March 19, 1998
Vol. 17, No. 12

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    Alschuler: Dirty tricks a key element in O.J. victory

    By Catherine Behan
    News Office

    Analyzing the tactics of the O.J. Simpson defense attorneys, Albert Alschuler has identified one element of the team's success: dirty tricks.

    "A study of the books by attorneys on both sides of the Simpson case reveals much 'Rambo' lawyering," Alschuler, the Wilson-Dickinson Professor in the Law School, said to a group of California law students earlier this month. He challenged the students to consider what lines they would be willing to cross to win for a client, and he criticized the idea, voiced repeatedly in memoirs by Simpson's trial lawyers, that a lawyer is ethically obliged to do everything the law allows to win his or her case.

    "Many of you no doubt want to tell me that the O.J. Simpson trial was atypical. It was," Alschuler said. "Many of you probably want to point to other verdicts as proof that our system of justice can work well. It can. Many of you probably want to insist that the public should not judge an entire profession by the conduct of the Simpson defense team. I agree.

    "But if you want to say the Simpson trial tells us nothing about the legal system because the trial was atypical, you may have missed something. I believe the abusive and misleading strategies employed during this trial were the product not only of lawyers' personal choices but also of structural forces within our profession."

    Alschuler classified the defense team's dirty tactics under three headings:

    _ Throw opposing counsel off their game;

    _ Find ways to get information and misinformation to the jury outside the courtroom; and

    _ Play the race card, especially in jury selection.

    Under the first heading, Simpson's counsel used a variety of methods to distract opposing attorneys. These methods included filing complex motions whose only purpose was to divert the prosecutors from trial preparation, feeding misinformation to the media, withholding defense evidence from prosecutors, and exploiting the prosecutors' personal problems.

    For example, Johnnie Cochran, Simpson's lead counsel, describes how the defense team noticed that Marcia Clark "was simply wearing down under the strain of an unsettled personal life. Darden's temper was wearing thinner. We began to look for ways to exploit that and one soon presented itself." Cochran boasts that the defense team goaded and taunted Darden into having Simpson try on the bloody glove, which gave the defense a victory when the glove didn't fit.

    "Nearly all the trial memoirs describe a barrage of personal insults and psychological button pushing," Alschuler says.

    Under the second heading, Alschuler notes, "Throughout the trial, Cochran and other defense attorneys held most of their press conferences at the end of the week. They called their press conferences 'pregnant Fridays' because they were confident that whatever information they released would reach sequestered jurors during weekend conjugal visits.

    "Of course, there's no law against holding press conferences on Fridays. Wouldn't you do it?" Alschuler asked.

    In another example, the defense attorneys changed the photographs on the walls of the Simpson estate before the predominantly black jury was given the chance to look at the home. A nude picture of Paula Barbieri, Simpson's love interest (who is white), was taken down from a spot near the fireplace in Simpson's bedroom. All other pictures of white women were also taken from the bedroom, and a framed picture of Simpson's mother was placed in their stead. Other pictures were taken down, and more were put up, mostly photos of Simpson's family that the defense team enlarged through color photocopying.

    "The Model Rules of Professional Conduct declare that a lawyer may not 'engage in conduct involving dishonesty, fraud, deceit or misrepresentation,' and the California Rules of Professional Conduct say that in presenting a matter to a tribunal, a lawyer shall not seek to mislead the jury by artifice or false statement of fact," Alschuler said.

    "Any misrepresentation in the Simpson estate, however, concerned a circumstance immaterial to the case. And what is the alternative? You wouldn't leave the nude photo of Paula Barbieri on the wall, would you?"

    Finally, Alschuler notes, the Simpson defense team was eager to play the "race card."

    The U.S. Supreme Court has repeatedly told attorneys not to consider race in picking jurors, Alschuler said.

    "My goodness, whom did the Court think it was kidding?" he asked. Jury consultants for both sides learned that black women were most likely to vote for Simpson's acquittal. Through challenges of prospective white jurors, the defense team ended up with eight African-Americans on a jury of 12.

    "Taking race into account when picking jurors is illegal," Alschuler said. "But in a case in which not only your own jury consultants but also every published public opinion poll revealed a striking black-white split on the question of your client's guilt, could you have ignored race altogether? Could anyone?"

    Alschuler suggests three ways to improve the legal profession.

    "First, we must strengthen the responsibility of judges to structure trials and restrain adversarial gamesmanship," Alschuler said. "Second, we should revise our rules of professional responsibility to reject more emphatically the view of criminal defense attorneys and others, that everything not forbidden by the law or by codes of professional conduct is required.

    "Finally, and most importantly, a system of justice must depend in substantial part on norms that cannot be captured in either procedural rules or rules of professional conduct."

    Repairing frayed professional norms isn't easy, he said. It is not as simple as passing a law. "What is wrong with the legal profession is also what's wrong with America -- a sense that most of the people around us are looking out for themselves and that we will be suckers unless we become a little like them," Alschuler said. The task of reweaving norms of civility, mutual trust and fair dealing must be done in small steps, primarily by setting the right example.

    "The weaker these norms, the more Simpson trials we will have," Alschuler concluded. "And the more Simpson trials we have, the less people will like us, and the less we will like ourselves."