FIRlnGLlne "IS THE O.J. SIMPSON TRIAL A SCANDAL?"

Transcription

1 The copyright laws of the United States (Title 17, U.S. Code) governs the making of photocopies or other reproductions of copyrighted material. If a user makes a request for, or later uses a photocopy or reproduction (including handwritten copies) for purposes in excess of fair use, that user may be liable for copyright infringement. Users are advised to obtain permission from the copyright owner before any re-use of this material. Use of this material is for private, non-commercial, and educational purposes; additional reprints and further distribution is prohibited. Copies are not for resale. All other rights reserved. For further information, contact Director, Hoover Institution Library and Archives, Stanford University, Stanford, CA Board of Trustees of the Leland Stanford Jr. University. 0 FIRlnGLlne HOST: GUEST: SUBJECT: WILLIAM F. BUCKLEY JR. MICHAEL TIGAR "IS THE O.J. SIMPSON TRIAL A SCANDAL?" FIRING LINE is produced and directed by WARREN STEIBEL. This is a transcript of the Firing Line program (#1053/2503) taped in New York City on July 11, 1995, and telecast later on public television stations. copyright 1995 FIRING LINE

2 MR. BUCKLEY: Perhaps the most arresting feature of this half hour is that it isn't a half hour recording the O.J. Simpson trial. But don't go away--it is a half hour devoted to the implications of the O.J. Simpson trial. And my thesis is that that trial is a scandal and finally illuminates the travesty of modern criminal procedure as it has developed. Our guest today is the renowned Michael Tigar. He is professor of law at the University of Texas, a scholar, a dramatist, an author, a sailor, a chef. In the past he has defended Abbie Hoffman and Rap Brown, David Dellinger at the Chicago Seven trial, John Demjanjuk, the accused Nazi war criminal, Angela Davis, and the estate of Orlando Letelier. He is most recently in the news as defense attorney for Terry Nichols, who is the No. 2 suspect in the bombing of the building in Oklahoma City. Somewhere along the line the criminal trial became not a procedure designed to establish whether or not the defendant did what he was charged with having done, but a gladiatorial contest between the defense attorney and the prosecution. Woven into the rules of that contest are attenuations on the Constitution and the common law, even as everything from clitoridectomies to chicken entrails evolved or were manipulated to be related to religious dogmas. The paradox is that the only thing today that stands between O.J. Simpson and justice is: the law. So, Mr. Tigar, can you, just to begin with, explain the length of the O.J. Simpson trial? MR. TIGAR: Well, your observation about it is the sort of typical leftist response to the spectacle of someone being able to purchase a large number of lawyers and get more than one would think is their fair share of the time and energy of the judicial system. I agree with you about that. If that's your point, that a-- MR. BUCKLEY: That's not quite my whole point. MR. TIGAR: --rich person can escape-- MR. BUCKLEY: My whole point is that [justice] shouldn't be purchasable. MR. TIGAR:: Ah, oh good. If we agree that the market should have nothing to do with the process, then the O.]. Simpson trial stands, it seems to me, as an 1

3 / arrow pointed in exactly the wrong direction. MR. BUCKLEY: Now don't treat me like the Supreme Court. MR. TIGAR: The scandal-- MR. BUCKLEY: If I have an expensive doctor over here and a not very good one over here and I can afford him, I don't expect him to take three times as long to take out my appendix. MR. TIGAR: Exactly right. MR. BUCKLEY: You're suggesting that the elongation of the trial has to do with the resourcefulness of the client. MR. TIGAR: That's factor one. The second factor is that somebody is permitting this delay, this elaborate, this elongated procedure to go on. If you go to the average criminal court--and you ought to; you've been there; you know about this-- MR. BUCKLEY: No, I haven't. MR. TIGAR: --you will see that the average criminal defendant doesn't get a fair shake in the system, that this vaunted adversary system, which has its values, which traces a long tradition in our system--one that I think for which you have respect-- MR. BUCKLEY: Okay, if you say-- MR. TIGAR: --doesn't work for most people. MR. BUCKLEY: : --don't get a fair shake, you are suggesting that a lot of innocent people are convicted. Now, I've never seen data that substantiate that. I've seen claims, but not data. I couldn't agree with you more that every effort should be made to keep an innocent person from going to jail-- MR. TIGAR: John Demjanjuk sat in a death cell in Israel for eight years based on an American procedure found to have constituted a fraud in the court. But that's not what's important. If your point is that there are things about the Simpson trial that say, Wake up America, we ought to be looking at the criminal 2

4 justice system, then you're right. MR. BUCKLEY: Okay. Can we discuss what America, having awakened, ought to ask for in terms of reforms? MR. TIGAR: Sure. I think that the first reform is that it is the presence of the media and the way in which the court has tolerated the activities of the media that's contributed a great deal to the atmosphere in the trial. It has affected the behavior of all of the participants. Second, because the trial is televised--and because the judge felt he had no alternative but to sequester the jwy; thus you have jurors locked up under the supervision of police officers, and they either develop a resentment of their captors or the Stockholm Syndrome love of them, which further distorts the process. So the trial, however it comes out--and I have no opinion abm.~t whether Mr. Simpson is either guilty or innocent; I'm not here to express one--but, however-- MR. BUCKLEY: I'm not asking you to express it, but how can you have no opinion? I mean, you would have to be deaf, dumb, and blind to have no opinion, and you're not. MR TIGAR: I have studiously--because I am a professor I guess "studious" is the right adverb--avoided watching it. I haven't watched the television coverage of it, I haven't looked at the DNA evidence-- MR. BUCKLEY: Have you watched the sun set or the moon rise? Because you can still predict that the sun is going to set tonight, can't you, and the moon rise? MR. TIGAR: Oh yes, but based upon a study far deeper than I have done about that case. The point is that you have opinions about it and you have published them and that's your privilege. Nobody--some 30 years of trying cases tells me that unless you sit there and see the case the jury saw, you haven't seen the case. MR. BUCKLEY: Well, may I question you on this, because once before we had a discussion that touched on that question. What I mean to ask you is this: Are the enormous elongations to which we are subjected, for instance, in Los Angeles, illuminating in respect of the basic question, Did he or did he not do it? My point is: They're not. And that under the circumstances, the criminal process has become something other than an epistemological inquiry. 3

5 MR. TIGAR: The criminal process in that particular case is one that you criticize. The criminal process is, for most defendants involved in it, far more jiffy justice than permits the orderly inquiry into questions of guilt or innocence. So the main fault of the criminal process as it exists today is not the faults that one sees in the Simpson trial. The fact is that if somebody were to retain me to conduct a criminal defense in a highly publicized case--if someone were to do that--i would resist the idea of television in the courtroom. I think it affects the behavior of the spectators. Second, who was it quoted in The New York Times as saying, you know, "One lawyer, one alibi, one hairdo." It's not a good idea to try your case on five or six or seven or eight different theories with five or six or seven or eight different lawyers. Judges ought to be in control of what goes on in the courtroom. I did yesterday,.i was forced to. I was at O'Hare Airport watching Marcia Clark cross-examine. Marcia Clark couldn't cross-examine her way out of a wet paper bag with a pound of C-40 and the Jaws of Life. This completely incompetent performance took five times as long as it should. So it's not just the defense. These lawyers aren't respecting the rules of orderly inquiry to which you made reference. They are indeed engaged in some other process that doesn't truly reflect those rules. MR. BUCKLEY: Well, but the excesses, which we both acknowledge are presumably permitted by the judge: I remember a sequence in which the witness said, "I saw and heard nothing between 4:50 and 5:00," whereupon the defense attorney says, "Well, does that mean you heard nothing at 4:51?" Well, no. "You heard nothing at 4:52?" And on we go. At least we knew he could count from 4:50 to 5:00. [laughter] Why doesn't somebody say, Shut up. He said, Nothing between 4:50 and 5:00. MR. TIGAR: Well, I think the majority-- MR. BUCKLEY: Now-- MR. TIGAR: The majority of judges would cut off that line of crossexamination. MR. BUCKLEY: As a professor of law, do you feel free to criticize Judge Ito or only Marcia Clark? MR. TI GAR: No, I think Judge Ito is-- MR. BUCKLEY: A disaster? [laughter] 4

6 MR TIGAR: No, I wouldn't say a disaster. I think Judge Ito has not controlled that courtroom in a way that we would expect a judge to do. Now I take a great risk when I say that, because the majority of judges with whom I have had problems are ones who cut off cross-examination too early rather than letting it go on too long. But yes, there is that problem. MR BUCKLEY: You're a scholar, so tell us,' as I began by asking you-- If this were, say, held in Great Britain, I have been told it would have lasted two or three weeks. Two questions: No. I, is that correct? No. 2, how would a judge actually act to shrink what we're going through to two or three weeks? MR. TIGAR: I don't think it would last as short a time as two or thee weeks, even in Great Britain, in part because the style of cross-examination is a little bit more, shall we say, indolent and dilatory over there than we are accustomed to in this country. Certainly many judges across the United States would have gotten this case in and before the jury within a couple of months--eight trial weeks is about all it ought to tal<.e. And one way judges can do that is to bring the parties up and say, Look, your direct-examination is taking too long. I want you to shorten it, I want you to get your exhibits ready. Cross-examination, when it gets repetitious--although asked-and-answered is not a proper objection- the judge can control that. Some judges have gone to the business of saying, Look, I want both sides to tell me about how much time they need here and we'll make some estimates and then we'll hold the parties to it. Another way is to say only one lawyer on a witness, that you will regulate the conduct of lawyers by forbidding multiple objections. Another way is for a judge to be selfconfident enough to rule on objections without having endless arguments every time there's some matter that's objected to. Because every time you do that in a televised case, you have to send the jury out, whereas if the judge forbade speaking objections--just to stand up and say, "object"--if I want to hear more about it or if I can't understand what you're objecting about, I will ask for argument and then rule on the objection and move forward. MR. BUCKLEY: Well, will you concede that the exploitation of these liberties is built into the system and that under the circumstances we ought to think about revising the system without bringing out the argument that there is too much jiffy justice, which is unrelated to the point I am seeking to mal<.e. In other words, the kind of thing that happens in that courtroom can't be blamed exclusively on Judge Ito. It's got to be blamed on a system that is otherwise oriented than merely to asking did the guy do it? 5

7 MR TIGAR: I completely disagree with that. No, I will not concede that point. You wrote--you have written a number of things about the procedural rights of defendants, Miranda warnings and search-and-seizure and so on. See, that has nothing to do with this process. A trial really is about truth. That is to say that when the lawyer asks questions on direct-examination and the crossexaminer cross-examines, that's the adversary process, that's the process of debate formalized--the very process that you in your daily life rely on to get at the truth and find out--to test people's opinions. So the system, as a concept, as an idea, doesn't require the concession that you seek. MR BUCKLEY: But how can you say that Miranda and those other rulings didn't figure when days were spent, for instance, arguing whether the bloody glove could be brought into evidence because there hadn't been actually a writ by a judge authorizing a search-- MR TIGAR: No, it's called a warrant-- MR. BUCKLEY: --of the premises. MR TIGAR: --and it's in the Fourth Amendment. And as a result of cases in 1772, familiar to the framers of the Constitution and of the Declaration. It was thought that a warrant should be necessary before you get permission to search somebody's house. MR. BUCKLEY: And in the Constitution. MR. TIGAR: You're not talking about overthrowing that, are you? [laughter) MR. BUCKLEY: No, in the-- Well, I am as concerned to refine it as the people who wrote into the Constitution-- MR. TIGAR: Right. MR. BUCKLEY: --who put in word "unreasonable." MR. TIGAR: Ah, but-- MR BUCKLEY: Unreasonable search-and-seizure is forbidden, but reasonable search-and-seizure is not forbidden. 6 I

8 MR TIGAR: Oh, but Bill, wait a minute. But as a matter of the text of the Fourth Amendment, the warrant clause is not qualified by the term "reasonable." But regardless of that, hearings on search-and-seizure are separate, I think, from this elongation of the trial. There is nothing that says that a search-and-seizure hearing has to take forever. Sure, it could be made shorter. We are talking about techniques that judges can apply to make trials run more efficiently while still preserving the right of the parties to be heard on issues that concern them. I don't think that that's such a revolutionary concept. MR BUCKLEY: Well, I think it's revolutionary that the process of establishing guilt should have become, as one judge put it, an incredibly difficult affair.!liitlf!l}gj in said, "The rules of evidence are designed to enable the court to reach the truth, and in criminal cases to secure a fair trial to those accused of crime. Evidence obtained by an illegal search-and-seizure is ordinarily just as true and reliable as evidence lawfully obtained." Now we both know that under the law if it unlawfully obtained, it is not admissible. Now this argues against the primary purpose of the procedure, which is to establish guilt or innocence. MR. TIGAR: Oh no, that was where you started. The procedure of a trial, once the jury is seated, is about the guilt-innocence determination. MR. BUCKLEY: Theoretically. MR. TIGAR: The concept of the criminal justice system and the exclusionary rule to which you refer is something else entirely, because the people who wrote the Constitution understood very well indeed that it was when the stakes were highest that the government was most tempted to step on the rights of citizens, and that therefore a way of deterring the government from doing that was to impose some barrier to the use of their fruits of their own illegal conduct. MR. BUCKLEY: This is-- MR. TIGAR: Does it mean-- MR. BUCKLEY: --so illuminating an epiphany that it took 185 years for the Supreme Court to discover it. MR TIGAR: No, it didn't take 185 years for the Supreme Court to discover it, because in fact, you are referring to Mapp v. Ohio, in which the rule was applied 7

9 to the states. There the court had always been unsure about whether they had the power under the Constitution to apply the Fourth Amendment to the states under the 14th. The notion that unlawfully obtained evidence should not be used, as a notion, was abroad in the land in the end of the 18th century, and indeed the protests against unlawfully obtained evidence were what led James Otis to make that speech in 1761, of which Adams said, Then and there was the child Independence born. MR BUCKLEY: Well, I have no doubt that the defense attorneys for Aaron Burr tried to stretch all the provisions of the Bill of Rights as far as they could. But it is a fact, acknowledged as such, that something happened between when Leon Czolgosz assassinated the president of the United States and was electrocuted nine weeks later, and a situation when Ted Bundy kills 33 people and it takes 16 years to fry him. Now I think you ought to account for this. You can't blame that on television, can you? It is notorious that the administration of justice has been slowed down as a result of the ideologization of the whole defense sequence. MR. TIGAR: The Bundy case turns out not to be a very good example, nor does death penalty jurisprudence turn out to be a very good example. I am handling a death penalty case right now in which the delay was caused by the state. The case is 16 years old, most of the delay caused by the state. In John Demjanjuk's case, had the Israeli Supreme Court not delayed a long time in chewing over the evidence, as Demjanjuk said, "I'd be hanging a long time now," because we hadn't had the chance to come and show that the conviction was unlawfully obtained. So-- MR. BUCKLEY: That was a pretty complicated situation. It was kind of sui generis. We don't want to plead that particular case as giving light to what we're talking about, do we? MR TIGAR: Well, Demjanjuk certainly did. [laughter] MR. BUCKLEY: I mean, there was the constitutional question about the law that-- MR TIGAR: Well, as well as the question-- MR BUCKLEY: --exported him to Israel and-- 8

10 MR TIGAR: No, there was the prosecution withholding of evidence. Then there were cases--the case in Texas such as Adams, in which the prosecution withheld exculpatory evidence; the wrong person sits on Death Row all those years. The point is this. You and I, as persons of good will, would agree that unreasonable delay is wrong. You and I, as persons of good will, would agree that the truth-seeking process ought to have a primary importance. I think where we part company is that you started the program by saying that the Simpson case reflects that the whole thing is rotten to the core and ought to be overthrown--the kind of polemical style we associate with the young William Buckley of 1950 [laughter] and not the more mature and conservative William Buckley. MR. BUCKLEY: Who, by the way, was prophetically correct about everything he said. [laughter] MR. TIGAR: Well, I'm glad that you have found that out. But-- MR. BUCKLEY: When people say if O.J. is acquitted there is going to be a demand for reforms, i.e., people know he's guilty and if he's acquitted they know the system doesn't work. They knew the Menendez brothers shot their mother and father, but all of a sudden we have a court of law saying, oh, they didn't. MR. TIGAR: No, we had a hung jury. MR. BUCKLEY: A hung jury, yes. Now, nothing since the last eclipse of the sun has been more obvious than that the Menendez brothers killed their mother and father. Now when people say there will be a demand for reform, my question to you is, What will that demand crystallize in? What reforms will be asked for by exercised, judicious, bright people? MR TIGAR: I think that people will insist that-- MR. BUCKLEY: Television? MR. TIGAR: --that the use of television in highly publicized, big-name trials be limited in ways that don't affect the process. We find that jury sequestration produces tensions that make it a very bad idea indeed. More and more judges will see that it is possible to control your courtroom. But you see, I think your premise is flawed. The fact is that you can point to people who in 9

11 your view were probably guilty, and you can say, Look, the jury acquitted him, or the jury didn't agree; it was a hung jury, the answer to which is that the requirement of proof beyond a reasonable doubt is designed to produce errors that run in that direction as opposed to running in the other direction. So the fact that you can point to a few people that you don't think should be acquitted really doesn't advance the inquiry, does it? MR. BUCKLEY: I guess I am trying to say something a little bit different, which is, as I view it, for instance, you have the two Menendez brothers who obviously killed their parents. They agreed, they said they did it. MR. TIGAR: And they could hire lawyers. MR. BUCKLEY: So the question is, should they be found guilty of killing their parents? And this all of a sudden ends us up in a kind of a sociological/psychological morass, in which people are trying to decide whether Mrs. Menendez was nice enough to her kids when they were seven and nine, which to me, an outsider, doesn't answer the question that they killed them. MR. TIGAR: Oh, wait a minute. But see, once again you are at war with 500 years of legal tradition. The gradations of homicide, which recognize certain kinds of killing in heat of passion less worthy of punishment than do coldblooded deliberate killings; that distinction has been around for a long time. The point is this. What I fear is that the people in their weeping bear the iron hand, that all of this Simpson business, and Menendez--all of the sentiments that you have expressed, with only some of which I have agreed, by the way--is going to lead the Congress to cut funding for poor people that are accused of crimes and so they don't get a chance for a defense, to continue along the road so that-- MR. BUCKLEY: Why should I cut money for poor people? MR. TIGAR: What?... MR. BUCKLEY: Why would any reform that I have ever heard of ask that you cut funding for poor people? MR. TIGAR: For poor people's defense? 10

12 MR BUCKLEY: Yes. MR. TIGAR: That's the proposal of Senator Gramm and Newt Gingrich, is to-- MR BUCKLEY: But you're talking about those-- MR TIGAR: --completely eliminate funding for the resource centers and to cut funding for defender services and so on, so that the spectacle of people being able to purchase high-priced defenses goes on, and the real victims of the process are the poor who cannot afford to hire even one lawyer. MR. BUCKLEY: Mr. Tigar, what you are talking about is a very ancient question faced by Ronald Reagan when he became governor. What he said was that the legal help service institution in California had become an ideological arm of the radical movement. They began by saying nobody is guilty of anything, and that under the circumstances their act should be cleaned up. And a lot of evidence I think substantiated his particular charge. But I don't think you should confuse that with the notion that people are against public funds to be used for poor people. MR. TIGAR: Well, I am afraid the Republican majority is attempting to cut the funds for the defender. But you see, your premise is wrong. I think Reagan was talking about lawyers in civil cases. If I am appointed to defend somebody, don't you think it's right that I should take the position that he pleaded not guilty and that we'd better make the government prove it? I mean, who else is going to be on that person's side? What other ideological stance would you like me to take in the defense of someone? MR. BUCKLEY: No, 1-- MR. TIGAR: Should I show up like some Soviet lawyer and say, Well, I'll just do the state's bidding and, you know, "crook the pregnant hinges of the knee where thrift may follow fawning." MR BUCKLEY: What an interesting thought. [laughter] MR TIGAR: That's Milton. [sic] John Milton, not Milton the guy that served us at lunch. 11

13 MR. BUCKLEY: I am saying there has been an abuse of process visible in the extraordinary length of time that it now takes to establish "simple" guilt, and that one of the reasons for this is the attenuation of the objective; The objective is, Did you do it or did you not do it? What you're talking about is whether the writ was issued at 12:03 or 12:02 and you are quite understandably taking advantage of every loophole that you can, but let's understand that's what you're engaged in. MR. TIGAR: Oh, no. You see, the problem is that you know of people--for instance, Senator Hutchison--who was charged with a crime; she was innocent. Now we in that case-- MR. BUCKLEY: And you defended her, yes. MR. TIGAR: I did. I did. It's a problem for a conservative to be indicted. It induces cognitive dissonance, because I'm sure that--and John Connally, the same thing, the same thing--that out of that process, that terrible process, both of them I think understood very well that this business of holding the government to its promise of fairness, of making sure there could be no verdict of guilty except one arrived at by means fair, just, decent, and right, and based upon evidence that met the proper standard. That notion, which is what defense lawyers are supposed to be about, that's what I'm talking about. Far from being an attenuation, I think that's an affirmation. MR. BUCKLEY: My problem is that we have a system in which half the jurors say the Menendez kids didn't kill their mother and father. And a situation like that suggests a posteriori that it isn't working. Thank you very much, Professor Tigar; thank you, ladies and gentlemen. 12