OJ Simpson guilty - 7 February 1997

One of the happiest, most consoling pictures that have ever appeared on television opened One Network’s news programme on Wednesday evening.

It had been taken in mid-morning and it was simply a high, long shot of a scene that could be nowhere but Southern California. Or perhaps Southern Spain.

It was in Southern California. A handsome Spanish-style red-tiled roof courthouse on its own grounds. In the foreground, palm trees glistening in a gentle breeze; and on the shining, white sidewalks that are so characteristic of California, there were one or two people passing by. A single policeman, a state trooper perhaps, sat on his idling motor bike, his left leg swinging slowly at ease. That was the mood; and it was one that I’d guess every American who saw it was mighty grateful for.

It was of course the courthouse at Santa Monica, the small town up the coast from Los Angeles, where OJ Simpson’s civil trial had ended and a verdict brought in only minutes after President Clinton had finished his State of the Union address.

That was not exactly a happy coincidence. The television networks were in a dreadful dither wondering if the verdict would come through during the President’s address to the nation, the very speech he gives (if at all) only once a year. But the judge in the trial surely knew what he was doing when he announced, soon enough for the early evening news shows, that the jury had reached a verdict but he would hold off the pronouncement of it for an hour or two.

He said at the time he wanted to give the principals – the defendant, the plaintiffs, the families of the murdered wife and of the male friend, the lawyers and the rest – time to get to the courthouse from the “clogged freeways” at the rush hour.

Because of the staggering years ago of the working day by many businesses, the rush hour in and around Los Angeles starts before three in the afternoon and slackens off about seven, a fine, hurtling four rush hours.

Anyway, whether he’d been briefed or not, the judge saw to it that shortly after 10 eastern time, 7pm in California, the verdict was announced – just as the applause of the two Houses of Congress, the diplomatic corps, the justices and the others died down. And next morning, the scene outside the courthouse was calm and bright.

It was a sight that brought immense relief to anyone who has lived in this country since the Watts Riots 32 years ago or has memories of the dreadful night in Los Angeles barely five years ago when the first Rodney King verdict came in. Remember? He was the escaping black motorist whom an amateur with a movie camera caught being beaten up by white cops. Anyone who remembers these things and saw coming literally true the dire prediction of the black writer James Baldwin, it’s The Fire Next Time. We can only marvel at that California shot of the elegant Spanish courthouse, the lazy palm trees, the lolling cop.

The various pundits of the media have not been slow to explain this blessed contrast. On Tuesday evening, after 7 California time, the crowds jostled and broke up and then drifted away, and there was miraculously no report of even a nasty scuffle. There was cheering mixed in perhaps with a boo or two, small groups with placard, the most conspicuous one waving over the crowd’s heads a banner with the crude device, "OJ not guilty".

That seemed to be as far as anyone went by way of protest at the verdict which, to be precise and careful about it, seemed to repudiate the acquittal in the criminal trial. For just as in a criminal trial, they never bring in a verdict of innocent; in a civil trial, no jury brings in a verdict of guilty.

They found Simpson “liable”. For what? For damages to compensate for – I quote – “wrongful death”.

The pundits on every medium are hastening to explain to us peasants the subtle differences between a criminal and a civil trial. But before we go into that maze, let me sum up what people have to say about the contrast between the tumult of black jubilation after Simpson’s acquittal in the criminal trial and the comparative calm, almost resignation, of the Santa Monica community and the inquisitive people who went there.

First, Santa Monica is a suburban seaside town of about 90,000. Comfortable, middle-class whites are in the majority. The civil trial jury was ten whites, one Hispanic, one Asian-American.

Los Angeles is geographically the widest city on earth, has eight million people. The jury in the criminal trial was eight blacks, two Latinos, two whites.

A popular theory is that after two years and eight months of every sort of exposure to the case – millions of tabloid words, days and months of TV trial coverage, uncountable TV interviews – the country is finally saturated or satiated to the point of nausea.

This is a popular theory and terribly attractive to people who ache to mobilise all the facts running one way and ignore the awkward facts running the other.

So far there have been scores of audiotapes for sale, 17 books on the case, and at least six more are in the works. The four leading counsel lawyers in the first trial have got themselves lucrative jobs on new television shows, analysing either real or fictional cases. Three or four of the early witnesses and a lawyer have turned to television acting.

Witnesses of at least challengeable credibility have been signed up for books, including the girlfriend who left Simpson just before he was first charged. She never appeared as a witness. She got an advance of three million dollars. And a fringe or bit player, an alleged friend of the dead woman, who is a former drug addict, has now appeared in the centrefold of – how shall I say – a soft porn magazine.

Somebody wondered if there has ever been a trial in American history that made millionaires of half a dozen reporters who covered it.

Of course I should warn, me as much as anybody, that as I speak the case is not finished. The civil jury awarded compensatory damages, even though the family of the murdered young man never asked for it. Civil trial lawyers say that the figure of $8.5million is exceedingly high. Usually it’s in the hundreds of thousands, with the big sum assigned as "punitive damages", which the jury started discussing in mid-week.

Which brings us to the difference in California law between a criminal trial and a civil trial. The main one is that in a criminal trial, the verdict must be unanimous. The first, the acquittal verdict, did not say that the defendant was innocent; only that, as the case was presented by the prosecution, the defendant’s guilt was not proved beyond a reasonable doubt.

In a civil case trying a murder charge, only nine of the jury have to agree to produce a controlling verdict. In the result, they were unanimous. Reasonable doubt is not the criterion; the jury must simply believe that the weight of the evidence leads them to conclude that he did wilfully perform the acts of which he was accused. And then they bring in a verdict – as they did – that the defendant was liable.

I’m talking to most listeners in several countries over the weekend, and if the jury has not yet assessed an amount of punishing damages, presumably the Santa Monica calm will be prevailing.

But a hint of what, so help us, might stir old rebellious passions came at the end of the week when it was reported that the two families – the parents of the murdered young man and the parents of the murdered wife – served notice through their lawyers that they intend to take not only what Mr Simpson has in the bank but a goodly share of what he might earn in the future.

I should have said earlier that punitive damages are the limit of a civil jury’s power to punish. He cannot again be jailed. To be tried again on a criminal charge would constitute a violation of the "double jeopardy clause" in the Constitution, which says no person may be tried twice for the same crime.

But whichever way it goes, the case is by no means over and done with. There will be appeals. And there’s even been a strong suggestion that, in view of Mr Simpson’s own testimony on the stand (he chose not to testify in the criminal trial) somebody – maybe the district attorney, maybe the families – might want to set up a third trial for perjury.

Surely the day will come when a majority of the American people, even those convinced of his guilt, will cry, “Hold! Enough!”? The impulse of the families for ruinous revenge could be (let’s hope not) could be the trigger of another black uprising.

As for the question of whether the civil trial did or did not repudiate the verdict in the criminal trial, the New York Times editorialised, "There seems little question that the majority of Americans will salute this verdict as a reasonable response to the facts."

May I, as the English barristers used to say, may I, my lord, beg to differ? I think there’s a very big question. That the majority of Americans might agree on the second guilty verdict is true only because there are ten times more whites than blacks, but the fact is that a national survey finds 75% of whites believing Simpson to be guilty and 77% of blacks believing him to be innocent. Almost the exact proportion as in the first trial.

So I’m afraid the consensus must be that if you have a nearly all-black jury, you find a black man not guilty; a nearly all-white jury and he’s found guilty. This is, alas, what three blacks in four of every level of education believe.

If it proves anything, it is that after over 40 years of legally enforcing the integration of the races, the fear and suspicion between the races is still what President Clinton called the other evening “a curse on the land”.