four blood drops were found to the left of a bloody size-12 shoe print, Simpson’s size. The morning after the murders, Simpson had a bandaged left middle finger. In fact, it was a deep cut on the middle finger’s knuckle.
Why did he get off? Let’s explore the five reasons.
1 The Jury
A predominantly black jury was faced with the daunting task to decide over the life of a person everyone lovingly called O.J. Bugliosi calls it the “in the air” phenomenon, that O.J. was untouchable. While news channels showed the Bronco slow-speed chase live on TV, people worried about O.J. Any other person of interest to the police would be tarred and feathered before police caught them. But this was O.J. and the media made it clear that he was theirs. This prejudiced the potential jurors.
Aside from swaying the potential jurors before they were even seated, the media glorified any lawyer who was going to defend O.J. and take on the monster of the prosecution who was ready to destroy their hero. Like Prince Philippe in Sleeping Beauty, with a hero’s sword and shield, these lawyers would ride into the dark forest to battle one-on-one the fuming and fire-spitting dragon that was lying in wait. The dream team would have to do the impossible to save the hero who could not save himself. So they became superheroes.
Their incompetence is brilliantly described in Bugliosi’s epilogue. One example, when Mr. Simpson was interrogated by the LAPD, his first lawyer was not there. Mr. Weitzman had opted for lunch instead. His only request to the LAPD: “please record the interview, will you?”
Mr. Shapiro, who succeeded Mr. Weitzman, was known as a plea bargainer and not as a trial lawyer.
Mr. Cochran who claimed to have won many cases actually never won a murder trial before a jury. He did defend Black Panther Elmer “Geronimo” Pratt in 1972 but Cochran lost that case. Pratt is serving a life sentence. Cochran is known as a civil lawyer who successfully represented several black plaintiffs’ claims in police brutality cases.
F. Lee Bailey came on board. An experienced trial lawyer and the only one with a good record. However, his last big case was the 1976 Patty Hearst’s bank robbery. Hearst was sentenced after a very short and weak summation by Bailey.
Mr. Dershowitz joined the team. However, being a prominent appellate lawyer does not mean that you are a brilliant trial lawyer. He is the best to go to after the verdict in the first instance.
The only experts in Simpson’s corner were Barry Scheck and Peter Neufeld but their specialty was DNA.
How did this affect the jury? They only saw stars rallying around another star. Add to that the way the media was reporting from day one that the case against O.J. was falling apart with spectacular adjectives (I suspect they went through the entire English dictionary with a highlighter) and the mix is complete.
2 Change of Venue
The murders happened in Brentwood, Santa Monica, where a jury pool would have a small percentage of black jurors. A Santa Monica jury would most likely lean towards quilty. The prosecution filed the case downtown where the percentage of black jurors would be much higher and with that the risk of a hung jury or a not guilty verdict. So why file the case downtown? The Special Trials Section that would handle the case was downtown.
If they had thought about the percentages and the long-term consequences instead of their commutes, they would never have made this decision. Mr. Bugliosi explains in more details the absurdity of this decision.
3 Judicial Error
To this day, people believe that the LAPD tried to frame O.J. Simpson because of his race. The prosecution did not handle the race factor very well. Judge Ito allowed the defense to use the race card so Mr. Simpson scored even more points with the already biased jury. As soon as you allow the defense to play the race card, we are not talking about guilty-not guilty anymore. We are talking about loyalty. Who is the real enemy here? The defendant, who is of the same race as the majority of the jurors, or the predominantly white prosecution?
What happened? I quote: “It wasn’t as if Judge Ito hadn’t been warned. I thought Chris Darden did an excellent job of forewarning Ito. In a January 13, 1995, pretrial hearing to determine whether the defense should be allowed to ask Detective Mark Fuhrman if he had ever used the word “n*****” in the previous ten years (this was months before the now infamous Fuhrman tapes surfaced.)
Darden, although overstating his case somewhat, nonetheless made this eloquent appeal to Ito: “[The word “n****”] is the filthiest, dirtiest, nastiest word in the English language. It has no place in this case or in this courtroom. It will do nothing to further the court’s attempts at seeking the truth in this case. It will do one thing. It will upset the black jurors.
It will give them a test, and the test will be, whose side are you on, the side of the white prosecution [a partial misstatement, since Darden himself is black] and the white policeman, or are you on the side of the black defendant and his very prominent and capable black lawyer? That’s what it’s going to do. Either you are with the man or with the brothers…”
Judge Ito allowed the jury to hear Fuhrman’s voice and not just once. He had them read the transcripts of another tape and then did the greatest damage. He decided over the objections of the prosecution, to play all 61 excerpts in open court for the media to hear but outside the jury’s presence. Explain this to me: the jury may not hear them but the media can? And you believe nothing of the excerpts will reach the jurors’ ears?
Please read that chapter for an excellent analysis including the real story about the black gloves, and the most damaging statement Simpson made. However, thanks to Judge Ito, the jury never heard it.
4 The Prosecution’s Incompetence
This chapter discusses the many mistakes made by the prosecution ranging from not instructing all of its witnesses not to talk to the media to miscommunication with the police where to send blood samples.
The jury selection was particularly interesting. Marcia Clark preferred black women over black men in the jury. Her reason was that black women, fed up with domestic abuse, would rally around Nicole and convict Simpson. Their marriage had been rocky at best. If Clark had dug into that marriage she would have found out that Nicole started seeing Simpson while he was still married to Marguerite, his black wife. So what would prevail in a biased black juror’s mind? Rallying around the white victim who stole the husband of a black woman? Not only did the black female jurors feel sympathy for the first wife, they were not sympathetic towards Clark. And that should have been their wake up call to shake up the jury’s composition.
Incriminating evidence was not presented in court. Simpson wrote a suicide note when he learned he would be charged with two murders. In his Bronco during that slow-speed chase he had a gun, a passport, a fake goatee and mustache, spirit gum to put the disguises on and make-up removal to take it off, clothes, and $8750.—in cash.
What nobody highlighted in the media were three receipts found inside the same bag with the disguises. They were from Cinema Secrets Beauty Supply in Burbank dated May 27, 1994, about two weeks before the murders. Incidentally, he bought the disguises a few days after Nicole returned jewelry telling him their relationship was finally over.
How about the phone call that he made to his mother during this slow-speed chase in which he cried and said “It was all her fault, ma,” trying to place blame on Nicole for everything that had happened. I would want the jury to know what Simpson’s frame of mind was at that time.
Last, please read what Bugliosi writes about the incriminating statement Simpson made to police the day after the murders. Pointing to the Band-Aid, they asked how he got that wound. He admitted he cut himself the night of the murders. Please read this carefully as the Chicago stay is discussed here as well.
This chapter also discusses the mistakes made during the autopsy, witness preparations, etc. It also questions why the prosecution did nothing to rehabilitate Detective Mark Fuhrman and why they allowed him to be the black sheep who lost the case for them.
5 The Summation
No trial is over or lost before the summation and if done well, you can correct prior mistakes, and highlight evidence. You have more latitude in this phase. It is the climax of the trial where the lawyers have their last but also their best chance to let the jury see the case through their eyes. So knowing that, you prepare. And rehearse, and rewrite.
The final summation is based on the evidence presented at trial. You make a comprehensive outline, add a time line, emphasize and draw conclusions. You may give examples, refer to common knowledge, literally tell a story to illustrate your point, etc. You speak directly to the jury, you walk in front of them, and you can look them in the eye. And you better be convincing because if the jury feels you do not stand by your summation, you have lost.
Mr. Bugliosi describes both Darden’s and Clark’s summations as weak with statements that were damaging to themselves. Any law student should read this chapter. This chapter will teach you more than a whole textbook can. Not only does Mr. Bugliosi discuss the mistakes made, he wrote his own summation printed in bold in between the text.
Bugliosi discusses the core of the problem: the defense was trying to make the jury believe that Simpson was framed. In their summation, the prosecution said nothing to discredit that theory.
The book ends with a powerful epilogue and has a few pages of pictures. I highly recommend reading this book by Vincent Bugliosi if you still think the glove did not fit (it did) and that Simpson’s lawyers are the dream team every defendant should have when facing trial in the first instance (they are not).