If Simpson is found liable–the civil analogue to a verdict of ““guilty’’–many observers will draw the wrong conclusions. Some will say, ““See, the first jury must have been wrong.’’ They will not understand how the same defendant could have been found ““not guilty’’ at a criminal trial and ““liable’’ at a civil trial. As even some of my sophisticated friends have put it: ““Either he did it or he didn’t do it.''
The fallacy in this reasoning is that it was not the function of the criminal trial to determine whether or not ““he did it.’’ A criminal trial is not a ““who-done-it.’’ If it were, the jury would not have been instructed that if it merely finds that the defendant probably did it, it must acquit him. Though ““probably’’ is enough for many decisions we make in our daily lives–such as voting for who would make a better president–it is not enough to put someone in prison. A jury in a criminal case cannot convict unless it concludes that the prosecution’s evidence proved the defendant’s guilt ““beyond a reasonable doubt.’’ Whatever that talismanic phrase means–and the courts are reluctant to be specific–it means a lot more than that he ““probably’’ did it. In a civil case, ““probably’’ is quite enough, since the purpose of a civil trial is to decide whether it is more likely than not that the defendant did it.
So, both juries could be absolutely right, even if one acquits and the other finds liability on precisely the same evidence. Moreover, the evidence will not be the same. The criminal trial was more about the forensic evidence and those who collected and processed it than it was about the defendant. The defense managed to put Dets. Mark Fuhrman and Philip Vannatter on trial, and that was appropriate, since in a criminal case a defendant has the right to put the state to its proof and not participate in the presentation of evidence. O. J. Simpson invoked the right and did not testify. (Well, maybe a little, when he took advantage of the prosecutor’s blunder in having him try on the gloves and spoke directly to the jurors.)
In the civil trial, the specter of Fuhrman’s guilty plea to a single count of perjury will be in the air, whether or not he actually testifies. But Fuhrman will take a back seat to Simpson himself, who will be on trial and will have to provide evidence. His testimony will be the centerpiece of the civil case.
If the jury comes back with a verdict against Simpson, many blacks will conclude that this was ““white justice’’–that it was the plaintiffs who played the race card this time. Many whites will disagree, seeing the verdict as neutral justice. (It is interesting how much easier it is for whites to see the race card played to black jurors than it is for them to see the race card played to white jurors.) This will be especially so if the verdict is divided–all that is needed is nine out of 12 for a civil verdict–along racial lines.
What if the verdict in the civil case comes out in favor of Simpson? That would be a finding that Simpson didn’t do it. Would such a finding change any minds among the 80-plus percent of the public who believe that Simpson did it? Probably not, especially since they will not have seen with their own eyes why the jury found for Simpson. (This trial won’t be televised.) It will, of course, depend somewhat on the racial composition of the civil jury and of the final vote.
Another variable at the second trial is Judge Hiroshi Fujisaki. No judge could be more different from Judge Lance Ito. Judge Fujisaki is a no-nonsense, efficiency-oriented jurist who seems determined to move this case along in record time. Some observers fear that his judicial haste may make judicial waste, raising the prospect of an eventual appellate reversal for the losing side and–heaven forbid–yet another round in the case of this century that may extend into the next.
If I were asked by either side how to prepare for this trial, I would advise focusing on three things: Simpson, Simpson and Simpson. If Simpson is called as a defense witness, the direct examination should include every hard question that is likely tto be asked of him on cross-examination, in order to deflect the force of hostile questions from the other side. An effective direct examination makes cross-examination seem redundant, badgering and irrelevant, since all the hard questions have already been asked and answered. Simpson should be asked on direct about his admitted spousal abuse, as well as about the other nasty allegations that he disputes. If Marcia Clark had followed this approach in her direct examination of Fuhrman, instead of coddling him by throwing only softballs, F. Lee Bailey’s cross-examination would have been effectively blunted and the racial issue largely defused. It takes guts for a lawyer to be tough with his own client or witness, but Simpson’s best chance at the civil trial is to answer tough, even embarrassing questions put by his own lawyer without appearing arrogant, belligerent or defensive.
If Simpson is called as a plaintiff’s witness–as he can and may well be–his ““direct’’ examination will really be cross-examination, since it will be conducted by the opposing lawyer. This will make it more difficult to blunt the force of hostile questioning.
All of this assumes that 12 Angelenos can be found who have not made up their minds as to whether Simpson did it or not. I have never seen a case where so many–on both sides–believe they know what happened. (My own view is that because of the mishandling of crucial evidence by the police, we may never learn for certain what happened on that tragic night.) But history provides some hope for a fair trial. In 1807 the former vice president of the United States Aaron Burr was placed on trial for treason. President Thomas Jefferson pronounced him guilty and threatened the presiding judge, Chief Justice John Marshall, with impeachment if he ““should suffer Burr’’ to escape justice. Marshall himself declared that ““it would be difficult or dangerous for a jury to acquit Burr, however innocent they might think him.’’ And several of the jurors acknowledged before the trial that they believed the defendant to be guilty. Yet Burr accepted these jurors, stating that he would rely on their ““integrity and impartiality’’ in assessing the evidence. In the end, the jurors agreed on an unusual verdict: ““We the jury say that Aaron Burr is not proved to be guilty… by any of the evidence entrusted to us.’’ Burr objected to the form of the verdict, insisting on an outright acquittal. The jury refused to change its precise wording, and the cloud of possible factual guilt hung over Burr for his remaining years.
The American jury is a remarkable institution. If the civil jury in Santa Monica is selected fairly and deliberates fairly on the evidence presented at this trial, it may well be able to render justice, despite the polar divisions with which it will almost certainly begin its difficult task. The tragedy is that the world will not be able to judge for itself whether justice was done, because of the ban on television cameras. And for justice to be done fully, it must also be seen to be done.
