Post No. 51: Finally, Let Me Get this O.J. Stuff out of My System

© 2008, The Institute for Applied Common Sense

Having been fortunate enough to have visited a number of countries in this world, some third world in status, I have often thought that very few of us in this country fully appreciate the luxury of “disposable opinion.”

Once certain basic priorities have been addressed, humans then have the luxury, or time, to think about other, less pressing issues. While explaining why the Taliban was welcome in Afghanistan despite the Western world’s objections, a peasant told a reporter in a recent documentary, “Who cares about women’s rights when you have moved from chaos to order in your daily lives.”

In Post No. 50, entitled, “O.J.’s Opportunity – Lost” (http://theviewfromoutsidemytinywindow.blogspot.com/2008/10/post-no-50-ojs-opportunity-lost.html), I noted that it was sad that Simpson’s life could not have continued on a positive path, uninterrupted by the murder charges. I further noted that an opportunity had been lost to provide inspiration to millions of kids.

In that article, I also mentioned two factors that suggested to me that perhaps Simpson did not commit the murders, at least not personally. In response thereto, I received some pretty intense comments, most of which came to me directly via e-mail. I found it interesting that so many folks continue to have such strong opinions about the first Simpson criminal verdict. (I strongly suspect that the jurors’ personal feelings about the first trial were a significant factor in the most recent verdict, whether rightly or wrongly.)

The intensity of opinions held by supporters and detractors of the two current presidential candidates has often reminded me of the intensity of opinions held by observers of the Simpson verdict.

The Simpson trials and our current presidential election exposed the American public’s feelings about a host of issues. What has astounded me is how rigidly held the beliefs and positions are, on both sides of the fence.

All of this has incredible complexity, and our personal reactions are obviously complicated by our personal experiences.

I honestly do not know whether Simpson did it. It is, of course, possible. I just think that there is a 51% probability that he did not do it. Not 50%, but 51%. There was a lot of tough evidence against him. Since I wasn’t there, and there were no other first party witnesses to the event, I just don’t know with any degree of certainty. However, there are many people in our society who feel strongly about this verdict and “know” one way or the other. I find that fascinating.

Anytime a case is based on circumstantial evidence, and there is a lack of “direct evidence,” the analysis becomes problematic. Here, in the case of the Simpson / Goldman murders, there were no direct witnesses. The only potentially direct evidence was the blood evidence, and a question was raised, either rightly or wrongly, about that evidence.

A circumstantial case is like a suit of clothes and make-up. It can be applied to lots of individuals. Remember the movie Trading Places (http://en.wikipedia.org/wiki/Trading_Places)? There has been some research in connection with widely differing jury verdicts stemming from applying the same set of facts to different people. That’s why trial lawyers work so hard to promote certain images to jurors. The same applies to political handlers and media outlets.

One could take Warren Buffet, transform him into a homeless person in appearance, put him on trial for a crime, and I suspect that he’ll get convicted more than 50% of the time. You could replace him with various other substitute homeless people, Bill Gates, Tyra Banks, Heather Locklear, and get varying results, all with the same evidence.

A prosecutorial filing deputy has to be very careful in deciding to file the initial charges when there is only circumstantial evidence to support the charge. It’s not clear to me that the Simpson criminal charges would have been filed against John Doe husband, without the public history of prior assaults. But I’m not into second guessing people’s motives. The media should also be careful in how it paints and characterizes candidates.

That being said, I fully believe in the system. It’s about procedure and guidelines, and I’m a procedure and process kind of guy.

Can it be made better? Of course. But once you insert the raw human element, it becomes far more complicated and problematic, and therefore the out product becomes inconsistent. That doesn’t mean that the system is faulty.

I think that the biggest problem Simpson had to overcome in his first trial was his prior altercations with his wife. Some believe that if you beat your wife 3 or 4 times previously, you are more pre-disposed to, or will finally, murder her.

It is my understanding that 25% of all violence against women is committed by a “loved one,” or someone with whom the victim is intimately familiar. (Some have even argued that the most effective way to reduce violence against women would be to outlaw the development of interpersonal, heterosexual relationships.) While growing up, I knew many a couple where the husband physically assaulted the wife, on multiple occasions, and they stayed married, kept it undercover, and they live together to this day. Murder never took place.

Quite frankly, it has always been my view that the first time that a woman is hit, she should summon the authorities and immediately leave the relationship so that there is no second event. There is absolutely no excuse for a man to hit a woman; however, I have known many a man to do so, or be very close to doing so, and I’ve had to pull them away, quickly. And yet, I never sensed murderous intent.

When I was in the D.A.’s Office, there was a period when I had to try cases which I disliked. Typical scenario: Drunk man on Friday night beats wife. Kids yell and scream. Someone calls the police. The police arrive, and the husband is belligerent. The assaulted wife and the kids identify the husband as the perpetrator.

The issue then became whether there was a felony or a misdemeanor committed. Generally speaking, the police can arrest if there is sufficient corroborating evidence (other witnesses, or sufficient injury) to support felony assault, or if the assault is made in their presence. The police can not arrest for misdemeanor conduct outside of their presence, unless the wife makes a citizen’s arrest, thus authorizing the police to arrest the husband.

In the typical situation, the husband was arrested and charged with assault on the wife, resisting arrest, and assault on a peace officer. Criminal charges were filed and a trial date was set. However, by the time of the trial, the husband and wife had filed a civil lawsuit, seeking millions, and alleging police brutality and excessive force. Since the criminal trial was held before the civil trial, and could potentially affect the civil trial because of the higher burden of proof at the criminal level, I had to win the criminal trial.

There was intense pressure from the police department. In virtually every instance, by the time that the criminal trial rolled around, the wife had changed her testimony and was prepared to testify on behalf of the husband that he did not do anything to justify summoning the police, and they overreacted. That is why the D.A. changed its policy and decided that the offense was “against the state or society,” and not against the wife. In the late 1970s, the D.A. decided to pursue prosecution of cases, even if the wife dropped the charges leading to the citizen’s arrest.

I think that a significant segment of the population felt that O.J. was guilty because he previously assaulted his wife. In my view, as reprehensible as that prior conduct may have been, the leap from wife assault to murder should not have been made lightly.

We have lots of scientific evidence about brain function to at least partially understand rage. What we don’t generally see is the ability of a first time murderer to simply walk away calmly without a distinct, obvious, physiological reaction.

We have known for years that a certain part of the brain kicks in when a person feels threatened to the point that survival becomes an issue, which explains cannibalism by shipwrecked or downed airplane crews, and parents fighting off attacking bears or sharks. They are, at least temporarily, traumatized knowing that they resorted to that behavior.

A story appeared on the front page of the Los Angeles Times some years ago, about the post traumatic stress suffered by both female and male former members of the Israeli Army. Upon discharge, they found themselves heading to distant lands where they could readily acquire illicit, dangerous drugs to blur their memories of the pain of death.

The body’s natural functional response to death is fairly automatic and obvious. You have to stand over a whacked body to fully appreciate the hard-wired nervous system response, which is built into us all. It’s designed to kick in with respect to attacks on members of our tribe/species. It does not kick it as much in connection with those animals outside of our tribe/species. If the animal coming toward you is charging, then a different part of the brain, dealing with survival, kicks in. Even after that survival experience, you will still see physiological changes. There are auditory, visual, tactile, taste, and olfactory stimuli which can immediately produce violent and fairly long lasting automatic responses in the human body. You usually regurgitate first, the heart races uncontrollably, and you sweat profusely.

Ordering someone to do something is VERY different. There is a buffer. But no one alleged that Simpson hired someone else to commit the murders.

Our brain scan technology and research has improved dramatically over the past 13 years, and we can now map brain activity using computer monitors. Still, very little research is done on violent criminals. We often hear about the cold blooded attitude of teenagers, and how they dismiss their conduct so easily and have truly become sociopaths. However, they were not born that way, and generally they have had years of anti-social support and activity to reach that point.

Thus it is my feeling that it is difficult to find people who can kill a human being for the first time, and then calmly walk away without exhibiting physiological changes. If someone had produced evidence that O.J. had previously killed some folks in years prior, to develop a cold-blooded attitude, I might have felt differently.

This purpose of this article is not to justify Simpson’s conduct, but rather outline the type of analysis which we hope would be employed if we were on trial for such an offense.

All of this brings me to the current political climate. In the jury trial context, I always felt that jurors should dismiss their personal experiences and prejudices, and analyze cases from as pure and non-biased a perspective as possible.

As a general rule, a trial attorney tries to hammer home 3 or 4 major points in advocating on behalf of his client. In a similar vein, there should be 3 or 4 overriding considerations that we take into account in deciding our next leader, not 37 different, dissected, personal characteristics or relationships.

In fact, all jury instructions read by judges to the jurors before they deliberate indicate that they should block out their personal biases, and base their decision entirely on the evidence. It’s a goal, but unfortunately, not a reality.

I never understood why folks inject their personal views in analyzing a situation to reach a decision about something that does not personally affect them. Aren’t we interested in doing what is in the best interests of society at large? That so many people had fixed opinions about the O.J. verdict along gender, racial, age, social status, economic, and other lines has always been troubling to me. How about pure analysis just based on the facts?

Perhaps Johnnie Cochran was correct in imploring the jury not to “rush to judgment.”

We are seeing virtually the same type of personal analysis and dissection, with very little attention to facts and objectivity, occurring in connection with this political campaign, by both sides. Isn’t there a more objective means by which we can analyze and judge the candidates without invoking our personal biases?

A black siding with Simpson in response to the evidence, or a female siding with the deceased, or Republicans siding with Palin in connection with her comments, and Republicans attacking Jeremiah Wright, while Democrats attack John Hagee, all represent the worst in our culture.

And gains us little.

Governor Palin apparently thinks that hammering home that Obama had a relationship with former “domestic terrorist” Bill Ayers will be the equivalent to Simpson’s prior assaults on Nicole Brown.

As silly as this might sound, fans rooting for their home team do not get to determine the winner just by arguing their position and attacking the other team. Some objectivity is built into sporting events so that there is little question as to which team or side has prevailed.

How about a little more intellectual honesty as we walk into the voting booth next month? Remember that reasonable people can differ. Remember that we all want to come out of this stagnancy, and that there is more strength in unity.

© 2008, The Institute for Applied Common Sense