American justice, Hollywood style

Most see only the tragedy of OJ Simpson, but the country's legal system is also in the dock
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The Independent Online
In all but one respect, the American legal system is a beneficial force in society. The courts have replaced Congress and the churches as a moral debating chamber. In each of the unprecedented glut of high-profile trials in recent years, the country has been talking to itself about a crucial ethical issue. The William Kennedy Smith case was about "date rape" and America's relationship with the iconic Kennedy family. The Mike Tyson trial and the Clarence Thomas-Anita Hill Senate hearings were about race and sexual behaviour. Trials of those who murder staff at abortion clinics provide a national seminar on right-wing Christian extremism. Even the tawdriest of all these trials - the Bobbitt "severed penis" case - was a rough-hewn crucible for views on marriage and feminism. There is always an issue as well as a defendant in the dock. The problem is that the one respect in which the American legal system is not a beneficial force in society is in the delivery of justice. Because of this, the subsidiary moral issues for debate in the OJ Simpson case, which began in Los Angeles yesterday, may include race and domestic violence, but the main one is the viability of American justice. The law itself is in the dock.

The last American ratings-winning trial - also in California, and featuring the prosecution of the Menendez brothers for shooting off their parents' heads to quicken their inheritance - ended with hung juries. Their inheritance already spent on this inconclusive defence, the brothers are now on state legal aid as the question of how and where they might be tried again crawls through the courts. It is widely predicted that the Simpson case will also end in a question mark, after legal procedures lasting more than a year. The traditional American objection to the game of cricket has been that no sport was supportable in which a majority of games ended in a draw. However, a legal system developed to ensure a similar likelihood of no result may be regardedas a more serious matter.

The way in which a legal system is constructed is a statement of a nation's moral ambitions. Therefore, the way in which that legal system crumbles or corrupts is a revelation of that nation's moral flaws.

Britain's judiciary was nearly ruined in recent years by the old wound of Ireland - in cathartic revenge arrests and prosecutions of hastily assembled "terrorists" - and by the clubby Establishment understanding through which a crook like Robert Maxwell used libel writs and gagging injunctions to limit scrutiny. These are very English vices. American law has been destroyed by money, by the cynical media exploitation of reverence for the constitution, and by the country's cult of celebrity. These are classically American perils Let's follow the example of lawyers and talk about the money first. The initial principle of the advocacy system - that a jury must always hear both sides - has been replaced by the availability of the best defence money can buy.The brilliant cynicism of defence lawyers is not a new phenomenon but has reached its apotheosis with their recent work on behalf of the rich defendants in Los Angeles. Counsel for the Menendez brothers, Leslie Abramson, announces that they did kill their parents, but that this unfortunate event occurred because of sexual abuse by their father. Counsel for OJ Simpson - faced with the tricky evidence of a blood-stained glove at Simpson's estate matching one beside the bodies - declares that the cop who found it has a history of racism and planted it to frame the suspect. Defence lawyers do not have to believe that these things really happened. It is their job to put forward an alternative hypothesis from the evidence.

This cool ingenuity, mind-blank practicality, is well illustrated in the manipulation of the jury system. Here again, a simple legal principle - that the accused should have a hearing from civilian peers - has become a million-dollar science not far short of eugenics in its insinuating assumptions about the influence of race and background on a potential juror's likely verdict. A process of pre-emptive challenges to potential jurors - designed to counter the risk that random selection may result in someone being connected with the defendant - has developed into attempted trial-rigging through 100-page questionnaires, "jury consultants" and a kind of cross-examination previously reserved for the accused rather than jurors.

Judges can compensate for the financial and wiliness bias towards the defence of a rich man by being liberal about the admission of prosecution evidence, as Judge Lance Ito has done in the Simpson case: the inclusion of the football player's history of violence towards his late wife is a severe setback to his defence.

No judge, however, can do much about what American lawyers call "the pollution of the fact base". This refers to the practice by the American media, under the smirking protection of First Amendment guarantees of free speech, of offering money to eye-witnesses and waving new pieces of "evidence", alibis and alternative theories live on network television. Most of these leads melt like the cup of ice-cream near to the bodies which for, oh, a whole day, was trumpeted in news bulletins as vital evidence of the time of murder.

An optimist might say that the Simpson case, while no great advertisement for American jurisprudence, is a freak occurrence, that specific problems arise, particularly in media coverage and jury selection, because of the fame of the accused. The problem,though, is graver. The Menendez brothers were not celebrities until they were arrested, but their fame was almost certainly a factor in the refusal of juries to convict them. Because of court TV and the tabloid media, an increasing proportion of the accused are superstars by trial; the mother who drowned her two children in her car will be the next big case after OJ. And a really extreme optimist might take comfort in the sight of a black defendant receiving a scrupulously conducted trial. But, in truth, OJ's big-fee defence team merely reminds us of the contrasting treatment given to poor, unknown blacks by American justice.

The present case is routinely regarded in America as the tragedy of OJ Simpson. People - and perhaps even jurors - tremble at the possibility that a man may be about to lose his celebrity, the house, the cars, the ads, the lot. What the prosecution has to do is to make this story the tragedy of the victims, Nicole Brown Simpson and Ronald Goldman. It must establish in the courtroom the presence not only of one living god of athletics but also of two dead nobodies, who still had the right to continued life. If the prosecution can't do that - and if it should happen that a rich star has cashed in his money and fame in order to bamboozle a jury - then this will also be the tragedy of American justice.

It would be a deep one because - unlike judicial errors traceable to police interviewing procedures of forensic methods - there is no possibility of reform. The fault-lines are psychological. A country based around the temples of Wall Street and Hollywood would have perfected the legal system to fit its moral ambitions.

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