Week Seven, Part 1 - Ethics: Juice on the Loose

On Tuesday, Professor Rice dismisses Torts fifteen minutes early so we can watch the verdict in the O.J. Simpson case. After 133 days of televised courtroom testimony (and over 15 months since the murders of Nicole Brown Simpson and Ronald Goldman), the jury will speak.

On the elevator ride down to the student lounge, I overhear Professor Robert Blakey tell a colleague that a short period of deliberation – less than four hours – means O.J. will be acquitted.

No way! To me, the physical evidence is overwhelming.

The basement lounge is a zoo with 150 students crowded around a wall-mounted TV in the corner. I’m squished behind a student whose t-shirt reads, “At Notre Dame, every day is Saturday.”

Yeah, right.

All of us grow silent as the foreperson reads the verdict. "In the matter of the people of the State of California versus Orenthal James Simpson, case number BA097211. We the jury, in the above-entitled action, find the defendant, Orenthal James Simpson, not guilty of the crime of murder.”

I hear a few hand claps far away, but most students are silent. Some turn away, others shake their heads.

“Not guilty!?” I say to the 3L beside me.

He nods. “That’s an in-your-face verdict! They’re saying, ‘We’re outta here.’”

Professor Blakey was right, I think.

Later that afternoon, in a make-up session for Civpro, Professor Bauer starts class with “Now that the trial's over, some people are going to actually have a life.”

I assume he’s not referring to law students.

That’s all Bauer says on the subject, preferring to launch the issue of whether the International Shoe test of "fair play and substantive justice" applies to assertions of quasi in rem jurisdiction.

The last class of the day is Legal Ethics with Dean David Link. Finally -- a law prof willing to discuss the case!

“There were clearly some ethical questions in the Simpson trial,” he says in a deep voice. “Whatever you think about the outcome, the system broke down in a number of parts.”

His first criticism is toward the assistant DA’s from Los Angeles County. “The case was over-prosecuted. Marcia Clark and Chris Darden threw so much at the jury that it become mush. They should’ve had a simple theory and stuck to it.”

Judge Lance Ito gets roasted next. “I don't think he lost control. He never had control!” Link says judges are wise to worry about interfering too much with a criminal case. He tells a vignette about a judge who was never overturned. When asked his secret, the judge said, “It’s an eight-word philosophy I keep taped to the rail in front of me: ‘Keep your big mouth shut you little shit.’"

We laugh.

Link also disapproves of the Dream Team of criminal attorneys: Robert Shapiro, F. Lee Bailey, Johnnie Cochran, and Barry Scheck. “They over-defended the case,” Link says. “They tried to prove O.J. innocent, which was beyond their role.”

A student asks about the Cochran’s strategy in closing arguments of “playing the race card,” comparing Detective Mark Fuhrman to Adolph Hitler.

“Here, bringing race into the case was not unethical,” Link says. “Since the prosecution’s case was based on circumstantial evidence, the defense had to offer an alternate theory. They said the police framed O.J. To support that, they had to show some motivation – racism.”

Link pauses as if to collect his thoughts. “Now for a defense attorney to make a statement of ‘you can decide on race and ignore the evidence’ isn’t right. Johnnie Cochran – who I’ve met personally – became emotionally attached to the case it seems."

“What do you think about cameras in the courtroom?” a male student in the back corner asks.

“I’m not an advocate of cameras in courtroom,” Link says. “And I’ve testified before Congress on the subject. A case needs to be non-dramatic, perhaps simply videotaped.”

Class is almost over.

“And what’s the major issue to come out of this trial?” Link asks, using the Socratic method on himself. “Money makes a difference! I have a meeting with the president of the ABA about it this month. It seems you can buy your way out of trouble by paying for tremendous, legal talent. If so, there’s a systemic problem with justice.”

Link pauses. “Finally, remember, the trial was not about whether O.J. was guilty. It was whether the government proved it. Courts do not find people innocent.”

While Link closes his notes, a girl on the front row raises her hand. “Do you think O.J. did it?”

"I presume he was the most likely to have done it," Link says.

"That's a cop-out."

"No," replies Link, "that's a waffle. A cop-out would be, ‘I don't want to say.'"

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