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The People v O.J. Simpson: Why His Lawyers 'Played the Race Card'

An extract from Jeffrey Toobin's book asserts that OJ's lawyers knew he was guilty, but decided their best chance of getting an acquittal was "playing the race card".

by Jeffrey Toobin
10 March 2016, 9:00am


OJ Simpson in 1990. (Photo by Gerald Johnson via)

In October of 1995, over 100 million people watched a jury find OJ Simpson not guilty of murdering his ex-wife, Nicole Brown Simpson, and her friend Ronald Goldman. The controversial verdict, and the grisly tale behind it, continues to fascinate – as well as spawning new headlines – over 20 years later.

Our enduring obsession with the intricacies of the former American footballer's case has been reignited with the the massive success of 10-part true crime show The People v. OJ Simpson: American Crime Story, which covers the spectacle of Simpson's arrest and trial. The series is based on the book The People V O.J. Simpson, by journalist Jeffrey Toobin.

Here, we publish an extract from the book, in which Toobin asserts that Simpson's lawyers, Robert Shapiro and Johnnie Cochran, knew OJ was guilty, so decided that their best chance of getting an acquittal was "playing the race card".

***

Of course they knew.

Of course Robert Shapiro and Johnnie Cochran knew from the start what any reasonably attentive student of the murders of Nicole Brown Simpson and Ronald Lyle Goldman could see: that O.J. Simpson was guilty of killing them. Their dilemma, then, was the oldest, as well as the most common, quandary of the criminal defence attorney: what to do about a guilty client.

The answer, they decided, was race. Because of the overwhelming evidence of Simpson's guilt, his lawyers could not undertake a defence aimed at proving his innocence – one that sought to establish, say, that some other person had committed the murders. Instead, in an astonishing act of legal bravado, they sought to create for the client – a man they believed to be a killer – the mantle of victimhood. Almost from the day of Simpson's arrest, his lawyers sought to invent a separate narrative, an alternative reality, for the events of June 12, 1994. This fictional version was both elegant and dramatic. It posited that Simpson was the victim of a wide-ranging conspiracy of racist law enforcement officials who had fabricated and planted evidence in order to frame him for a crime he did not commit. It was also, of course, an obscene parody of an authentic civil rights struggle, for this one pitted a guilty "victim" against innocent "perpetrators".

The Simpson case was a horrific yet routine domestic-violence homicide. It metastasised into a national drama.

These conclusions are the result of more than two years of reporting on the Simpson case. The week after the murders, I was assigned to cover the story for The New Yorker magazine. In addition to attending Simpson's trial in Los Angeles Superior Court, I interviewed more than two hundred people, many of them repeatedly. I have had access to the full documentary record of the case – including internal memoranda of both the prosecution and the defence teams; advice provided by jury consultants to both the prosecution and the defence; the police "murder book", with its summaries of all LAPD interviews with witnesses; the written summaries of all witness interviews by members of the defence team; heretofore secret grand-jury testimony; and depositions from the pending civil case against Simpson [in 1997, in which Simpson was ordered to pay $25 million in punitive damages to the families of Nicole Brown Simpson and Ronald L. Goldman]. I have also reviewed the enormous coverage of the case in the news media, an especially important task in the context of this case. The participants in the Simpson case worked obsessively to influence press coverage. These efforts to shape the news – some successful, some not – had important and lasting consequences from the night of the murders to the morning of the verdict.

Indeed, the heart of the defence strategy featured an effort at public storytelling, the creation of a counter-narrative based on the idea of a police conspiracy to frame Simpson. For this effort, the defence needed a receptive audience, which it most definitely had in the African-Americans who dominated the jury pool in downtown Los Angeles. The defence strategy played to experiences that were anything but fictional – above all, the decades of racism in and by the Los Angeles Police Department. The defence sought to identify the Simpson case as the latest in a series of racial abuses by the LAPD, which featured such celebrated outrages as the Rodney King case and thousands of other insults and affronts great and small. This legacy of black distrust of the LAPD was the fertile soil in which the Simpson defence strategy grew. As the events of the case unfolded, the LAPD more than lived up to its reputation as one of the worst big-city police departments in the United States, one that tolerated sloth, incompetence and racism. As it happened, though, bad as the LAPD was, it did not frame O.J. Simpson; no one planted or fabricated any evidence. In fact, the defence cleverly obscured the one actual police conspiracy that was revealed over the course of the case – that of the starstruck cops who in 1989 tried to minimise and excuse O.J. Simpson's history of domestic violence.

It is ultimately unknowable whether a brilliant effort by prosecutors in the Simpson case could have produced a conviction in spite of the defence effort to make the case a racial referendum. There was, alas, no such splendid performance. Indeed, despite the best intentions, the case was largely botched by the Los Angeles District Attorney's Office. The prosecutors were undone by the twin afflictions most common among government lawyers: arrogance (mostly Marcia Clark's) and ineptitude (largely Christopher Darden's). Drunk on virtue, the prosecutors squandered what little chance they had for victory.

At its core, the Simpson case was a horrific yet routine domestic-violence homicide. It metastasised into a national drama, one that exposed deep fissures in American society, for one reason: because the defendant's lawyers thought that using race would help their client win an acquittal. It did. That was all that mattered to them. More than a decade ago, Alan Dershowitz, one of Simpson's lawyers, gave a candid précis of the approach that would characterise the defence team's efforts. In his book The Best Defence, Dershowitz wrote, "Once I decide to take a case, I have only one agenda: I want to win. I will try, by every fair and legal means, to get my client off – without regard to the consequences."

The People V. O.J. Simpson is published by Arrow.

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