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Tuesday, June 21, 2016

O.J. and Rodney King

I hope people have had a chance to watch O.J.: Made in America, the spectacular five-part ESPN documentary that traces O.J.'s life from his college career to his current incarceration, while weaving his story into the story of racial bias in society and the LAPD and O.J.'s lifelong efforts to "rise above" race (the telling line is "I'm not Black, I'm O.J."). The film links O.J.'s acquittal (by a largely Black jury) to the acquittal of the officers who beat Rodney King (by an all-white jury). On this telling, O.J.'s acquittal was "revenge" for the officers' acquittal, the long-awaited chance for an African-American to benefit from mistakes in the system. One juror explicitly acknowledges this as her reason for voting to acquit.

But the film (and every conversation about the connection) omits something: Two of the officers in the King beating were convicted of federal civil rights violations and sentenced to 30 months in prison (the other two were charged and acquitted). So if justice means that a wrongdoer is convicted and punished under some criminal law for his misconduct, there was some justice in that case. It may not have been enough justice or the right kind of justice. Thirty months was arguably too short (the court departed downward from an expected Guidelines range of 70-87 months). Perhaps it somehow would have been "more just" for them to be convicted of assault, etc., in state court rather than civil rights violations in federal court. Indeed,  that might prove the point. Congress enacted the Reconstruction-Era civil rights statutes because the states were incapable and/or unwilling to enforce the rights of African-Americans against whites and white public officials. Having to resort to those in 1992 demonstrated how far we had not come.* Some had a sense that the civil rights charges were illegitimate, more a result of the rioting that followed the state-court acquittals (which the Koon Court took time to call out) than legitimate prosecutorial decisionmaking or use of federal criminal law.

 [*] And still have not come, where police-abuse cases now do not even make it past a grand jury and even the civil rights backstop is increasingly unavailable.

It seems too simple to say "Stacey Koon, et. al, got off, so O.J. should have gotten off." Because Koon and Powell did not get off, at least not entirely. By contrast, two people who had nothing to do with anything were dead in a horrific manner (I had never seen the photos of the bodies or the crime scene--they were stunning) and, on the definition above, they did not receive justice.**

[**] I bracket for the moment how we consider, in terms of assessing "justice," the civil verdict that necessarily included a jury finding that Simpson killed Nicole Brown and Ron Goldman but that did not impose criminal punishment, or the absurdly long sentence Simpson received in 2008 for the events in Nevada, which everyone sees as having impermissibily taken the murders into account. In one interview segment, attorney Carl Douglas points out that the Nevada judge held the jury until late into the evening to announce the verdict on the thirteenth anniversary of the murder acquittal and sentenced Simpson to 33 years, matching the $ 33 million in damages awarded in the civil case.

Posted by Howard Wasserman on June 21, 2016 at 09:31 AM in Criminal Law, Culture, Howard Wasserman, Law and Politics | Permalink


I am not quite sure what you're looking for me to say that would not get me debarred (which sounds painful). I wanted to write about a slightly different point, which says nothing about the propriety of what that juror did (or said she did). For what it's worth, what you describe is the essence of jury nullification.

Posted by: Howard Wasserman | Jun 22, 2016 7:18:44 PM

A woman admits she voted to acquit a man guilty of butchering his estranged wife and a third person because she fancies that a clutch of Los Angeles police officers should have received prison sentences for beating (several years earlier) a troublesome individual who attacked them.

You have a remarkably anodyne response to this woman. In a just world both of you would be debarred from any sort of public trust.

Posted by: Art Deco | Jun 22, 2016 6:07:06 PM

Asher: What exactly makes the questions in your parenthetical "fluff"? What questions did you want/expect to see explored and who would you want discussing them?

Posted by: Doug B. | Jun 22, 2016 5:36:08 PM

"It seems too simple to say "Stacey Koon, et al., got off, so O.J. should have gotten off." Because Koon and Powell did not get off, at least not entirely."

Even if Koon and Powell did get off, entirely (and I'm inclined to think that they were substantially under-sentenced, and that, to the extent one's engaging in this kind of argument, a federal conviction isn't too germane to whether O.J. deserved to be acquitted in a California/LA prosecution because of some supposedly related wrongful acquittal in a California/LA prosecution), isn't the much more important point that it's ridiculous to say that O.J. should have gotten off because Koon et al. got off? It's hard to see where the acquittals of Koon et al. bear on O.J. Simpson's deserts, or how they bear on anyone's, other than perhaps Rodney King's, had he been charged with some crime. Even if one subscribed to this weird wrongful acquittal for wrongful acquittal notion of justice, I can't see (and this is one of the points of the show) that O.J. was the person, of all people, who deserved an acquittal on account of Koon et al.'s acquittals.

Other than that, I actually strongly prefer the recent fictionalization of the OJ trial to this documentary, which I feel does a lot of things competently but almost nothing very well. I don't see that it's that far removed from the standard-issue talking head documentary that's only as good as its not very good talking heads. For example, I was watching episode 4 last night and the show stops for 5 minutes for about half a dozen people, in new interviews or old archival clips, to offer warring uninsightful takes about the propriety of Johnnie Cochran's comparing Mark Fuhrman to Hitler. Perhaps one could defend this as a meta-illustration of how divisive the O.J. trial was and is; twenty years later Carl Douglas and Jeffrey Toobin can't even agree on whether Cochran was in bounds in comparing Fuhrman to Hitler! I'm skeptical that that's what was intended, but even if it was, there are more interesting ways of making the point than interviewing Jeffrey Toobin. There's all sorts of fluff along these lines (do we care about whether Barry Scheck was honest about the DNA evidence? About whether Furhman planted a fraction of the overwhelming evidence against O.J.? About the LAPD's shoddy evidence-handling practices? About whether Nicole Brown slept with Marcus Allen?), but even ignoring all of it, I just don't think the show is all that smart about race or anything else.

Posted by: Asher Steinberg | Jun 22, 2016 4:20:51 PM

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