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May 9, 2011
An excerpt from the book Spinning the Law: Trying Cases in the Court of Public Opinion by Kendall Coffey.
The White Bronco
People love a good car chase. Or at least television news producers think we do. That's why we're treated to endless coverage of the police pursuing one felon or another on the streets – or, more likely, highways – of some major city, most often Los Angeles or Miami. In fact, Bob Tur, the "dean of LA's media helicopter journalists," pioneered the form. By June 17, 1994, he had already broadcast 128 freeway pursuits for KCBS. But no one had ever seen anything like what unfolded in the late afternoon and early evening hours of that day when a white Ford Bronco containing O.J. Simpson and his friend Al Cowlings led a phalanx of 25 police cars on a bizarre low speed chase on the freeways of Southern California.1
Simpson, who was wanted for the murders of his ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman, was either trying to escape justice or suicidal, or both; during the chase, he was holding a gun to his head, as Cowlings told police by cell phone. At first, Tur had exclusive footage of the Bronco's progress, but soon his helicopter was joined by six others. When the highway passed through black neighborhoods, people lined the overpasses, cheering, "Go, O.J.!" By the time the pursuit ended safely back in the driveway of Simpson's Brentwood mansion, where the former NFL great surrendered meekly to police, some 95 million Americans had watched all or part of the chase. Networks carried live coverage. NBC even broke into its telecast of Game Five of the NBA Finals.2 It was, in some ways, a fitting media beginning of what became known as "the trial of the century."
From that day forward, until a jury declared Simpson not guilty on October 3, 1995, America and the world could not get enough of the O.J. Simpson murder trial. After Judge Lance Ito allowed television cameras into his Courtroom, the proceedings became a kind of daily soap opera, visible anywhere a television was on-in homes, airports, and health clubs. Reportedly, the first question Russian President Boris Yeltsin asked US President Bill Clinton when he arrived for a summit was, "Do you think O.J. did it?"3 The public became so transfixed by O.J.'s courtroom drama, according to one estimate, that U.S. industry lost a reported $25 billion in productivity as employees set work aside to follow the trial.4
The Media “Tsunami”
While defense and prosecution worked the press like gamblers work the slots, the media inserted itself into the case to an unprecedented degree. The O.J. trial marked a sea change in the relationship between the press and the courts because its spectacular media appeal coincided with the arrival of advances in television and Internet technology that spawned a multiplicity of new media outlets. In the past, traditional news outlets, like local television stations, broadcast networks, and newspapers and magazines, served mega trials to a ravenous public. But in the O.J. trial, the attorneys, police, parties, and court personnel also came under intense pressure from 24-hour cable news channels, tabloid newspapers and television shows, as well as the speed and ubiquity of the World Wide Web. None of them, not one, was fully prepared for the ferocity of media probing. "It was like being smacked by a tsunami," said Jerrianne Hayslett, media coordinator for the L.A. Superior Court, who worked closely with Judge Ito during the Simpson trial.69
As William E. Loges, a professor at Oregon State University and coauthor of Free Press vs. Free Trials, told an interviewer, celebrity trials foster a "breathless" kind of coverage. "The media feel they can get away with more now than before," Loges said, "and the competition is frenzied. The distinction between legitimate news coverage and tabloid journalism got blurred during the O.J. trial because outlets like the National Enquirer were breaking stories. The New York Times, trying to double-check sources and facts, found itself getting burned."70
In a way, the media can hardly be faulted for its frenzied efforts to satisfy the public's interest in the Simpson murder case – it paid off handsomely. As Broadcasting & Cable magazine reported in 1995, ratings nearly doubled for news and talk radio stations broadcasting gavel-to-gavel coverage of the trial. Arbitron ratings for all-news KNX (AM) rose from a 2.2 share to a 3.7. And that's just one example of the nationwide groundswell.71
Witness Stories for Sale
In addition to covering events, reporters can also make them happen, as Jeffrey Toobin did when he broke the story of the defense lawyers' plan to portray Detective Mark Fuhrman as a corrupt racist bent on framing their innocent client.
Media organizations can weaken or strengthen the teams on the field in other ways. Prosecutors are understandably reluctant to use witnesses who receive any form of a payoff for their version of events. Witness bribing is, of course, despicable and indictable. But some of the same odor clings to witnesses who have sold their stories to tabloid newspapers and television shows before taking the stand.
In the eyes of the prosecution, several potentially important witnesses disqualified themselves in this way. Shortly before 11 p.m. on the night of the murders, a young woman named Jill Shively narrowly avoided colliding with a Ford Bronco not far from Nicole's house. Not only did Shively recognize O.J. Simpson as the driver of the other car, she also memorized the license plate number. Despite being warned by prosecutors to give no interviews until after she had testified, Shively immediately sold her story to Hard Copy for five thousand dollars, plus another $25,000 for letting the Star, a supermarket tabloid, use the transcript of the interview. Outraged, Clark chose not to use Shively's testimony and directed the grand jury to disregard it.72
But Clark would encounter tabloid-tainted testimony again, and soon. The first witness called in the preliminary hearing was Allen Wattenberg, who ran Ross Cutlery, a knife store in downtown Los Angeles. Wattenberg testified that Simpson had bought a fifteen-inch knife on May 3, 1994, which the prosecution obviously intended to portray as the missing murder weapon. But Wattenberg also blithely testified that he planned to split a $12,500 jackpot with his brother and an employee, Jose Camacho, who had been paid for an interview by the National Enquirer. Although all three store workers corroborated the story of O.J.'s knife purchase, prosecutors eventually decided against using their testimony.73
Nicole's friend Faye Resnick became another casualty of intrusive media attention; in this case it was book publishing. Like Nicole, Resnick was an attractive, athletic woman in her mid thirties, recently divorced from a rich husband. She led a hard-partying life, and at the time of the murders was in a tony drug rehab facility. She was well acquainted with O.J. Simpson, claiming she had mediated between Simpson and Nicole in their turbulent reconciliation attempts. She should have been an excellent witness for Clark, who sought to paint Simpson as a rage-prone wife beater whose violence escalated into murder. Instead, Resnick wrote a quickie book, Nicole Brown Simpson: The Private Diary of a Life Interrupted, co written by Mike Walker, a reporter for the National Enquirer. In it she asserted her conviction that O.J. was guilty. She reported, for example, a conversation with Simpson in which he said, "I can't take this, Faye. I can't take this. I mean it. I'll kill that bitch."74
Not only did this book disqualify Resnick as a witness for prosecution purposes, it badly spooked Judge Ito. Instead of doing the sensible thing – ignoring the book and letting the furor run its course outside the courtroom – Judge Ito suspended jury selection for 48 hours, telling the jury pool "the publication of a book [has] caused the court great concerns about the ability of Simpson to get a fair trial."75 He then wrote letters to the television networks and news channels asking them to cancel interviews with Resnick. Only one, CNN, agreed. Judge Ito's overreaction was the biggest favor he could have done for Resnick. The extensive coverage of his actions incited so much public curiosity about Resnick's book that its sales took off, and it promptly became a number one New York Times bestseller.
The Trial of O.J. Simpson
O.J. Simpson entered a not guilty plea on June 22, 1994, 12 days after Nicole Brown Simpson and Ronald Goldman were murdered. The trial began on January 24, 1995, and lasted for nine months. It was the longest trial in California history. His defense cost an estimated $6 million, while the state spent $9 million prosecuting him, $2.6 million of which went to feed, house, and entertain the sequestered jury.76
The defense had argued relentlessly, inside and outside the courtroom, that Simpson had been framed by a shadowy and indistinct police conspiracy spearheaded by the racist cop Mark Fuhrman. The prosecution tried hard to protect Fuhrman, who denied on the stand he had uttered "the N-word" in the preceding 10 years. But that protection collapsed when the defense produced 12 audiotapes of interviews Fuhrman had conducted with an aspiring screenwriter in 1985. In the tapes, Fuhrman can be heard using the offending word – and worse. This disclosure gave Johnnie Cochran opportunity to demonstrate his skill at manipulating public opinion. It may have been the turning point in the trial.77
The trial ground to a halt for a week as the defense fought to get the tapes entered as evidence and the prosecution fought to exclude them. Cochran, who "assumed jurors were receiving information about news coverage despite sequestration," knew that he needed "a public airing of the tapes. In other words, he needed their contents leaked to the press."78 With the tapes ordered "under seal" by Judge Ito until the matter of their admissibility could be resolved, defense lawyers could not directly leak them to the press without risking contempt. So another leakster was needed. Larry Schiller, Simpson's advisor and the writer behind O.J.'s jailhouse bestseller, I Want to Tell You, reportedly leaked the tapes.79 But getting the tapes to the press was not enough for Cochran. Taking the art of litigating in the court of public opinion to a new level, Cochran organized a news conference with leading black clergymen and civil rights groups demanding the release of the tapes. Ominous references were made to the events of 1992 – a veiled threat of more rioting if the tapes were not released.80
Judge Ito decided to allow the defense to play whatever portions of the tapes it wanted in open court, but with the jury absent. Present, of course, was the press, which picked up the narrative of Fuhrman's racism and ran with it.81 But when Judge Ito ruled only two brief excerpts could be presented to the jury, Cochran held a news conference that accused Ito of participating in a "cover-up," calling the ruling "perhaps one of the cruelest, unfairest decisions ever rendered in a criminal court." Judge Ito held to his decision, but he became even more cowed by Cochran. When Cochran refused to present evidence the next day in protest of the ruling, Judge Ito called an early Labor Day recess.82
On October 2, after only hours of deliberation, Orenthal James Simpson was acquitted of the murders. Simpson is said to be the most famous person tried for murder in American history. And so, inevitably, there was plenty of drama during the actual court case: Barry Scheck's brilliant obfuscation of DNA evidence; the Fuhrman flap; Christopher Darden's boneheaded decision to have Simpson try on the bloody glove; the seemingly damning procedural errors by police and criminalists; and Cochran's melodramatic closing argument ("If it doesn't fit, you must acquit"). And yet, in retrospect, observers typically cite two main factors that produced the acquittal verdict: a combination of prosecutorial missteps and the ability of Shapiro and Cochran to control the public narrative of the crime throughout the entire ordeal. Although the two lawyers came to dislike one another, they proved equally adept at public relations.
The conventional wisdom was that the dream team "out-lawyered" the prosecution, thus securing acquittal for an obviously guilty man. There are some who dissent from the majority opinion. In Vincent Bugliosi's Outrage, he argues strenuously that the defense, with the exception of Scheck, was "spectacularly ordinary throughout the trial."83 O.J. went free, Bugliosi asserts, mostly because the prosecution was worse. Bugliosi claims that cross-examination techniques were often poor and preparation was inadequate at times, including a failure to interview opposition witnesses prior to trial. But because the Simpson lawyers were lionized as "brilliant" by a bedazzled press, jurors "likely" perceived their performance as better than it actually was. "If they were the dream team, they must be scoring a lot of points," Bugliosi writes, "and this all helps add up to reasonable doubt."84
Many will dispute Bugliosi's opinion, since the public held an exalted view of the dream team's exploits. One dream teamer whom the critics did not attack was Alan Dershowitz, whose explanation for the verdict emphasized the fact that "we kept O.J. off the witness stand and put the LAPD on trial."85 Even skeptics agree that O.J.'s lawyers succeeded with a reverse form of police brutality. They beat up the LAPD and wrung a not guilty verdict from a largely black jury with imbedded feelings and even perhaps bad experiences with a controversial police department. All the black jurors later denied race had played a part in their deliberations.86 And yet juror Gina Rosburough admitted, "I believed from the beginning he was innocent."87 Carrie Bass, immediately after the jury delivered its verdict, purportedly said to her fellow jurors, "We have to protect our own."88
When the trial was over, prosecutors appeared exhausted, dispirited, and, in the eyes of many, discredited. Actually, though, almost all the principal players in this biggest of all courtroom dramas benefited handsomely from being associated with it. Simpson, of course, lost his reputation and his lucrative careers as an actor and pitchman. But he avoided a lengthy prison sentence. Despite the $6 million he paid to his lawyers, he was not exactly poor. His NFL pension, about $25,000 a month, was protected by California law from the wrongful death judgment resulting from the 1997 civil trial brought by the Goldman and Brown families. But O.J.'s luck ran out in Las Vegas. In January 2008, Simpson was convicted of armed robbery at a Las Vegas memorabilia show (Simpson claimed he was trying to retrieve property that belonged to him). He was sentenced to 33 years in prison. He will be eligible for parole in nine years. Lawyers have appealed his prison term. And yet, even if he serves the full sentence for his souvenir raid, his acquittal for murder won him freedom and a lavish lifestyle for 12 years after the murders of Nicole Brown Simpson and Ronald Goldman.
Many key figures involved in the O.J. Simpson case wrote books. Some, like Marcia Clark, Johnnie Cochran, Robert Shapiro, and Christopher Darden, received multimillion-dollar advances and had bestsellers. Dershowitz wrote a book about it (in addition to his many other books); so did several jurors; and so, interestingly enough, did Mark Fuhrman, who, after telling his side of the story with Murder in Brentwood, reinvented himself as a successful true-crime writer.
About the only player in the O.J. drama who has not cashed in is Judge Lance Ito. Though he has continued to serve as a Los Angeles superior court judge, he has written no book, has granted no interviews, and has consistently declined offers of promotion. As Jerrianne Hayslett observes in her book, Anatomy of a Trial, "When Ito got the Simpson trial, he was considered one of the Los Angeles court's brightest rising judicial stars, destined for advancement to either a state appellate or federal judgeship. By the time the trial was over, his judicial reputation was tattered and his health battered."89
Just as lawyers in subsequent high-profile cases noted the many benefits to winners and losers alike, future judges would not forget the painful ordeal of the Honorable Lance Ito.
1. Entertainment Wt?ekry, "Encore: 0.]. Simpson Runs," June 12, 1999.
2. Jeffrey Toobin, The Run of His Life: The People v. 0.]. Simpson (New York: Random House, 1996), p. 106.
3. Douglas 0. Linder, "The Trial of Orenthal James Simpson," University of Missouri at Kansas City School of Law, 2000, http://www.law.umkc.edu/ faculty/projects / ftrials /ftrials.htm.
4. Thomas L. Jones, "The 0.]. Simpson Murder Trial: Prologue," TruTV Crime Library: Notorious Murders, http://www.trutv.com/library/crim /notorious _murders/famous/simpson/index_l.html.
69. Pat Morrison, 'Jerrianne Hayslett: Trials and Errors," Los Angeles Times, October 3, 2009.
70. Charles Montaldo, "Free Press VI. Free Trials: Book Challenges Influence on Trial Verdicts," review of Free Press VI. Fair Trials: Examining Publicity's Role in Trial Outcomes, by Jon Bruschke, About.com: Crime/Punishment, http://crime.about.com/od/issues/a/blosu041226_2.htm.
71. Donna Petrozzello, "0.]. Doubles Ratings for News/Talk Stations," Broadcast & Cable Magazine, May 1, 1995, p. 33.
72. Toobin, Run of His Life, pp. 126-27. 73. Ibid., pp. 138-40. 74. Ibid., p. 201. 75. Ibid., p. 202. 76. Morrison, "Jerrianne Hayslett."
77. Jones, "0.]. Simpson Murder Trial: Prologue."
78. Geis and Biennen, Crimes of the Century, p. 180.
79. Toobin, Run of His Life, pp. 398-400.
80. Ibid., p. 400.
81. David Margolick, "Racial Epithets by Detective Fill Simpson Court- room," New York Times, August 30,1995, A14.
82. Toobin, Run of His Life, p. 407.
83. Bugliosi, Outrage, p. 43.
84. Ibid., p. 47.
85. Dershowitz, interview.
86. Geis and Bienen, Crimes of the Century, pp. 187-88.
87. Toobin, Run of His Life, p. 436.
88. Ibid., p. 431.
89. Hayslett, Anatomy of a Trial, p. 3.
The above is an excerpt from the book Spinning the Law: Trying Cases in the Court of Public Opinion by Kendall Coffey. The above excerpt is a digitally scanned reproduction of text from print. Although this excerpt has been proofread, occasional errors may appear due to the scanning process. Please refer to the finished book for accuracy.
Copyright © 2011 Kendall Coffey, author of Spinning the Law: Trying Cases in the Court of Public Opinion
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