OJ Simpson's civil trial - 20 September 1996

A partner in your firm say steals a thousand dollars. He can be sued by the state on a criminal charge of embezzlement. But in a non-criminal suit, in a civil suit, you can sue him too because he took your money and deprived you of the uses to which that money might have been put. It's a very old, indeed a medieval idea, the right, after a criminal trial, to have a civil trial on the plea that the criminal deprived you of the services of a relative, a friend of whoever was the victim.

And so last Tuesday in California the second OJ Simpson trial began. A civil trial. Not in Los Angeles proper, but a mile or two up the coast in Santa Monica, which for sixty years or more was a small residential resort city. It's now a large residential resort city, but with its seafront and its beaches and palm trees, a pleasant enough place, a discovery made in the past few years by the homeless who've become a problem that Santa Monica just now is wrestling with.

Santa Monica then, a new venue for the new trial. And a new judge who has been swift in setting new rules of procedure which will attempt, he says, to banish what he calls, "the circus atmosphere of the first trial," which ended, you may recall, in the former football star being acquitted of the murder of his wife Nicole and a man, a waiter friend, who had stopped by her house to return some eyeglasses that had been left at his restaurant.

First, who is the plaintiff? Who is suing for – in the legal phrase – loss or deprivation of services? This civil suit is being brought by the family and the state of the dead wife and the family and the state of the dead friend. And the charge is that OJ Simpson caused their "wrongful" death.

The judge in the criminal trial was a Japanese American. The new judge is also, it happens, a Japanese American, one Hiroshi Fujisaki. On the first day of the trial he at once made things tough for the media, the lawyers, not least for the gaping multitudes who sat petrified or stupefied through the many, many months of the televised criminal trial. The new judge announced there would be no televising whatsoever, no photographs in the court room. Neither the lawyers, nor the plaintiffs, nor the defendant could talk to reporters or anyone outside the courtroom about the case.

On the publication of these restrictions, there was a vast intake of breath of incredulity across the land. I don't know how it is in your country, but there was a time in, certainly the courts of the Eastern United States, when these were the normal rules. In the trials I covered, everything from perjury to fraud to murder to a court-martial, the presiding judge always said that the lawyers should not discuss the case with reporters, and once a jury returned with its verdict, its members were warned not to talk publicly to anyone, or either publicly or privately, to the press.

But as with many other Western customs and mores, the rules have slackened somewhat down the years and television has been the very successful devil's advocate in maintaining, that to keep the cameras out of practically any public place – and many private places – is a violation of that battered standby, the First Amendment, which guarantees freedom of speech, free speech having most recently been defined as the burning of the American flag, the filming in intimate living colour for national network television and, for all to see, the collision of male and female genitals. Just, you may be sure, what Washington and Madison and Benjamin Franklin and Hamilton and the other great men had in mind when the First Amendment to the Constitution was composed.

However, even with no television and no lawyers' interviews, there are enough differences in the requirements of a civil trial – especially in the legal definition of guilt – to tickle the curiosity even of the high-minded who pretended to take no notice of the criminal trial.

First, in a civil case the jury does not need to keep to the standard of finding guilt beyond a reasonable doubt. It is required to weigh only a preponderance of the evidence. More important still, more favourable to jurors who are wobbling, in California civil trials, the jury does not need to find a unanimous verdict. A decision of nine to three would constitute a verdict. So to begin with, the great majority of experts who've been tapped for an opinion agree that finding a verdict of guilty against OJ Simpson will not be as exacting as it was in the criminal trial.

On the first day of the new trial, the judge moved with astonishing speed and decisiveness, and I have to remark, that even with the most austere and modest men, the fact of not being on television does encourage them to get down to business and cut out, as Jelly Roll Morton said about jazz piano playing: "Cut out that picture-show right hand".

The judge also made the defence's case harder to plead by greatly restricting what it could say about the malodorous policeman Mark Fuhrman. Remember him? Some people thought he lost the case for the prosecution single-handedly by swearing he'd never used racist language until a taped interview was found which was a foul recital of racial obscenities. He was the one who the defence said had planted that bloody glove that was found in OJ's driveway.

The judge said they couldn't use that tactic, that characterisation. If they believed there were other killers, they must prove it with specific evidence. Also they could not mount a general attack on the Los Angeles Police Department as corrupt or a particular attack on their allegedly clumsy handling, the defence said, contaminating, of blood samples. That tactic had led the defence – and evidently in the end, the jury – to believe that Simpson had most likely been framed.

None of these vague charges, these sinister presumptions could be entered, the judge said, without evidence. "There is," he said, "a legal standard you have done nothing to comply with. You've tried a shotgun approach. I want chapter and verse."

All these new rules and new rulings are bound to be questioned on appeal, and it looks even now as if there would be lots of appeals. The expert guess is that the trial will take at least four months and the appeals maybe a couple of years. And what, you may ask, is in it for the plaintiff, especially Mr Goldman, most prominently Mr Goldman, father of the dead man? Of course there being no criminal charge, no criminal conviction, the Constitution forbids anyone's being tried twice for the same crime if acquitted the first time. What Mr Goldman and the other plaintiffs could get would be a heap of money. But the question has already arisen: how much more money can Mr Simpson be relieved of? He's said to be practically bankrupt now. Millions have gone out on both sides to the old lawyers and there will be more to the new.

The most Mr Goldman can secure from a guilty verdict, from an upheld guilty verdict, is the satisfaction or the frustration, of knowing that he was deprived of the companionship, the affection, the life of his son by a man who was responsible for his wrongful death.

You might guess that the effect of these strict new rules and restrictive rulings would dampen the public's ardour in following the case, but the same appeal to the First Amendment is already being made, the same itch to eat forbidden fruit, the same impulse that makes Americans suspicious of any politician who doubts that everybody has a right to know everything discussed in private. The signs flicker all over the place that many reporters will think up every sort of dodge to sneak under the curtain of silence the judge has lowered on the case. You may be sure that for the next few months the tabloids in every country will have a field day inventing juicy rumour and elevating hearsay into what they call, "fearless reporting".

One evening in mid-week, a news anchorman commenting on the fact that second generation Asians – first generation Asian Americans – are rising conspicuously in American society. He'd mentioned that the two judges on the two Simpson trials were Japanese Americans, and he went on at once to the frustrating news of that splendid woman astronaut, with her grown children and anxious to see them, who was not exactly stranded but stalled in space. She was meant to be home six weeks ago, but first problems with a booster rocket and then the approach of two hurricanes grounded the good ship, the good shuttle, Atlantis, which, at last, was off to rescue her from the Russian space station Mir, the friendly Russian space station, aboard which Russian space officials say she has done yeoman or yeowoman service.

The anchorman glided effortlessly from the name of the Simpson judge to the woman astronaut because he couldn't help reciting her beautiful name. It is Shannon Lucid. I wonder where that came from. I'll have to find out and add it to my list of favourite American names, a mild hobby which started when I discovered, as, alas, all Englishmen must, that the United States is not and has not been run by Americans of English origins for some time, say a century or so.

Here in New York, my breed, the WASPs, might claim to be the most depressed minority ever, or rather the most suspect. In the seven million people of New York City, there are just over six per cent white Anglo-Saxon Protestants whether practicing or lapsed. Some time we must go into the baroque story of American names. How about Judge Kenesaw Mountain Landis, Warren Gamaliel Harding? For the present, I'll have to leave you to figure out how the late jazz pianist got to be christened Thelonious Sphere – not globe – Thelonious Sphere Monk.

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