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.