Saturday, June 04, 2005

Spectacle of the Decade

Looking at the Michael Jackson trial brings one ironic thought to my mind: can it really be ten years since OJ was acquitted? Ten years - and a large portion of the American public (or at least the media) still hasn't gotten over it. The case has been referred to as one of jury nullification, yet the record shows that the incompetence of the prosecution (who were apparently more interested in grandstanding for the cameras than in winning their case), and by the judge may have been responsible for the outcome. Simply put, the case dragged on too long, and the civil servants on the prosecution team were thoroughly out-classed, out-maneuvered, and out-lawyered by the defense team. The Judge did nothing to level the playing field. Marcia Clark and Chris Darden were the best friends O.J. Simpson ever had.

So the O.J. case has wrongly been decried as one of jury nullification. But what is worse is that the media hasn't learned anything in the meantime. They still think of trial by jury as a popularity contest.

Now, ten years later, and another black celebrity is in the dock: this time, one from the A-list. Yes, it's the king of pop himself! Michael Jackson is charged with four counts of committing a lewd act on a minor, one count of an attempted lewd act, one count of conspiracy involving child abduction, false imprisonment and extortion, and four counts of administering alcohol for the purpose of committing child molestation.

Yet what, according to Tim Molloy of the Associated Press, will decide the case? Whether Michael Jackson or the child's mother is "weirder." The concept that the jury could believe Michael Jackson likely IS guilty, but still have room for reasonble doubt, just gets left in the dust. Of course, with such media reporting (which is either irresponsible or ignorant) feeding into the psyche of the jury pool, how can we expect jurors to understand and follow the concept of "proof beyond a reasonable doubt"?

Well, the academic literature shows that juries fail to comprehend the concept of proof beyond a reasonable doubt. Prof. Lawrence M. Solan has written that "empirical studies and linguistic analysis strongly suggest that it is more difficult to establish proof by clear and convincing evidence than it is to establish proof beyond a reasonable doubt, even though our system regards the former as reflecting a lighter burden." This is because, according to Prof. Solan, clear and convincing evidence instructions "focus the jury on the government's burden, while [proof beyond a reasonable doubt instructions] focus the jury on the defendant's ability to come up with alternative explanations." See Lawrence M. Solan, Refocusing the Burden of Proof in Criminal Cases: Some Doubt About Reasonable Doubt, 78 Tex.L.Rev. 105 (1999).

We still just don't get it: it doesn't matter who is weirder. It doesn't matter who is more incredible. What matters is only whether the incriminating evidence is so credible that it leaves no room for rational dispute. If not, no matter how weird Michael Jackson may be, he must be acquitted.


At 3:06 AM, Blogger Ted said...

If what matters "is only whether the incriminating evidence is so credible that it leaves no room for rational dispute" then all of the "incompetence of the prosecution" in alienating the jurors in the OJ Simpson case is irrelevant, and the jurors committed nullification. Because no matter how unappealing and ineffective the prosecution's performance was in that trial, they did prove their case beyond a reasonable doubt.

At 7:05 PM, Blogger Clay S. Conrad said...

I'm not sure the OJ prosecution proved their case beyond a reasonable doubt. It seems bizarre to say they did, unless you were in the courtroom and insulated from the CourTV commentators, experts, blah blah blah.

There certainly were some gaping holes in the evidence. And the prosecution wasn't focused enough to sever the tainted evidence from the undisputed evidence. So they let a fatal blow to SOME of the DNA evidence kill off ALL of the DNA evidence, when it only should have killed off SOME.

And now we have the Houston crime lab, which is now revealed to have been involved in dry-labbing: coming up with test results without running the tests, and then testifying to those test results. DNA evidence is only as good as the scientists who run the tests and the cops who collect the evidence. So there were some pretty big flaws with the OJ evidence, and I find it difficult to simply dismiss the jury's verdict so easily as you seem to.

At 2:22 AM, Blogger Whistle B. Currier said...

Thanks Clay for maintaining this needed commentary!
I have suspected from the published verdict in the OJ Simpson trial that the jurors had so little confidence in the credibility of the prosecution evidence that they were sending a message to the police and the whole prosecution team that they had better clean up their act or there would be more murders allowed to walk.
In other words there was a lot of room for doubt because much of the evidence was likely tainted, i.e. manufactured.


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