Commentary

The O.J. Simpson Case and the War on Terrorism

This article originally appeared in Reason on October 6, 2003.

Eight years ago this month, much of America came to a standstill to watch the jury deliver a verdict in the O.J. Simpson murder trial. That “trial of the century” and the quick acquittal of Simpson shocked the nation because the evidence against Simpson was described to be “mountainous.”

Today, the Simpson case, oddly enough, is relevant to the war on terrorism and to civil liberties. Since the terrorist attacks of September 11, 2001, many conservative lawyers and pundits have repeatedly raised the specter of the Simpson verdict to argue that America’s civilian criminal justice system is broken — and that consequently people accused of terrorist offenses ought to be tried before military tribunals.

Consider these comments:

  • Fox News Anchor Bill O’Reilly: Military tribunals are “the way to go, because what my concern is, is that, you know, they’ll bring in the Johnnie Cochrans of the world, they’ll muck it all up.”
  • American Enterprise Institute scholar Robert Bork: “There are no Lance Itos or Johnny Cochrans in military tribunals.”
  • National Journal columnist Stuart Taylor: “Unlike military tribunals, the downside to the civilian court system is that “you have to give [the accused] the full panoply of protection that got O.J. Simpson off the hook.”

The problem with these views is that they are rooted in a myth. The source of the myth is not simply Simpson’s acquittal. The myth stems from the wrong-headed conclusion that defense attorney Johnnie Cochran so bedazzled and angered the Simpson jury with stirring rhetoric and emotional racial appeals that the jurors either lost sight of the facts or, worse, acquitted Simpson even though they may have suspected — or known — that he was guilty. In truth, Simpson walked because the government prosecutors — Marcia Clark and Christopher Darden — were incompetent.

How incompetent? Three examples. First, after the nationally televised slow-speed chase, the police recovered a “To Whom It May Concern” note written by Simpson’s own hand after he was charged with the murder, but before he was arrested. Defense attorney Robert Shapiro said he had little doubt that it was a suicide note. But an innocent person would very likely be outraged about being charged with a murder and eager to find the real killer. Prosecutors never presented the note to the jury.

Second, after the chase, the police also recovered several key pieces of incriminating evidence, but the prosecutors failed to use them during the trial. Officers found a fake mustache, a fake goatee, and, most damning, a receipt that showed the items were purchased two weeks before the murders — yet the prosecutors never asked jurors to consider why Simpson would need the elements of a disguise just prior to the murder of his wife and Ron Goldman.

Third, detectives tape-recorded an interview with Simpson just a day after the murders. Simpson, asked about a wound on his hand, admitted that he had cut himself the previous night and that instead of immediately applying a bandage, he dripped blood around his estate. When a detective asked him the cause of the cut, Simpson’s reply — again, on audiotape — was, “I have no idea, man.” Unbelievably, the jury never heard this audiotape or his bizarre admission that he was bleeding all over the place right around the time of his wife’s murder. Instead, prosecutors took weeks to present DNA evidence — and then, in response to the defense claim of a police frame-up, offered up a lame, “Yes, racist cops exist in the LAPD, but this case is not a frame-up.”

These are only a few of the many, many blunders that are recounted in the best book about the case, “Outrage,” by the legendary trial attorney, Vincent Bugliosi, who prosecuted Charles Manson. Bugliosi concludes that, in the Simpson case, a proper prosecution would have very likely secured a conviction.

To deflect attention away from their poor performance, the prosecutors have since embraced the myth that Johnnie Cochran worked some kind of magic that got 12 people to disregard the facts of the case. The myth has become entrenched because it works to the benefit of all of the key players: the defense lawyers, the prosecutors, and the trial judge.

Government often thrives on incompetence. Indeed, conservative pundits regularly point out that when government programs fail, policymakers typically respond by pouring more money into the failed system instead of abolishing programs that do not work. It is thus ironic that many conservatives have been citing the failed prosecution of O.J. Simpson as a reason to expand the prosecutorial powers of the government and to dilute the constitutional rights of people who are accused of crime.

The Simpson case will definitely make the history books, but let’s hope that that history is accurate and that the myths are eventually dispelled. Otherwise, policymakers run the risk of drawing conclusions about the American criminal justice system that are not based upon reality.

Timothy Lynch is director of the Cato Institute’s Project on Criminal Justice and the author of the Cato study “Breaking the Vicious Cycle: Preserving Our Liberties While Fighting Terrorism.”