Post on 24-Mar-2020
Attorney and Legal Journalist Debate Criminal Trial Issues
Resolved: The O. J. Simpson and Casey Anthony Acquittals Were
The Best Possible Outcomes
O.J. Simpson
Legal journalist Keith Long investigated the O. J. Simpson acquittal in
1995 and now offers a surprising, new perspective in a speech made to
criminal defense lawyers in May this year. Mr. Long believes an
objective assessment compels a conclusion that the jury made the correct
decision to acquit the former football star. A prominent attorney objects
to that perspective and offers challenging arguments to Mr. Long’s
thesis.
Background For The O. J. Simpson Trial
It is often overlooked that in Los Angeles between 1992 and 1996, there
was an environment of racial tensions which were later confirmed by the
Department of Justice to be the result of racist police and judicial system
policies and practices in LA’s African American community.
In 1992 Rodney King was beaten by white LA police officers. The
original judge assigned to their trial was replaced for bias against the
victim, Rodney King. When the white jury acquitted these four officers,
Los Angeles erupted with the worst riots in its history. Within months,
congress passed a law giving the Department of Justice authority to
force police departments to reform their racist patterns or practices in
African American communities.
Only months later and in that environment, O. J. Simpson was charged
by Los Angeles police for murder. The lead detective, Mark Fuhrman,
was convicted of perjury in that trial. When asked if he planted evidence
to falsely convict O. J. Simpson, Fuhrman took the Fifth Amendment,
and refused to answer.
Shortly after the football star’s acquittal, the US Department of Justice
enforced a consent decree against the LA police for patterns and
practices of racial discrimination in the Los Angeles African American
community. Current NYC Police Commissioner, Bill Bratton, was
brought in as LA Police Commissioner. He has been universally
recognized with reforming the racist police practices of LA’s police.
Legal journalist, Keith Long, argues that the jury’s acquittal of O. J. was
in response to those racist police practices against African Americans
like Simpson. He argues that Simpson’s acquittal focused national
attention on race problems in LA’s police and that attention directly led
to reforms initiated by Bill Bratton in both the LA police and LA County
justice system.
Casey Anthony
Journalist, Keith Long, has researched the Casey Anthony case
exclusively from trial evidence. His book shows that prosecutors had a
prima facie case against Casey’s father for the murder of two-year-old
Caylee, and his abuse of daughter, Casey, beginning when she was only
eight-years-old.
The investigative journalist uncovered a poisonous family relationship
which informs readers on the acquitted defendant’s unusual behavior
when she learned her abusive father killed her two-year-old daughter.
The attorney argues against Mr. Long’s new evidence in an interesting
and provocative discussion of these twin Trials of the Century.
Legal Journalist, Keith Long, delivered speeches to two lawyers’ bar
associations recently in 2015 in Florida. He received an offer to
debate the points made in his speeches by an attorney. Their debate
is published below.
See the speech text at
https://www.academia.edu/12783881/O_J_Simpson_and_Casey_Anthon
y_Acquittals_--_Were_They_The_Right_Verdicts
Dear Keith,
Attorney: Thank you for sending me a copy of the speech you made to
the Florida Defense Bar on the O. J. Simpson and Casey Anthony
cases. If I may, please allow me to say how much I enjoyed the lucid
writing. My compliments also on your research on jury nullification. In
all amity, may I disagree somewhat with the thesis? Though I lack time
to respond at length, I would just make the following points:
Legal Journalist’s Answer: I am pleased to have the opportunity to
respond to your challenging and informed opinions in reaction to my
speech regarding the O. J. Simpson, and Casey Anthony trials. They
force me to reconsider premises, and reevaluate details that led me to the
opinions I advocated to Florida’s criminal defense lawyers. BTW, I also
delivered the same presentation to the Osceola County Bar in
Kissimmee, Florida in February, where the former prosecutor of the
Casey Anthony trial, Jeff Ashton, is a member.
I should begin by outlining my basic position for the O.J. acquittal and
then later revisit Casey Anthony’s acquittal.
The source of our opposing conclusions regarding O.J.’s acquittal rests
in my claim that the jury rejected California’s law against murder as the
law for judging O.J.’s guilt. An extension of that claim is my belief that
not only was the Simpson jury right to acquit O. J., but in doing so, that
trial joined a select company of acquittals that has helped move
American jurisprudence toward an elusive ideal: justice for all. In other
words, the Simpson acquittal was a landmark success for American
jurisprudence.
A review of case law identifies a litany of important landmark jury
acquittal precedents. 1 The Peter Zenger trial was the first instance where
a jury rejected a law as the standard for judging a defendant’s guilt or
innocence. By the way, William Penn was arrested and tried in England
for practicing freedom of religion, and at his trial the jury refused to use
the King’s law prohibiting free exercise of religion as the standard to
judge Penn’s guilt or innocence. After his acquittal, Mr. Penn promptly
fled to America and founded a colony that established religious freedom
as an American right; something that ultimately found voice in the First
Amendment. So there is this nagging nexus between unanimous jury
rejection of laws through trial that have contributed to historic reforms in
the law itself. Religious freedom as an inalienable right is the
cornerstone in a series of noteworthy examples in American legal
history.
An early noteworthy jury acquittal was the Peter Zenger trial in colonial
America. He was tried for speaking critically of the local governor. The
jury believed that Zenger was guilty of the crime of criticizing the
government, but found the law itself to be unjust, and unjustly applied to
Peter Zenger. The jury acquitted Mr. Zenger. Fast forward to 1776 and
the Zenger jury’s rejection of British laws prohibiting free speech found
expression in America’s First Amendment guarantee of free speech.
Other instances of trial jury acquittals that led to historic legal reforms in
America include the acquittals of the many defendants who were
prosecuted for violating the Fugitive Slave Act. Those acquittals
contributed to Lincoln’s decision to issue the Emancipation
Proclamation in 1863.
So we’re talking about the role trial jury acquittals of guilty defendants
has had in constitutional reforms including religious freedom, our rights
to free speech, and the abolition of slavery.
1 I have numerous case law references.
In the 1920’s juries acquitted defendants who were in obvious violation
of Prohibition laws. Those jury acquittals convinced political leaders
that prohibition of the sale of alcohol was never going to be accepted by
the people and forced the legislative repeal of Prohibition in 1933.
It is just as clear that the 1995 Simpson jury’s refusal to enforce
California’s law against murder was a similarly historic example of
unanimous jury rejection of a law. In the Simpson trial the jury’s verdict
to acquit led to historic reforms in Los Angeles police relationships with
the African American community.
All of these trials involving jury acquittals share a common element:
based on the facts presented, the defendants seemed to be guilty as
charged; but their juries applied a judicially recognized power to try the
laws rather than the facts. These juries refused to enforce existing laws
because of the unjust way they were being applied against those
defendants. 2
The Simpson jury’s refusal to enforce California’s law against murder
was a recognized legal power it possessed. 3 More importantly, their
acquittal led directly to systemic reform not only in the Los Angeles
Police Department, but in Los Angeles County courts.
Attorney: 1. I don’t think one may conclude that because black riots
followed the acquittal of the police in the Rodney King case therefore
the jury’s decision was wrong or racially motivated. As we know, riots
followed the grand jury’s non-indictment of policeman Wilson in
Ferguson, but Wilson was subsequently exonerated at all levels,
including the U.S. Justice Department.
2 A jury’s power to nullify is recognized in numerous case law citations. 3 My speech has numerous case law citations of nullification as an inherent power of juries, though not a right.
Legal Journalist’s Answer: The argument presented above is that the
jury’s acquittal of four white police officers who beat Rodney King does
not suggest that there were race issues infecting the Los Angeles County
judicial system. The argument above notes that Ferguson, Missouri
police officer Darren Wilson was also not judged guilty, and so the riots
that followed his grand jury no {true} bill similarly cannot be viewed as
an indication of institutional racism in Ferguson’s police department.
However, I believe it can be reasonably stipulated that the {Los
Angeles} police acquittals and the {Ferguson} refusal by a grand jury to
indict precipitated both riots that immediately followed those decisions.
The argument I raise in my speech draws attention to the relationships
between the African American community and their local police and
judicial systems.
I am reminded that only months after the Rodney King police acquittals,
congress passed 42 U.S.C. § 14141 giving the DOJ authority to force
police departments who engage in patterns or practices of
unconstitutional conduct to institute reforms.
It was only months after the O. J. Simpson jury acquittal, the DOJ
enforced a consent decree with the LA police department to impose
reforms on their department. Current NYC police commissioner Bill
Bratton was brought in to be LA’s new Police Chief and he initiated
meaningful reforms for the admittedly racist LA police institutions.
Similarly, the DOJ determined that Ferguson police engaged in patterns
or practices of unconstitutional behavior in violation of the 1st, 4th, and
14th Amendments. So the LA and Ferguson police departments were
guilty of institutional racism, and as far as the LA police department was
concerned its issues of racism were so ubiquitous in the trial itself that
the Simpson jury was compelled to refuse enforcement of California’s
law against murder. The jury felt it was blatantly obvious that
California’s law against murder was brought with racial bias toward the
African American defendant, O.J. Simpson.
Attorney: The verdict in the Rodney King case likely was rendered
because the case against the police officers simply could not be proved
beyond a reasonable doubt. King was an aggressor against the police
officers. He was on drugs; was tased multiple times, yet he kept on
coming; and the officers were probably frightened at first. Even the
judge in the second (federal) case found that most of the blows against
King were legally justified because of his attack against Officer Powell,
and his continued violent resistance to arrest. It is possible also that this
was an instance of jury nullification. But wouldn’t that work counter to
your argument?
Legal Journalist’s Answer: These arguments {above} take the position
that acquittal of the police officers who beat motorist Rodney King was
justified based on the evidence presented during their trial, a position
that has been debated throughout the legal community since the
acquittals were announced and the bloody riots that resulted.
But the point is well made concerning how do we know when a jury has
refused to enforce a law with its verdict to acquit? Time does not permit
an answer worthy of the issue, but I can say this: A jury’s refusal to
enforce laws also occurred in the Jim Crow South during the 1950’s
when white southern juries refused to convict KKK defendants accused
of murdering or otherwise injuring southern African American members
of their communities.
I agree those incidents were acquittals through jury nullification.
Nevertheless, those jury acquittals contributed to the 1964 Civil Rights
Act, and 1965 Voting Rights Act, two landmark civil rights reforms of
the 1960’s era. The point made in my speech is that when a jury
unanimously refuses to enforce a law, those events are generational; they
count for something, and the legal community needs to pay attention.
Attorney: 2. Regarding the O. J. Simpson case, I would submit that
whether Detective Fuhrman had within the prior ten years used the word
“nigger,” or was racist, would be irrelevant to the question of O. J.
Simpson’s culpability. If one posits that racial motivations would have
led Detective Fuhrman to plant one of the bloody gloves at Simpson’s
home (the other having been found at Nicole’s house), the theory
nonetheless cannot possibly be exculpating, I don’t believe.
a) Furhman was the last of the investigators to arrive at the scene. None
of the other three detectives nor any of the crime scene investigators
ever saw another bloody glove for Fuhrman to have removed it from the
crime scene and placed it at Simpson’s home.
b) The racist theory would only work if the other three detectives and the
other ten crime scene investigators and forensics experts were likewise
racially motivated. There is not a hint of this in the evidence.
c) It would have taken more than Detective Fuhrman to “frame”
Simpson. It would have necessitated all three other detectives
cooperating in the scheme as well as the forensics experts. At that time,
California law provided the death penalty to anyone framing someone in
a capital case. Why would fourteen policeman and forensic experts not
only subject themselves and their families to loss of their careers, but
also subject themselves to the death penalty?
d) The detectives and forensics experts had no motive to frame
Simpson. The alleged “framing” was simply a standard defense tactic, a
desperate diversion, racism in reverse (appealing cynically to the mostly
black jury).
e) Even without the bloody glove, the other evidence against Simpson
was simply overwhelming, most especially the DNA evidence. Because
of the acquittal, O. J. Simpson walked away from two extremely brutal
murders. If the jury nullified the facts and law, it brought about a great
injustice. There is an old Roman saying which has been adopted into the
Common Law: “Qui parcit nocentibus innocentes punit.” He who spares
the guilty punishes the innocent. One only need recall the jury
nullifications in the trials of Jack Kevorkian, convicted for his killings
only on the fifth attempt.
Legal Journalist’s Answer: The details from the police investigation
and evidence presented during trial against O. J. seem to be, I agree,
overwhelming. My friend, private detective, Pat McKenna, who found
the evidence that led to Detective Fuhrman’s perjury conviction, {Pat
worked on the case for F. Lee Bailey, as well as for the Casey Anthony
defense team} has addressed these points in great detail in our
conversations about the trial.
I would only note that I mentioned in the speech that lead LA police
detective Fuhrman besides committing perjury during the O. J. trial, also
took the Fifth Amendment when asked if he planted evidence during his
investigation of the murders.
Finally there is the elephant in the room issue you appropriately raise of
acquittals that intentionally let a guilty defendant go free and the absence
of justice that results. Of course, one immediately recalls the Blackstone
Commentary quote, “Better that ten guilty persons escape than that one
innocent suffer.”
In my analysis, I would rephrase the famous admonition to read: Better
that one guilty person escape justice if an unjust system can be made fair
and in the process, an entire community can find the justice our
constitution guarantees to all.
Still I have considered the issue of justice for victims where it may be a
fact that a jury’s refusal to convict because of an unjust law permitted a
guilty defendant to go unpunished.
My default judgment in the Simpson case is if O.J. was guilty of the
double murders, I would hope that the Goldman and Brown families
could in time find solace in the knowledge that Simpson’s acquittal led
to generational reform in race relations in Los Angeles, and that the LA
police and prosecutors of O. J. were revealed to have corrupt practices
and institutional racial bias against African Americans, something which
the DOJ confirmed only months after the trial ended.
So in summation, I would advance the argument that the O.J. Simpson
acquittal follows an important legal tradition. That tradition is imbued by
citizens impaneled by prosecutors, who then unanimously refuse to obey
a judge’s instructions to follow the law because it found those laws
unjustly applied to defendants they were instructed by the court to judge.
Ultimately, American jurisprudence rests on the principle that our
institutions of justice serve the people. Juries should not by their
selection from a venire serve the government. These jury acquittals I
have referenced have been a remarkably inspiring component of
American law throughout our history. For that reason I argue the O. J.
Simpson acquittal was a landmark success for the American judiciary
and an important contributor to the institutions of American justice.
Attorney: 3. I actually did not follow the Casey Anthony trial. (We
don’t watch television.) However, from the facts you gave, it sounds to
me that the case turned on reasonable doubt, rather than on jury
nullification. The jury pardon doctrine is not favored in the law. It
requires juries to violate their oaths. It results in capricious
outcomes. Florida Standard Criminal Jury Instruction 3.4 is
enlightening on this point: “You must follow the law as it is set out in
these instructions. If you fail to follow the law, your verdict will be a
miscarriage of justice. There is no reason for failing to follow the law in
this case. All of us are depending upon you to make a wise and legal
decision in this matter.” I think it is better to surmise reasonable doubt
here, so as to put the jury in the best light.
Legal Journalist’s Answer: I am pleased to find ourselves in agreement
on this point involving Casey Anthony’s acquittal. During the speech I
made references to the uneasy truce between judges and juries that
creates a balance where juries have the power but not the right to try the
law. I am comfortable with that balance. Insofar as pardon power not
being looked on favorably, I did quote a Florida case, State v
Montgomery 39 So. 3d 252 (Fla 2010), which recognized a jury’s
inherent pardon power.
My book on the Casey Anthony trial lays out why an unsympathetic jury
acquitted the universally unpopular defendant in Florida’s Trial of the
Century in 2011. It was a landmark success because this jury of citizens
from Pinellas County obeyed the judge’s instructions to try facts -- juris
non respondent juratores [juries do not answer a question of law].
My speech argues that the O. J. acquittal was a landmark success
because the jury appropriately tried the law and refused to convict from
that law because a corrupt judicial institution in Los Angeles presented
facts to them.
In the Casey Anthony trial, the jury stood up to unprecedented
community pressure demanding the jury ignore the law and convict the
defendant because of her unpopularity in the community. Instead that
courageous jury followed the judge’s instructions to apply the law to the
facts presented during trial, and the Casey Anthony jury concluded
decisively the defendant was not guilty.
Casey Anthony’s acquittal was a landmark success because it was an
example of a jury following the law in the face of institutional and
community backlash against it for doing so.
So the two juries, for opposing reasons, are instances of landmark
success for the American judiciary in these twin “trials of the century.”
Attorney: Thank you for inviting my thoughts on your very interesting
paper, which my differing views in no way diminishes. In any event, I
am sure the enthusiasm for your talk from the Florida Association of
Criminal Defense Lawyers more than makes up for anything I have said
here.
Legal Journalist’s Answer: I appreciate the opportunity to think about
the issues you raised concerning my speech. I benefitted from a better
understanding of other points of view on these issues, and the challenges
they represent.