When I was first asked to join the O.J. defense team, I declined, because I had appeared on television and opined that he was probably guilty. Bob Shapiro responded by saying, “At this time, everyone thinks he’s guilty, but we have to look at all the evidence.” He also reminded me that O.J. was facing the death penalty and that I generally don’t decline capital cases. With these considerations in mind, I accepted the role as legal and constitutional consultant to the defense team and designated appellate lawyer in the event he was convicted. O.J. referred to me as his “God-forbid lawyer.”
Most of my work on the case took place in my Harvard Law School office with the help of student researchers. But I did appear in court on several occasions arguing important motions, including one immediately following the glove fiasco.
When prosecutor Chris Darden asked O.J. to try on the gloves, I was sitting just a few feet away from O.J. and the jurors. It was obvious that the gloves were too small — and O.J. went right up to the jury box, tugged on them and said, “It’s too small.” I saw the jury’s reaction — and I knew that the case had taken a turn in O.J.’s favor.
I also knew that California law allowed prosecutor Darden to demand that O.J. try on the gloves outside the presence of the jury and then decide whether he would allow the jury to see O.J. putting them on. Darden was an arrogant prosecutor who made the strategic blunder of not taking advantage of California law. The result was the famous line in the closing argument: “If it doesn’t fit, you must acquit.”
The glove episode was important in another respect. There was a debate going on within the defense team about whether O.J. should testify. F. Lee Bailey wanted him to. I was strongly opposed. After the glove episode, I was able to help persuade O.J. that he had already gotten all the benefits of talking to the jury without incurring the risks of cross examination. He agreed and did not testify at the criminal trial. He did testify at the civil case — and that contributed to the multimillion-dollar verdict against him.
My other major involvement involved a sock that was found near O.J.’s bed. It contained the blood of both O.J. and an alleged victim. From the prosecution’s point of view, it was too good to be true. And it wasn’t true. We were able to prove that a police officer had improperly taken home a vial of O.J.’s blood and that of his alleged victim. He then poured the blood on the sock while it was lying flat on the table. What the corrupt police officer didn’t realize was that the blood contained a tell-tale chemical called EDTA that is not found in the human body but that is placed in test tubes to prevent the blood from coagulating. Splatter evidence also proved that the blood was poured on the sock while it was lying flat. Jurors concluded that this piece of evidence was fabricated. This created distrust about the prosecution’s entire case, resulting in a reasonable doubt.
Following the acquittal I advised O.J. to keep a low profile and to disappear from public view. I had given Claus von Bülow the same advice after I helped him obtain an acquittal. Von Bülow followed my advice. Simpson did not. The very evening after the acquittal, he called into Larry King’s show. He subsequently made other media appearances. Finally, and ill-advisedly, he then wrote a book entitled If I Did It. The public was outraged at him.
Simpson was subsequently convicted of kidnapping and robbery in his effort to retrieve memorabilia he claims were stolen from him. The excessive sentence he received was clearly payback for what many believed was an unjust acquittal in the murder case.
All in all, my involvement in the O.J. Simpson case was a mixed blessing. I did help expose police corruption and prosecutorial incompetence. The case also revealed the deep racial divide that existed, and still exists, in Los Angeles and many other parts of the country. Race did matter in the case. The nine urban African-American jurors seemed more receptive to evidence of police misconduct than suburban white jurors might have been. The case was tried in the aftermath of the Rodney King beatings. Defense attorneys cannot ignore the issue of race when representing an African-American defendant. As a result of my involvement in the O.J. Simpson case, I received threats, insults and recriminations.
Many people ask me how I could represent somebody they believe were so obviously guilty. I replied that, under our constitution, every defendant is entitled zealous representation, but many Americans don’t seem to understand that important principle. They like lawyers who represent people of whom they themselves approve. But they resent lawyers who represent individuals they despise. The reality is that the vast majority of Americans charged with serious crimes are in fact guilty. Thank goodness for that. Would anybody want to live in a country where the majority of people charged with serious crimes were innocent? That might be Iran, Russia and North Korea, but not the United States.
