OJ Simpson and the legal process - 16 December 1994

The law may be, as Mr Bumble said, an ass, an idiot, but in this country anyway, it's an extraordinarily patient, wordy, logic-chopping and expensive ass. Only this morning I came on three stories that are really old hat, that you'd think had gone off down into the grave of time, but news reports still appear with monotonous regularity, just like those medical bulletins on a king or a president, whose sudden heart attack or stroke at first caused public shock and banner headlines.

Do you remember the dreadful scene, just a year ago, when a man boarded the Long Island commuter train, in the early evening, and started shooting away, killing six people and wounding several others? He was seized and overpowered on the spot and hauled away to prison. Well now his trial is about to begin. Not only did the man plead innocent of the crime, that a dozen or more petrified passengers witnessed, that this week he asked the court for enough money to hire a private investigator.

He's indigent and so the court, which is to say ultimately the taxpayer, is paying all his court expenses. He's chosen to be his own lawyer, so he's been assigned a legal advisor, who says the judge had no other choice than to provide money, since the defendant, one Colin Ferguson, insists, I need the funds to locate witnesses for an investigator to obtain the identity of the actual Caucasian gunmen. An excuse that sounds bold but highly unintelligent. It's unlikely that any of the numerous witnesses would mistake one solitary black man for several white gunmen.

The defendant's advisor said, after a hearing, that Mr Ferguson's request and its implied charge must sound like utter madness. That, the advisor thinks, is the whole idea. If the judge too thought Mr Ferguson was mad, then he'd have to declare the man incompetent to stand trial and he'd be sent off to a mental institution. But the judge ruled, before Mr Ferguson asked for his own Sam Spade, that he was competent. The palpable evidence, apart from on-looking witnesses and the three people who subdued Ferguson and took his gun away, is the sworn testimony of the interrogating detective that, at the time, when Ferguson had said he started shooting, he didn't care who he shot at and said he didn't feel anything. He's now looking for a posse of white gunmen.

I suspect that the judge suspects Mr Ferguson of being competent enough to fake incompetence. He was shown the statement he'd signed, right after his interrogation at the police station." I object", he said, "that's not my signature." Of course it was and the judge overruled him. Soon, I suppose, Ferguson will get the money and hire the investigator, who may then have to decide whether Ferguson is indeed mad and should be saved from the chair or is sane enough to deserve it, an assignment that calls, as the fat man in The Maltese Falcon said, for the most delicate judgement.

By the way, The Maltese Falcon, not the precious mythical bird everyone was after, but the wretched actual lump of lead that all the murder and treachery and bargaining was about, the falcon used and fondled in the movie and eventually scraped at and attacked by the foiled Sydney Greenstreet, it was put up for auction in New York, a couple of weeks ago, when I was in San Francisco. The city sent an official to bid for it and gave him something like $3,000 with permission to go a touch higher in a pinch. I never heard what happened to the official and the San Francisco papers made nothing of the auction's outcome. No wonder. It went to that old, dependable, private bidder for over $32,000.

I was going to say next, do you remember the OJ Simpson case, but of course you do, though we hear less and less of it as the American public wearies of the trial before it started. At any rate, there is a theme, a topic, which more than all the other delaying motions and trail of red herrings that have dragged the case along for six months, a topic that has threatened to delay the start of the trial by weeks, some say months.

Since there were no witnesses to the double murder of Mrs Simpson and a male friend, everything could turn on the various tiny blood samples the district attorney's office has found at the scene of the crime and at Mr Simpson's home and which it is prepared to say belong to no one but Mr Simpson. The proof that these samples match his blood lies, or in other cases, similar charges have been seen to lie, in the well-known DNA test. I hear some blushing listener say quietly, guiltily, what does DNA mean actually? Well actually it means a method of using fragments of deoxyribonucleic acid to establish an auto-radiograph of a particular DNA sample, a method that can be used on another blood sample, suspected of coming from the same person.

The prosecution has maintained from the beginning, when bloodstains were found along the driveway of the separated Mrs Simpson's home and were compared with stains in or around Mr Simpson's house, car or belongings, that they match and therefore are the basis of the charge of a pre-meditated murder. Of course the magical phrase DNA has been a by-word among the learned for a decade or two, but there has not been so far, in this country, a trial in which the DNA method has been so publicised as crucial to the prosecution's case.

In the early days of the case, when the public was being fed reams of scientific material, it was assumed, by most leader writers and pundits anyway, that the chances of two seemingly matching blood samples belonging to anyone other than the suspect, were about one in a hundred thousand. Some scientists said one in two or three million. Then, however, we began to hear from other scientists who challenged this ratio and say no, the chances of matching samples being absolutely correct are more like one in 1,200, one in 200, so widely different from the first claims of infallibility.

Of course the defence lawyers were the first people to leap on the DNA method as being controversial, not absolutely provable. It is, to put it mildly, an immensely teasing and subtle business, so much so that both sides have spent much time in the past half year boning up on the subject and hiring lawyers, whose specialty is nothing else. The defence's hope is to have the DNA findings excluded as evidence.

When the DNA method became complicated and retreated to the inner pages of the serious press, the general public very sensibly gave up on it and turned to the business of picking a jury. As I speak, there is finally, after nearly four months of selecting, a jury, eight blacks and four whites and the alternate jury is almost completed. Why four months? Well in criminal cases the system allows the two sides an exhausting range of delaying tactics.

First, all jurors on the pre-selected panel had to fill out or in a 72-page questionnaire. Possibly a hundred or two chosen potential jurors were then questioned about practically everything in their lives, on and on, till they whittled them down to about 30 or 40. Then each side is allowed so many peremptory challenges, so many jurors who can be dismissed for no reason, you just don't like the look of them. To the onlooker's comment that in England a murder trial jury is chosen in one day or less, the American lawyer tends to shudder at the implied superficiality of such a choosing system. At the moment, any moment you care to choose during this weekend, once the trial starts, expect it to last three, four, sic, months, who knows?

The third case is bang up to date, well-remembered and can be dealt with in a jiffy, an astonishing jiffy. Remember the big issue in the recent mid-term elections in California? They were voting for governor and also for a senator. The governor, Mr Wilson, got in handsomely and Mrs Feinstein got in squeakily and it was generally accepted that the decisive issue was that notorious proposition 187, which was put up to the voters in a referendum. A move to deny to illegal immigrants all but emergency services, by way of hospitals, education, welfare etc. It passed by two to one, so when will it go into effect? Well, perhaps in a year, perhaps two, maybe never.

A federal judge ruled last Wednesday that the proposition violates some federal laws on health and social services and gives to the federal government powers to regulate immigration, which may be unconstitutional. So the lady judge said these were grave matters that ought to be tested by the trial of challenges to proposition 187, already filed by various groups, civil rights, pro-aliens, immigrant defence societies and so on. The best guess about the resolution of these various trials is, well, it would take probably a year before the California state government tries to block them and the trials themselves, one year, two, three, maybe never, ever.

Whenever, they are going to cost the litigants to the earth, just as, as it's been calculated Mr OJ Simpson has already exhausted his handsome fortune on his lawyers before his trial has started. Who was it, the late great Judge Learned Hand, the most distinguished judge never to make the Supreme Court, who said, "No one, I dare say, has more respect, I may even say reverence, for the law than I, yet I urge every new immigrant to try and go through life in the new country without going to litigation."

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