Orenthal James Simpson decided to join the world of Twitter and, despite amassing more than 600,000 followers, received pretty much the unsupportive reception one would expect. While some remain his fans, the vast majority of people despise him as the murderer of Nicole Brown and Ron Goldman.
He was, of course, acquitted of the murders. He was found liable in a subsequent civil trial for damages, and was later convicted of robbery in Nevada, for which he was sentenced to 33 years imprisonment with parole eligibility after nine. He was released in 2017. But it’s not the robbery that inflames people against OJ; it’s the murders. The murders for which he was acquitted.
I could hear the dulcet whisper of my muse, Appellate Squawk, as I read comments about the loathsome and murderous OJ: But he was acquitted. He has never been found guilty of the murder of anyone, and yet here are people, lawyers, criminal defense lawyers, condemning him as a murderer. See the problem?
Indeed, I could. Like any relatively normal American, there was little doubt in my mind that OJ Simpson was involved in the murders of Nicole Brown and Ron Goldman. Yet, I try to be principled in my views, and few principles matter more than the presumption of innocence. And yet, here I was, and there were so many others, mindlessly abandoning the principle when it came to OJ. No doubt he isn’t the only acquitted defendant for whom broad societal condemnation ignored the presumption, but he was an excellent example to raise the problem, the inherent difficulty in holding tight to principle despite the belief, for many a certainty, that he is a killer.
So, fool that I am, I posed the conundrum on the twitters.
A test of principle. If the presumption of innocence remains intact for a defendant who’s acquitted, does it not hold for OJ?
It’s not whether you believe he’s guilty, or you’re convinced by the civil trial, but whether there is one rule for everyone, except OJ.
Most replies avoided the question, whether because confronting it was inconvenient or my interlocutors were unable to see a problem beyond their desire to rationalize their quasi-support for the “court rule” while enjoying their “right” to reject it personally. If you care to see who said what, you can read through the replies at your leisure. My purpose here isn’t to call anyone out.
A few remarkable things came of the exercise. First, many, and particularly lawyers, rejected the notion that the presumption of innocence is a principle at all, no less a foundational tenet of our jurisprudence. A typical response was that it was a legal technicality, a rule that courts had to apply, but not a principle that constrained any individual’s beliefs.* As one twitterer, whose bio ironically states that he “fights fascists,” responded:
People aren’t the state, Scott. We don’t have to presume a God damn thing.
And lest anyone think this is merely the vehemence of the insipid, some actively argued that the presumption of innocence was forced upon us by the the invisible hand of law in the sky, against our will and in conflict with our right to ethically believe whatever we want to believe.
The presumption of innocence, as you well know, is a device employed in the criminal law. It is not an ethical imperative that precludes any of us from reaching our own conclusions regarding who committed the double murder. I’ve reached mine.
It may be that this person was an eyewitness to the murders, and reached his conclusion from his own observations. But that’s not likely. And yet, despite acquittal,** is it correct to opine that there is no ethical imperative to prevent us, whether it be from watching every moment of trial or some lesser basis, from reaching “our own” conclusions?
Our society is grounded in certain legal principles. One is that the mechanism by which a person is found guilty is the legal system, whether by plea or verdict of guilty. Another is that until a person is found guilty, he is presumed innocent. As juries are instructed, that presumption remains intact until a guilty verdict, and if the verdict is not guilty, then the defendant enjoys the presumption of innocence thereafter. No, it’s not proof of innocence, but then, proof of a negative, that he didn’t do it, is rarely possible. This is one of the reasons for the principle, that placing the burden on the accused to prove innocence is untenable.
While this principle is embodied in our rules, it didn’t get there by accident. We embrace it because we believe in the principle. Do we still? Is it a principle when applied to someone we favor, but a mere legal technicality to be suffered when applied to someone we despise?
Most curious is how many people, even zealous advocates for the rights of the accused, are both certain and comfortable in their opinion that OJ did it. The question isn’t whether people have the “right” to believe OJ is guilty, or the right to reject the presumption of innocence when it comes to their personal conclusions. There is no rule of law prohibiting people from believing anything they want to believe, from space aliens to OJ’s guilt. This is America, and we’re entitled to our beliefs no matter how right or wrong.
But that wasn’t the question.
That so many fail to recognize the presumption of innocence as a principle, rather than a legal technicality that constrains the state but not them, is unsurprising. We want to believe whatever we believe, and we’ll say whatever we can get away with to rationalize why our desired outcome doesn’t make us hypocrites. If enough people agree, then it can’t be an ethical imperative and our circumventing principle has the popular seal of approval. We’re right, no matter how dubious our path to get there.
I don’t condemn anyone for believing that OJ is guilty, even though he was acquitted. I suffer from the same sin. Perhaps the only difference is that, upon reflection, I recognize that my belief about Orenthal James Simpson is a failure of principle on my part. And yet, no one who responded offered a rationale that allows me to deny it. I was tested and fell short. Appellate Squawk would be disappointed in me.
*The takeaway for criminal defense lawyers summing up is that while your jurors may accept in their minds that the presumption of innocence must be applied, they may believe in their hearts that the defendant is very much guilty. They may accept the rule, but they don’t believe it.
**A curious aside is that some characterized the acquittal as jury nullification, others as a condemnation of systemic racism by the LAPD, and others as prosecutorial incompetence. Does it matter? If the verdict is “not guilty,” do we get to second-guess why?