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Taking Aim at the Trial of the Century

[Review of Vincent Bugliosi, Outrage, and H. Richard Uviller, Virtual Justice. Originally appeared in the Wall Street Journal, July 24, 1996]

"O.J.'s going to kill me someday," Nicole Brown Simpson told friends, "and he's going to get by with it." Vincent Bugliosi tells how he did in "Outrage" (Norton, 356 pages, $25). The former Los Angeles district attorney (and true-crime author of "Helter Skelter") has a field day skewering virtually everyone involved in the Simpson case. But his main brief is to expose the many errors of the prosecution.

Confident its blood-ID and other proofs would suffice to nail the former football star, prosecutors withheld from the jury a stack of evidence concerning his doings after the murders: his equivocal statement to police, his abortive suicide note and the story of the Bronco chase, where he set off accompanied by an old friend, $8,750 in cash, a passport, a gun and a false goatee and mustache. The receipt for the disguise turned up in the Bronco too. It came from Cinema Secrets Beauty Supply in Burbank and was dated May 27, 1994, about two weeks before the murders -- a bit of damning Simpsoniana readers may encounter in this book for the first time.

Apparently the district attorneys feared the maudlin suicide note might rouse sympathy, while the police statement might let Mr. Simpson have his say without taking the stand. But along with predictable denials of the murders, both documents were full of highly incriminating admissions on such matters as how and when he sliced his hand and bled all over his car. "Give me a yellow pad and one hundred hours and I would have convicted Simpson on [the police] statement alone," brags Mr. Bugliosi. Instead the state squandered weeks on coroner's testimony that led nowhere.

The state's soft sell sometimes bordered on apology. "You may not like me for bringing this case," Marcia Clark told jury prospects. Chris Darden in final argument: "Nobody wants to do anything to this man....There is nothing personal about this, but the law is the law." But jurors needed to hear it would not be understandable for them to vote either way, that letting this man off would haunt them forever.

A trial lawyer, Mr. Bugliosi tells us, "has to put a bib on the jury and spoon-feed it." But Ms. Clark spent less than a page of her final statement waving off the defense's charge of a vast police conspiracy, rather than hammer away at how many officers would have had to join the plot, how unlikely the motivations and coincidences would have had to be, how high the chance of detection -- in short, how desperate, fantastic and slanderous the whole frame-up theory was.

Also entering the book's reputation-grinder head first is L.A. District Attorney Gil Garcetti, who keeps switching stories on why he chose to try the case downtown rather than in Santa Monica, with its far more pro-prosecution jury pool. The misnamed "Dream Team" defense, supposedly the "best that money can buy"? No such thing: It lacked murder-trial experience and failed to interview key witnesses. The jury? "Not a normal jury. If it was, we should start packing our bags for Madagascar." Johnnie Cochran? "As two-faced as a tower clock". As for flaying Judge Lance Ito, Mr. Bugliosi takes his number and gets in line.

The New York Times recently called Mr. Bugliosi a blowhard, and his often coarse and boastful tone does grate. "The prosecutors were far too civilized for the defense attorneys," he writes. "That would not have happened if I had been in that courtroom." We believe him. But clarity and powerful marshaling of argument still vault this book to the top of the Simpson stack. And he never forgets why we should care. "This book is for people who are very angry that a brutal murderer is among us -- with a smile on his face, no less -- and want to know how this terrible miscarriage of justice could have occurred."

As for what to do, he starts promisingly -- abolish peremptory challenges, kick the cameras out of the courtroom -- then turns and begins defending most current practice, rather as if Upton Sinclair had ended "The Jungle" by assuring readers that it was after all OK to tuck into a nice plate of Chicago sausage.

Readers looking for subtlety will find plenty in H. Richard Uviller's "Virtual Justice: The Flawed Prosecution of Crime in America" (Yale University Press, 318 pages, $30.) Avoiding the Simpson case, the Columbia law professor and former prosecutor steers mostly a mainstream academic line, admitting to ambivalence over the exclusionary rule (perhaps fixable by techno-measures like letting judges issue search warrants by walkie-talkie) but dismissing the view that criminals get off easily as mere "myth".

After various thoughtful observations, Mr. Uviller drops a little bomb: Troubled by the way our lawyer-driven criminal process leaves so much to chance and adversary skill, he is increasingly attracted to the judge-directed method of inquiry used in most European countries. "In an unfortunate word with overtones of ancient abuses, we call this model inquisitorial." It certainly made this reader start turning the pages with fresh interest, but then the book ended.