Television Justice as focus groups, big royalties and
Geraldo
By RAYMOND A. SCHROTH
"There's an old saying in the law, you know, that the
consciousness of innocence makes any man calm. Think and look innocent."
In Theodore Dreiser's An American Tragedy, young Clyde
Griffiths, the quintessential American on the make, has killed his pregnant
working-class girlfriend, who stood in the way of his marrying a beautiful,
wealthy socialite. His politically ambitious lawyers train him in courtroom
demeanor: They drill him for months so he can lie with sincerity and the jury
will love him for it.
Gerry Spence, omnipresent buckskinned defense attorney commentator
on the O.J. Simpson case on "Larry King Live," and Geraldo Rivera, disagrees.
For him, an innocent man looks guilty because he's scared -- unless he can lie
really well.
Dreiser is eerie reading in the Age of O.J. Simpson -- not so much
because Clyde and O.J. have that much in common, although Clyde, too, is a
smooth talker, but because An American Tragedy is an attack on the
American justice system: The law, on both sides, operates not to shine the
light on the truth but to distort reality, to pump up prosecutors' and defense
attorneys' careers.
And sure enough, since the trial the "dream team" have grown
richer on their book royalties and TV contracts. And we can read how O.J.'s
lawyers redecorated his mansion with pictures of black people so he could "look
innocent" to the black jurors when they came through on their inspection
tour.
As in the cases of Pearl Harbor and President Kennedy's
assassination, we all remember where we were and what we were doing when the
O.J. Simpson "not guilty" verdict came in. In various studies, 91 percent of
the viewing public, or 142 million Americans on TV and radio, were tuned to the
verdict.
This was not -- according to L.A. prosecutor and crime writer
Vincent Bugliosi in Outrage: The Five Reasons Why O.J. Simpson Got Away with
Murder -- because the Simpson case had been a great murder mystery.
Simpson's guilt was obvious from the start. Nor was it because the case had any
unusual or "sensational" features -- like sex or a love triangle or a brilliant
defense or prosecution. Rather, it was a standard, as the journalism cliche
goes, "brutal murder."
With one difference: celebrity. O.J. was the kind of person other
"famous" people liked to be around. Though barely literate, he was a polished
charmer. A Jesuit colleague who met O.J. occasionally on the campus of the
University of Southern California told me O.J. quickly learned his name and
greeted him repeatedly as if they were bosom pals. In fact, says Bugliosi, the
real Los Angeles police "conspiracy" had been their tendency to protect him
from the consequences of his wife-beating. Ironically, the televised trial
caught him just as his celebrity glow was fading. Marcia Clark had never heard
of him before his arrest.
I was in a funeral procession for a friend's sister in
Philadelphia. The foreman of the jury was handing over the envelope as our car
approached the grave site. I felt terribly ashamed that I feared missing the
verdict by attending the burial prayers.
That night, back in New Orleans, my cab driver, a black man, was
delighted with the result. O.J. was not guilty, he said; but then, apparently
unaware that he was contradicting his first judgment, he blurted out his other
theory: that O.J. had help. The driver said there was no way one man could
slice up two people that quickly. At Loyola University, the black law students
in the TV lounge had cheered the verdict as if it were a personal victory.
Like the aftermath of the Los Angeles riots and Rodney King
beating, the verdict and the reaction presented America with one of the oddest
and most discouraging episodes in recent social history. With public access to
the same evidence -- TV, newspapers and magazines (though most Americans get
whatever they know about current events from TV) -- whites overwhelmingly
believed Simpson guilty, and blacks, by 80 percent, believed him innocent. As
editorials and columnists said at the time, when two alienated parts of the
population view the same reality so differently, chances of communication and
mutual understanding are slim, and the nation faces a serious social
crisis.
The Arts and Entertainment network's documentary, "American
Justice: How O.J. Won," faults the uneducated jury's inability to understand
the DNA evidence. Bugliosi puts most of the blame for the bad verdict on the
incompetence of the prosecution, but he also scores points against the media.
By turning O.J., an illiterate, narcissistic con man, into a celebrity, whom
millions of people really knew nothing about but imagined to be their friend,
the media created an emotion-based false image that mere facts and logic could
not dislodge.
By hyping O.J.'s defense team, celebrity lawyers with hardly any
murder trial experience, as the "dream team," the media created expectations
that the jury imagined were being fulfilled before their eyes. By featuring an
endless series of talking heads, including obscure law professors with no
murder case experience, TV produced a ton of bad analysis -- "The prosecution
was on the ropes today when blah, blah, blah..." -- which probably leaked back
to the jury.
But Jeffrey Rosen, in a recent analysis of eight books dealing
with race and O.J. Simpson in The New Republic (Dec. 9), sounds the
loudest alarm bell. The verdict was the result of Johnnie Cochran's
manipulation of "critical race theory," according to which juries may disregard
facts, reason and the law in favor of stories -- including paranoid conspiracy
theories -- that empower the black community.
"For these scholars, black lawbreaking is a form of black
self-help, a legitimate way of adjusting the scales of centuries of racial
oppression," Rosen wrote. With this strategy and armed with focus group and
polling information that black women despised Nicole for living out their
fantasies, Cochran aimed his argument at the jury's black women and, in his
summation, challenged them to become the saviors of the black community by
"sending a message" that would punish the police for their brutality.
How do we get out of this terrible predicament?
Partly by retracing our steps to see how we got in. Certainly not
by playing another version of the "race card," adopting the critical race
theory tactics of putting story over fact or law. What could be more racist
than presuming that black jurors cannot absorb logic? Bugliosi suggests that
the prosecution could have won by granting the partial truth of Cochran's
argument (that L. A. police have a past history of brutality) and then
disproving its implication (that they fabricated the case), because the black
community knows from its experience that the police do not fabricate cases.
In September 1995, a few weeks before the Simpson verdict,
Legal Notes, a monthly publication of the Radio and Television News
Directors Association, raised and vigorously answered the objections to cameras
in the courtroom, and Stephen Brill, founder of Court TV, appeared at the RTNDA
convention in New Orleans with a panel of experts to present his scholarly
brief that whatever questions the Simpson trial has raised about the integrity
of our judicial system, the courtroom camera, far from being the source of the
problem, may be part of the solution.
Of course we must distinguish between the camera as a piece of
technology and the camera as the public's eye on the proceedings, in the court
and the media's coverage of the trial.
The camera by itself does not sensationalize, does not force the
lawyers to strut and pose, nor seduce the judge into seeing himself as the star
of a continuing soap opera or national saga. But am I wrong in sensing a great
sigh of relief that the current civil trial of O.J. is not on TV? Televising
the first trial prolonged it and thus exaggerated -- and perhaps distorted --
its societal impact. Now, with the plaintiffs' more compact yet thorough
presentation, we have a better chance of focusing on the truth.
Truth. The defense strategy has been to demonize the victim.
Jeffrey Toobin summarizes their opening statement in the New Yorker:
"Nicole was a tramp. He was a star, she was a groupie. He played it safe, she
took chances. In short, the bitch asked for it." The plaintiff, meanwhile, has
"Fuhrmanized" Simpson, by contrasting his testimony with witnesses, including
his friends, who contradict him. The message: A man who will lie when he says
he never hit his wife will probably be lying when he says he didn't kill
her.
For CNBC-TV talk show host Geraldo Rivera, who, followed by his
colleague Charles Grodin, has devoted virtually every day and night of the past
year to talking about this one issue, the Simpson case is the Dreyfus case in
reverse. Just as 19th century France's unjust conviction of the Jewish army
officer was a national scandal from which France has never recovered, America's
failure to convict a celebrity wife-killer is our national sin.
How can we redeem ourselves? Rivera says by talking about it. By
using the media as our national campfire -- by talking about it until we
understand what we have done.
True, the campfire discussion has had its low points. New York
Daily News columnist E.R. Shipp, a black woman, has called the journalists
covering the civil trial a "lynch mob." A Washington black church known as the
Scripture Temple, which gave O.J. an ovation, called Rivera, a former civil
rights lawyer, a racist. On Grodin's show, Curtis Sliwa, founder of a vigilante
group called the Guardian Angels, urged O.J. to kill himself, and Grodin
agreed.
Grodin has also suggested that his fellow Jews Alan Dershowitz and
Robert Shapiro be given "cold shoulders in the synagogue" for having defended a
guilty man.
I share Bugliosi's and Rivera's outrage that in 1996 an American
man can kill two people and get away with it because he is rich and famous, his
lawyers manipulated racial resentments, and the prosecution didn't think hard
enough.
No civilized person wants O.J. dead. But I want him found guilty.
And I want him to lose all his money.
See who loves him then.
Jesuit Fr. Raymond A. Schroth is assistant dean of Fordham
College.
National Catholic Reporter, December 20,
1996
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