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January 2, 2006

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.

Judge Not...

[Review of Guilty: The Collapse of Criminal Justice by Harold Rothwax (Random House). Originally published in Commentary, May, 1996]

In Detroit, a rapist held fourteen-year-old Angela Skinner captive in his apartment, threatening to shoot her if she tried to escape. When police broke down a padlocked gate to free her, she led them to a closet where the man kept his guns. The rapist was convicted, but on appeal a federal court excluded the weapons from evidence and overturned his conviction because the police had obtained Angela's permission alone to look in the closet, and not his.

To much of the American public, stories like this are familiar, and infuriating: ever since the Warren Court proclaimed a series of new rights for criminal defendants in the 1960's and 1970's, the bad guys have gotten off on technicalities and crime rates have soared. Yet members of the legal establishment see things differently. Tales like Angela's, they say, are atypical; the new constitutional protections undercut relatively few prosecutions, and in any case the origins of the crime wave lie outside the legal system. Thus, a 1988 American Bar Association (ABA) report complains that "the public mistakenly looks to the criminal-justice system to eliminate the crime problem," and contrasts that unlettered view with the perspective held by "professionals," like the ABA's own members, who know the courts play "a more limited role in crime control and crime prevention."

The ABA's view has become a bit less tenable with the appearance of Guilty: The Collapse of Criminal Justice. Harold Rothwax, a judge in the New York State courts for the past 25 years, is nothing if not an experienced observer of the Warren Court doctrines in action, and he reports that they do in fact pose a big obstacle to putting malefactors behind bars. What makes Rothwax's testimony all the more piquant is his background: before joining the bench he practiced as a criminal-defense attorney for twelve years and also served as vice chairman of the New York Civil Liberties Union, a central shrine for the veneration of the Warren Court.

Guilty starts in familiar territory--the Miranda decision requiring police to advise arrestees of their right to remain silent; the exclusionary rule, which directs a judge to suppress even highly probative evidence when the police have stepped over a line to acquire it; and the modern trend toward excluding confessions given in police custody because they may have been coerced. Rothwax then goes on to explore less well-known topics, like the state statutes that enforce the constitutional guarantee of a speedy trial. In one egregious example, a Brooklyn man, charged with shooting his landlord, was apprehended after skipping two court hearings but was then let go on the grounds that the state had deprived him of his right to a speedy trial by failing to be sufficiently diligent in trying to catch him.

To Rothwax, the problem with the Warren Court's innovations is not only that they occasionally let the guilty go free; they also make the process numbingly cumbersome for everyone else. As a result, the difference between an outrageous marathon like the O.J. Simpson trial and the average court case is mostly one of degree, not of kind. Not everyone can afford a Dream Team, but even humble defendants, laments Rothwax, can watch judges "sitting by helplessly while attorneys are visibly engaged in an attempt to twist or foreclose the truth."

Current search-and-seizure doctrine abets this situation by leaving it hopelessly unclear when police actions will or will not be upheld in court. This, in turn, results in lengthy disputes that grind down the will and ability of prosecutors to prosecute. "If," Rothwax writes, "a street cop took a sabbatical and holed himself up in a library for six months doing nothing but studying the law on search and seizure," he would still not know how to obey the law-even if the state's chief justice agreed to ride along in the back seat of the patrol car to offer advice.

In style and in tone, Guilty is closely modeled on Philip K. Howard's successful The Death of Common Sense. Like Howard, Rothwax excels at storytelling while sometimes ducking hard issues by an appeal to "common sense," a concept that seems these days to serve much the same interpretive function some Protestant theologies once assigned to "inner light." The book is a quick read, concealing artful organization beneath a seemingly rambling surface, and in style it is admirably clear and direct, though occasionally falling into cliche or solecism. The fact that it is without source notes, bibliography, or even an index may tempt some readers to dismiss Guilty as a kind of talk-show appearance between hard covers; it is not.

As for Rothwax's concrete recommendations, they are not really as radical as one might conclude from the peals of outrage that have greeted this book from some quarters, most notably lawyers working the defense side. For instance, Rothwax favors sharp cuts in the number of peremptory challenges to jurors, an idea embraced by many other reformers as well. His proposal to allow juries to draw adverse inferences from a defendant's silence, outlandish as it may sound to contemporary ears, would do no more than restore American law to where it stood as recently as 1965. A sharper break from the past is his suggestion that we drop the requirement of unanimity among jurors, in favor of 11-1 or even 10-2 verdicts. Unfortunately, the main effect of such a change might be less to avert hung juries than to reduce the amount of time juries spend in deliberation--not necessarily a desirable objective.

Rothwax also makes a strong case for reform of "discovery" statutes. These require prosecutors to hand over information in their possession--witness lists, recordings and notes of interviews, and the like--to the defense before trial. In the old days, the defense would have a right to such material only if it tended to exonerate the accused. Newer laws require far more material to be handed over, at penalty of a mistrial, in order to avoid surprise or "ambush."

These laws, however, routinely encourage defense attorneys to tailor their stories so as to fit the contents of prosecution files. "We'll devise a defense," said O.J. Simpson attorney Robert Shapiro, "once we know what the state has to offer." In Judge Rothwax's own court, a gunman initially claimed that he had not been the one who shot at a busload of hasidic students on the Brooklyn Bridge; then, having been positively identified, he claimed to have shot in self-defense; then, after it was established that the students had been unarmed, he fell back on an insanity defense. Similarly, a burglar-rapist initially claimed his victim had voluntarily dated him and consented to sex; when it was revealed that she spoke not a word of English, he revised his story to say that he had not been in the room with her at all. Of course, in all such cases a jury hears only the final version.

In interviews and news stories, Rothwax has emphasized that he does not regard his book as hewing to any particular ideological line, and in fact he does not go as far in his proposals for reform as many conservative writers on crime. Thus, he does not object in principle to the exclusionary rule, and his hopes of clarifying search-and-seizure doctrine leave him agreeing with the "result" of most current Supreme Court law, if not its "reasoning." His chapter on plea bargaining defends a practice which has been assailed by other analysts of the criminal-justice system.

Much of Rothwax's case boils down to a plea for wider judicial discretion; everything, he says, should have an exception "so far as is reasonable." In one sense, such latitude is long overdue. After the Simpson debacle, almost everyone (except trial lawyers) would be happy if judges took a firmer hand in managing trials: kept questioning on track, cracked down on attempts to manipulate the jury; and so forth.

But Rothwax also favors widening the discretion of judges to interpret the law. For example, instead of the current "mechanical' deadlines for speedy trials, he would give judges permission to throw out unreasonably stale cases and send the rest forward. There are many objections to such a change, among them that it could end by widening the gap between hard-line judges (who would probably tend to throw out fewer cases) and soft-line ones.

Yet, whatever one thinks about any one of Rothwax's proposals, the portrait he paints of the criminal-justice system is a damning one. Many now agree that it is time to rethink the Warren Court legacy: if the publication of Guilty moves us toward the day when we can begin to debate which parts of that legacy should be discarded and which retained, it will have made a lasting contribution.

Is It Really an In-Justice System?

[Originally appeared in the New York Post, Sept. 30, 1996]

For many, it's an article of faith: The justice system is stacked against African-Americans. Last spring, a holdover Cuomo-era state panel made headlines by charging that black defendants get tougher sentences than similarly situated whites; the Pataki administration repudiated its report.

"Study after study verifies that color makes a difference at every stage of a criminal case", according to law professor and O.J. defense lawyer Gerald Uelmen. "Whites do better at getting charges dropped or reduced to lesser offenses." Do they? On Wednesday, the Center for Equal Opportunity will release figures suggesting that black defendants actually do better than whites at beating criminal charges. Moreover, although the numbers are sketchy, big-city juries may be acquitting blacks at a higher rate than whites.

The Washington-based center, best known for its president Linda Chavez, hired analyst Robert Lerner to assemble numbers from a U.S. Justice Dept. database of 56,000 felony cases filed in state courts in the nation's 75 largest cities in May 1992. The cities account for most of the nation's violent crime and an even bigger share of blacks' encounters with the criminal justice system.

Black defendants, it turns out, were convicted at a higher rate than whites in only two of the fourteen federally designated felony categories. These two categories also happened to be the two smallest: felony traffic offenses and a miscellaneous category of crimes not against persons or property. In the other 12 categories, black defendants escaped conviction at a higher rate than whites.

Many of the differences were modest. Thus, 38 percent of blacks charged with robbery beat the rap compared with 35 percent of whites; burglary, 25 percent vs. 21 percent; assault, 49 percent vs. 43 percent; theft, 27 percent vs. 25 percent. Murder cases showed a mere one-point difference (24 percent of blacks not convicted, 23 percent of whites) with equally tiny disparities for public order offenses and miscellaneous property crimes.

Blacks did significantly better than whites at beating drug and weapons charges. On drug trafficking charges, 24 percent were not convicted versus 14 percent of whites; similar margins were seen for other drug offenses (32 percent vs. 23 percent) and weapons charges (32 percent vs. 22 percent). The other side's obvious rejoinder is that blacks are being overcharged with these offenses in the first place. When DAs find the evidence won't hold up, this side maintains, they have to drop the cases.

Admittedly, the center's numbers can't resolve this challenge, but they do cast doubt on the simple idea that prosecutors and judges are adding their own dose of bias against blacks. (Hispanic defendants, incidentally, fared roughly the same as whites overall.) And this still leaves the study's most explosive finding: Whopping disparities in favor of black defendants accused of rape and other crimes against individuals that fall outside the dominant trio of categories -- murder, robbery and assault.

Other crimes against persons, a catch-all category covering charges from manslaughter to extortion to felony child abuse, showed a wide gap: 48 percent of blacks escaped conviction versus 28 percent of whites. And a startling 51 percent of rape charges against blacks ended in non-conviction compared with 25 percent for whites.

These happened to be the same two categories in which juries showed the most extreme tendency to acquit black defendants. Of cases that made it to trial, juries acquitted 69 percent of black defendants in other-crimes-against-persons cases, as against 29 percent of whites. And they acquitted 83 percent -- yes, I thought it was a misprint too, but Lerner says it's the real number -- of blacks charged with rape, compared with just 24 percent of whites.

Before readers fall off their chairs, they should know there are reasons to view these figures with caution. First, though the overall figures on non-convictions draw from a large set of cases, those on jury acquittals reflect small sample sizes: Most cases end in guilty pleas or dismissals, and only a few percent make it to juries. Second, and consistent with the greater randomness you'd expect given small sample sizes, juries did not show a reliable pattern of racial bias or lenience.

In two big categories, robbery and assault, they actually acquitted blacks at a lower rate than whites (12 vs. 18 and 37 vs. 42 percent respectively). And the low acquittal rates for both races on such charges as burglary and drug trafficking (where fewer than 10 percent of either race won acquittals) don't hint at an indiscriminate turn-'em-loose view.

Moreover, the figures don't necessarily point to a greater willingness to excuse black-on-white crime: in most rape and violent-crime charges accuser and defendant are of the same race. Finally, we can't assume that lower acquittal rates are simply better: Facts can truly be doubtful and defenses or mitigating circumstances real, one reason both races may show high acquittal rates on such charges as assault.

All that having been said, you can bet we'd hear plenty about the figures if they'd come out the other way. And the numbers are sure to fuel the debate about whether some inner-city juries are letting defendants off at the cost of ignoring the law and the evidence. While the nationwide acquittal rate is reported at 17 percent, it's said to exceed 30 percent in some big cities and to be approaching 50 percent for black defendants in The Bronx.

Some actually cheer this trend. In a much-quoted Yale Law Journal article, Paul Butler, a law professor at George Washington University, wrote that "when the criminal justice system discriminates against people who are African-American and poor, black jurors are legally and morally justified in acquitting those persons" -- even though African-Americans are typically the chief victims when freed wrongdoers go on to commit more crimes.

Jury acquittals, even if few, also help drive the entire system because plea bargaining takes place in their shadow. It's suggestive that prosecutors appear to be dropping cases beforehand in much the same general pattern in which those cases run into trouble with juries. The Simpson case may be a year old, but the need for a hard look at the performance of our trial system grows only more urgent.