Actually, even in court there are problems with the presumption of innocence. The presumption of innocence, we all know, is a hallowed doctrine that separates us from repressive regimes. It’s the foundation, in fact, for the rule that is the bedrock of our system of justice—that a defendant can be convicted of a crime only if his guilt has been proved beyond a reasonable doubt. However, legal presumptions are based on the rationale of probability. Under certain situations, experience has shown that when fact “A” is present, the presence of “B” should be presumed to exist unless and until an adverse party disproves it. For example, a letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail delivery. But when we apply this underlying basis of probability for a legal presumption to the presumption of innocence, the presumption, it would seem, should fall. Conviction rates show that it is ridiculous to presume that when the average defendant is arrested, charged with a crime, and brought to trial, he is usually innocent. But obviously, the converse presumption that a defendant is presumed to be guilty would be far worse and, indeed, intolerable. Our system, for readily apparent reasons, is far superior to those in nations, mostly totalitarian, which presume an arrested person is guilty and place the burden on the accused to prove his innocence.
The solution would seem to be simply to eliminate the presumption-of-innocence
instruction
to the jury, keeping those two necessary corollaries of the presumption which do have enormous merit: first, the fact that the defendant has been arrested for and charged with a crime is no evidence of his guilt and should not be used against him; and second and more important, under our system of justice the prosecution has the burden of proving guilt. The defendant has no burden to prove his innocence. It is one thing to say that the defendant does not have to prove his innocence, and that in the absence of affirmative proof of guilt he is entitled to a not-guilty verdict even if he presented no evidence of his innocence at all. To go a step further, however, and say that he is legally presumed to be innocent when he has just been brought to court in handcuffs or with a deputy sheriff at his side seems to be hollow rhetoric. One day a defendant is going to stand up in court and tell the judge, “Your Honor, if I am legally presumed to be innocent, why have I been arrested for this crime, why has a criminal complaint been filed against me, and why am I now here in court being tried?”
As any seasoned criminal trial lawyer will attest, most juries see through the transparent fiction of the presumption of innocence. Whether they verbalize it or not, as reasonable human beings they know that if the defendant seated at the counsel table in front of them were truly presumed to be innocent in the eyes of the law, they would not have been empaneled to hear and adjudicate the charges brought against the defendant
by
the law. It is even possible that the articulation of the presumption of innocence by the judge to the jury may, on balance, work to the detriment of the accused. If the jury knows the presumption of innocence is a legal fiction, yet the judge intones the presumption to them in a very sober manner, and with the straightest of countenances, could it be that he thereby loses a speck of credibility in their eyes? And when he subsequently instructs them on those matters which
are
legally sound and designed by the law to protect the rights of the defendant (e.g., the doctrine of reasonable doubt), they may not take his words as seriously as they should?
With respect to the supposed inappropriateness of my speaking out because I am a member of the bar, the Rules of Professional Conduct of the American Bar Association, specifically Rule 3.6, provide that the prosecutor and defense attorney on a case should not make any statement outside of court as to whether the defendant is guilty or not guilty. Yet, the defense attorneys in the Simpson case consistently voiced their opinion to the media that Simpson was innocent. I don’t have any problem with that. I think Rule 3.6 is unrealistic and unduly restrictive. But the point I want to make is that if lawyers
on the Simpson case
who were not supposed to state their opinion did so, certainly someone like me who was not involved was entitled to do so. The First Amendment to the United States Constitution allows this.
However, even given the fact that I was not prohibited by Rule 3.6, or by the presumption of innocence, I would normally have felt it unseemly and in poor taste for me, a member of the bar, or for any public official to speak out on an accused’s guilt before the verdict, and this was the very first time I ever did so. I had objected when President Nixon (also a lawyer, by the way), during the Manson trial, said to reporters in Denver he believed Manson to be guilty. That statement made headlines throughout the country and almost caused a mistrial.
I spoke out in the Simpson case for two reasons. The main reason should be self-evident to the reader by now. The “in the air” phenomenon attending the Simpson case was, at least to my recollection, unprecedented for any criminal case. Because this was a highly unusual situation, I departed from my customary policy. There was no doubt in my mind that the “in the air” phenomenon had the potential of having a prejudicial impact on the prosecution’s case, since the jury couldn’t help but be aware of it and probably be adversely influenced in the process, and I was trying to counter what was happening. I obviously was unsuccessful.
There was another related reason I spoke out early on, months before the trial. I was disgusted by the tremendous groundswell of support for Simpson, even though two human beings had been brutally murdered, and
all
the evidence pointed to Simpson as the perpetrator. He had received 350,000 letters of support at the time, and although each revelation of his guilt the media learned of was clinically and dispassionately reported in the news, nearly all of the commentators on television nonetheless treated Simpson as if he were a very special human being, and not one of them dared to say one negative word about him. He was being given special treatment at the Los Angeles County Jail; thousands of people were calling in on radio talk shows asserting his innocence; some, unbelievably, stating or strongly implying that even if he was guilty, he’s O.J., let him go, he has suffered enough. As I’ve indicated, even today, everyone still calls him O.J. You know, O.J. this and O.J. that. Well, he’s no longer O.J. to me. He’s Simpson. Someone who viciously carves up two human beings and leaves them lying dead in a pool of blood forfeits his right to any endearing nicknames, at least in my view. Again, why there was this enormous support for someone who had obviously committed two of the worst murders imaginable I don’t know, but I personally found it repulsive and repugnant.
I
n addition to Simpson’s astonishing, and to me incomprehensible, popularity, there were two other dynamics at play in this case which were very much “in the air” and inuring to the detriment of the prosecution in the eyes of the jury: the media hype that converted the defense lawyers into “the Dream Team,” and the phenomenon of the “talking heads” who made a cottage industry out of their daily and nightly television commentaries on the events in the courtroom.
Let’s start with lawyers, specifically lawyers in criminal cases before a jury, which is the only area of the law I feel I’m qualified to talk about. I start out with the assumption that a lawyer in a criminal case is going to be incompetent, substantially so. I find my assumption to be rarely wrong. Yet society starts out with the very opposite assumption. I happen to know society is wrong, dead wrong. The reason I say this is that not only do the facts and the evidence show society is wrong, but common sense does. Here’s why. Incompetence is rampant in our society, from presidents on down. In fact, it is so bad that the only adjective I’ve been able to come up with in the lexicon that adequately describes it is “staggering.” It’s so common that I expect it, and when I find competence, I am always pleasantly surprised.
It is not my purpose in this book to convince people of this reality. If the reader isn’t aware of the prevalence of incompetence, I certainly won’t be able to disabuse him of his sheltered view in a few paragraphs. But people can’t do the simplest things right. For instance, I travel a lot, and I always assume that room service is going to forget something, whether it is water, cream for my coffee or butter for my bread, a knife, fork, or spoon, part of the order, etc. And room service is a simple, repetitive, day-in-and-day-out task that people with an IQ of 60 should be able to perform. But the people making these errors, many of whom are students working their way through college, don’t have low IQs. There is no reason to believe, in fact, that their IQs are any lower than those of people going to law school.
How often have you been in a parking garage and found that the signs directing you to the exit are grossly inadequate? They’re too small, or partially obstructed, or not in the obvious place they should be in. Or after one exit sign, the next one is so far ahead that you have already taken a wrong turn where there was no sign to guide you. And so forth. Putting adequate signs up has to be fairly simple, and the person has all the time in the world to do it. And does anyone really think that those who are responsible for putting up these signs (or highway signs, which also are so often very bad, and undoubtedly have contributed to many, many deaths throughout the years) are mentally retarded? No, they’re just incompetent. Normal people.
Have you ever moved into a brand-new home? Aren’t there one hundred defective things, many of which require your calling the workers out three or four times to fix once and for all? Do you really believe all these carpenters, plumbers, electricians, etc. are morons? Of course not. They are perfectly normal, incompetent people. It is just too much for them to do their job well, even though the work they do is relatively simple work they do every working day, and it’s almost mechanical, necessitating very little thinking.
How about all the consumer products that are difficult to operate because whoever manufactured them was too incompetent to make it easy? Or the instructions that are hopelessly confusing and sometimes flat-out wrong? In fact, many of today’s fancy, gadgety consumer goods aren’t nearly as easy to operate as were their simpler predecessors. Apparently, the brainy manufacturers haven’t gotten it through their skulls that the only purpose of virtually all products is their utility. And that frills should be added, if at all, only to enhance the product’s utility, not at its expense. How about the large office buildings either without street numbers on them or with numbers located on the building in such a way they are difficult to see from the street? Or floors and room numbers at some hotels which require an Indian guide to find? Or the recorded voice in the shuttles at some airports that are virtually impossible to hear or understand? Do you really believe the airport administrator has a much lower IQ than the average lawyer? How about the incompetents at the telephone company who decided a few years back to improve the perfectly adequate and easy-to-use touch keys on public pay telephones by adding a metal cusp on each side of them, making it actually difficult to punch the numbers? In fact, it is virtually impossible to punch the keys fast without hitting at least one or two cusps instead of the keys. Do you really think that all the people involved in this multimillion-dollar project at the telephone company are certifiable idiots, with IQs lower than those of trial lawyers? If you think so, you are wrong. There are of course thousands of other examples of incompetence. These are but a few.
If incompetence is so endemic in our society, even among people doing simple, repetitive things with a lot of time in which to do them, doesn’t common sense tell you that the incompetence is going to be even more common and pronounced with trial lawyers who deal with different witnesses in every case, with different facts and evidence, who are constantly forced to think on their feet under pressure of time, and who have an opponent who is trying to thwart and negate their every move? Yes, common sense tells you this. But this is not the way society sees it.
The reason is the extremely strong myth in our society—the genesis, I imagine, being from novels and films—that criminal defense attorneys, particularly those on big cases, are brilliant, great, high-powered, silver-tongued; that they’re magicians, able to pull rabbits out of hats, etc. Although there is incredible incompetence everywhere in our society, for some curious reason, because of this myth, defense lawyers are perceived to be an exception.
The reality is that the vast, overwhelming majority of trial lawyers in criminal jury trials are either incompetent or operating at a very low level of competence. And if most prominent trial lawyers met their reputations out on the street, they wouldn’t recognize each other.
In addition to novels and the screen, the media have been very complicit in perpetuating the myth. For example, cross-examination as bland as pablum is routinely reported to be “rigorous” or “withering.” Why? Because cross-examination is
supposed
to be rigorous and withering.
Similarly, there are some easy ways to destroy the credibility of an adverse witness that even a relatively unskilled cross-examiner can manage—introducing prior inconsistent or contradictory statements, showing the witness’s bias or vested interest, his poor character for truth, etc. It’s always amusing to me when I see laypeople and the media being so impressed when a lawyer does these simple, obvious things in court, things an average person would instinctively know to do. Here is how ingrained the myth is: How many times have you heard a layperson, talking about a weakness in a case, say, “A
clever
lawyer would…” and then proceed to tell you what the layperson thought to do himself? Why? Because lawyers are
supposed
to be clever.
For example, in the June 27, 1994, edition of
Newsweek
, the writer, referring to the apparently delirious behavior of Simpson during the slow-speed chase, wrote: “A
clever
defense lawyer might try to turn his bizarre ride around the L.A. freeways into evidence that he was mentally unhinged.” The writer, of course, was not tactless enough to be complimenting himself here for his own idea. He was unconsciously playing into the myth, and once he furnished the lawyer with his, the writer’s idea, he praised the lawyer’s cleverness. Again, why? Because the criminal defense attorney, not the writer, is supposed to be clever, even if, as here, the idea required no intelligence at all.