Evidence in Black and White

By now, every Attorney who has ever walked past a courthouse has been asked what do you think about ‘the case’ – which , of course, is Mr. O.J. Simpson’s case.

At this point in my career, I have probably handled more homicide cases than any active practicing lawyer in New York State – which puts me pretty high up on the list in the criminal law trivia game.

There has been some – actually ‘some’ is too mild a word – significant information released to the media and the public which, if it turns up as evidence, and is not refuted or stands unchallenged, might lead a reasonable juror to think hard about whether or not the Defendant committed the crime.

If it turns out to be real evidence! If it stands unchallenged!

In the month of  June, some years ago, on a trip to Italy, I tuned into the CNN to follow the progress of a certain white Bronco leading a phalanx of LAPD black and whites along a California highway. What lives of dreary desperation our society must lead to have this dreadful matter the focus of public attention since then.

After the Bronco incident, several interesting pieces of information – I hesitate to call it evidence as yet – arose. For instance, the limousine chauffeur who was to take Mr. Simpson to an airport allegedly stood at one entrance of Mr. Simpson’s home for a considerable period of time, ringing the bell. No one answers. Thinking he might be at the wrong entrance, the chauffeur drives around to another entrance. From the gate, the chauffeur sees an unidentified dark figure walking toward the house.

When asked about the Bronco later found parked askew near the first entrance, the chauffeur asks, “what Bronco?” Does that imply that the Bronco just arrived? That it had not been driven up until moments before the dark figure appeared on the lawn? The jury will have to parse that question.

Then there is blood on the Bronco door. Perhaps it is Mr. Simpson’s own blood. Perhaps someone else’s. How often does one get blood – his or her own – on his or her car? Can it be explained? Why not. But the juxtaposition of unusual events is the stuff about which juries deliberate.

What if there is actual DNA evidence of Mrs. Simpson’s blood on the floor rugs of the Bronco. That evidence will be hard for a jury to chew on comfortably. How often to you have your spouse’s blood on your feet so as to get it on the car carpets? – particularly when juxtaposed with the circumstances of Mrs. Simpons’s recent blood letting. Does the fact that the evidence was submitted late to scientific testing make it any the less real or any the less damaging?

And then there’s a hat found at the scene of carnage, with strands of hair inside that match Mr. Simpson’s. Sure, its only one little fact which, standing alone, means nothing. But the juxtapositions, the juxtapositions of all the other facts may be coming hard for a jury to digest.

And now, for just one moment, let’s go back to that Bronco.  How will the jury react to Mr. Simpson’s affect, his response, reaction, to the notice that his wife had practically had her head cut off in a savage attack. Better yet, how will the jury react to Mr. Simpson’s re-action to the news that he was wanted on suspicion of the homicide. Slipping surreptitiously out a window, with passport and cash, taking a ride in a car might be viewed by some as a not quite the appropriate attitude of one  bereaved.

But all these things are for the jury.

The poignant aspect of all the questions that people are asking lawyers is that no one seems to question the weight of the evidence too much. Not really. The real inquiry is directed to the intelligence and reasonableness of the Black community. And the reason for the inquiry is given as: the Blacks view this case as a racial case. They’ll never convict him.

It seems the people making the inquiries have already evaluated the revealed-to-date evidence and gone on to the next question. That is, will the prosecution be able to convict Mr. Simpson with Blacks on the jury, notwithstanding the evidence.

Even 61% of surveyed lawyers indicated that Mr. Simpson could not be convicted – not based on the evidence, but based on the racist suspicion, or fear, that Black people are not decent, law abiding, intelligent, objective enough to convict Mr. Simpson – EVEN IF THE EVIDENCE IS THERE.

Those people who have such opinions are apparently unaware that in urban centers, like New York, Los Angeles, Detroit, minority jurors, day in and day out, convict members of their own race.  If the evidence is there, they convict. We aren’t seeing hung juries in all, or even a significant number, of cases in which Black jurors deliberate evidence concerning Black defendants.

It might be that there are many people, Black and white, who would be very unhappy, reluctant to convict Mr. Simpson. But that doesn’t mean they won’t do it if the evidence is there. It’s done every working day of the year.

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