To the Editor:
Christopher Caldwell [“Johnnie Cochran’s Secret,” March] is partially right. O.J. Simpson is almost certainly guilty, and race was a central consideration in his criminal trial. However, Mr. Caldwell is wrong in asserting that it was the defense which raised the race issue.
In a normal homicide prosecution, the case would have been filed and prosecuted in the predominantly white West District in Santa Monica, the same district where the Simpson civil case was heard. It was the prosecution which first made race an issue when it decided, at the very outset of the case and for reasons entirely unrelated to winning the trial, to prosecute Simpson in the predominantly black Central District. This decision was made with racial politics in mind: in the post-Rodney King era, the prosecution did not want a white jury. Thus, it was not the defense but the prosecution which guaranteed that the jury would, as Mr. Caldwell says, “wind up virtually all-poor and all-black.”
To bring up another point: I am a bit tired of hearing how the prosecution has fewer rights than the defense in jury selection. Both sides get the same number of peremptory challenges. The rule established in People v. Wheeler applies to both the defense and the prosecution (see Georgia v. McCollum [1992] and People v. Pagel [1986]).
The remedy for a Wheeler violation (purging a racial group from the jury) is to call a new panel and pick a new jury. If the prosecution could have shown such a violation by the defense, it could also have made the appropriate motion and asked for a new panel. If the prosecution was racially handicapped in jury selection, it was as a direct consequence of its own decision to prosecute in a heavily black district.
Finally, Mr. Caldwell does Barry Scheck a disservice. He claims that Scheck and Peter Neufeld, the other so-called “DNA lawyer” on the Simpson defense team,
constructed a frame-up they knew did not occur, implied racism where they knew it did not exist, and . . . undermined confidence in a branch of forensic science whose trustworthiness they had spent their careers establishing.
And he then quotes Barry Scheck’s closing words to the jury:
You must distrust [DNA] evidence. . . . You cannot render a verdict in this case beyond a reasonable doubt on this kind of evidence. Because if you do, no one is safe, no one.
In fact, Scheck exhaustively and effectively attacked the deficiencies in the physical evidence and argued honorably. I myself have used, to good effect, words almost identical to the ones Mr. Caldwell quotes, and I have done so representing white defendants in front of white juries.
Michael Lukehart
Kern County Public Defender
Bakersfield, California
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To the Editor:
When the verdict in the O.J. Simpson criminal trial was returned, it hit the American public (white America, anyway) like a brick on the head. And in that moment of jaw-dropping disbelief it was crystal clear what had happened: an overwhelmingly black jury, sold on fanciful theories of racial conspiracy and ignoring incontrovertible evidence of guilt, acquitted a murderer.
As horrified and angered as I was by the verdict, I felt that at least this event would finally put into stark relief the undeniably different worlds in which much of black and white society live and that those differences could finally be openly and seriously discussed. But no sooner had the verdict been returned than the popular media began to put a sanitized, politically-correct spin on why Simpson got away with murder. In the media’s self-proclaimed mission to “heal the racial divide,” a new culprit for the acquittal had to be found. With the help of legal vulgarians like Leslie Abramson and other “experts,” we soon learned that it was the failure of the prosecution team that was to blame.
But all this is so much Monday-morning quarter-backing. The prosecution team made mistakes, no doubt (not least of which was caving in to pressure and not taking the case to Simi Valley). But prosecuting a case, as I know from a career as both a prosecutor and defense attorney, is a lot like what psychologists say about parenting: you don’t have to be perfect, just good enough. And the prosecution team was good enough; it got mountains of damning evidence before the jury, including DNA evidence which, standing alone, established guilt beyond any doubt.
But as Christopher Caldwell so aptly points out in his article, once the issue of race entered the courtroom and was accepted as legitimate by all, the verdict was sealed. And no amount of prosecutorial wizardry could have changed that.
Evan J. Winer
Chicago, Illinois
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Christopher Caldwell writes:
Except for his assertion that the prosecution could have, or should have, obtained a change of venue to Simi Valley, Evan J. Winer’s letter strikes me as right in every particular. Michael Lukehart, on the other hand, asserts that I was wrong in saying that it was the defense which brought race into the Simpson trial.
I agree with both Messrs. Winer and Lukehart that Simpson should have been tried in Santa Monica (where the crime was committed) rather than in downtown Los Angeles (where he was in fact tried). And there is little doubt that Los Angeles district attorney Gil Garcetti benefited from the perception that he was willing—even keen—to have the case tried in front of a black jury. Garcetti in fact won reelection last fall by a razor-thin margin, thanks to an overwhelming majority of the black vote. But in The Run of His Life, Jeffrey Toobin holds that there were insurmountable logistical obstacles to holding the trial in Santa Monica. Since Toobin examined the specific matter of venue selection more closely than any other journalist at the Simpson trial, I consider him authoritative on the matter.
I did not hold that People v. Wheeler gives more rights to the defense than to the prosecution, as Mr. Lukehart claims. It is indisputable, however, that Wheeler has in practice been more useful to those who would stack a jury with blacks than to those who would stack a jury with whites.
As for Barry Scheck’s closing statement, it is not the words themselves that are objectionable, but the fact that they bear no relation to the evidence.
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