We are approaching the 25th anniversary of the verdict of “not guilty” in the OJ Simpson trial. Why did OJ go free? Simply put, because DA Gil Garcetti intentionally lost the case. A thread. 1/

Of course, nowadays Garcetti gives interviews where he claims how outraged he was at the whole thing. But at every decision point, when he (and any DA) would have played hardball against any other defendant, Garcetti made sure that Simpson would get acquitted.

We will discuss those decisions herein. 3/

I am sure you would ask, why would he do such a thing? Well, there were a combination of prudential and electoral concerns. The prudential concern was that LA really was a powder keg back then. 4/

The 1992 Civil Unrest was still in everyone’s memory, produced by not guilty verdicts against the officers who beat Rodney King, a clear act of nullification by a mostly white Simi Valley jury. 5/

There were also memories of a whole bunch of other racism in the justice system- LAPD cops saying racist things over their communications systems, for instance. 6/

The justice system did not give the grocer who shot and killed an innocent black 15 year old girl, Latasha Harlans, with any prison time., and the Christopher Commission report identifying a whole bunch of racist cops who the LAPD had never effectively disciplined. 7/

And for better or worse, the Black community in Los Angeles made OJ Simpson into a civil rights issue. 8/

Despite the fact that his guilt was clear, prominent LA Black leaders, from the clergy, the civil rights legal community, and Black newspapers and radio stations, all decided from the start... 9/

that no matter what the evidence showed, the narrative was going to be of a Black man being railroaded by the justice system. 10/

I am not being judgmental about this. We can save that for another thread. But it clearly happened. 11/

The people who might have, in a different world, been willing to say “forget it, this guy is guilty, he’s not worth defending” (or even “forget it, he’s done nothing for his community, he’s not worth defending”) didn’t say that. 12/

Rather, they demanded that OJ would not be convicted of murder. 13/

And importantly, these folks were Gil Garcetti’s constituency. Garcetti was novel at the time- a “progressive” DA who ran on a platform of social liberalism. 14/

He argued to LA’s Black communities that they had gotten a raw deal from prior “law and order” prosecutors, and that he would do better. At the time, Garcetti was also touted as a possible future mayor (a position his son eventually achieved). 15/

At the time, the Mayor of LA was a conservative Republican, Richard Riordan, so the possibility that a prosecutor like Garcetti might put together a coalition of Blacks along with some moderate Democrats to run against Riordan was conceivable. 16/

So Garcetti knew the score. He feared civil unrest if Simpson was convicted, and he also knew that a conviction would mean the end of his political career as Blacks would blame him for it. 17/

On the other hand, he obviously couldn’t just refuse to charge a double murderer. So what he had to do was look like he was trying while ensuring Simpson’s acquittal. And that’s exactly what he did, through multiple decision. 18/

The first major decision was to ensure a jury of Simpson’s peers did not judge him. 19/

Under the US Constitution (through a provision that, admittedly, has not been “incorporated” in the states and thus did not apply to the Simpson prosecution), you are supposed to be tried in the district where the crime occurred. 20/

The purpose of this is common sense- it is supposed to be a jury of your “peers”. In many cases, this requirement is protective of defendants. 21/

For instance, a really easy way of getting even more innocent Black people convicted or sentenced severely would be to move their trials out of their own communities and try them in the white suburbs. 22/

In the federal system, that’s clearly unconstitutional, and it would be despicable if a state court system did this either. 23/

But the “vicinage” requirement also protects the rights of the public. A classic example of this is the Simi Valley jury that acquitted the Rodney King cops. That beating occurred in Lake View Terrace, a relatively unpopulated area. 24/

The nearest population centers are Sylmar and San Fernando, both diverse communities. A jury out there would have been very diverse. Instead, it was moved to Simi Valley, a lily-white community where a lot of cops lived. 25/

And clearly guilty defendants were acquitted as a result. 26/

OJ Simpson had lived in Brentwood, in West LA, in an all-white neighborhood, for almost two decades before the murder. Those were his peers. Note this isn’t an all-encompassing Bernie-bro “class not race” argument. 27/

There are wealthy Blacks who live in places like Crenshaw, in judicial districts whose jury pools would create juries like the OJ jury. The issue is that the “jury of your peers” is produced by where you live. 28/

That’s what it says in the Constitution, and that’s the correct principle. OJ Simpson decided he was most comfortable living in the world of rich white people. 29/

And yet Gil Garcetti decided OJ would be tried by people from communities he would never live in, and never interact with. 30/

Gil Garcetti decided to try Simpson in Downtown LA, where he we would be assured a jury filled with working class Blacks who would, according to the jury research and consistent with what their community leaders were urging, acquit him. 31/

The alternative was the Santa Monica courthouse, near Brentwood, with a relatively wealthy jury pool with many of Simpson’s peers in it. 32/

Prosecutors have offered a bunch of excuses about how Santa Monica could not handle such a big trial, the grand jury that was hearing evidence against Simpson was downtown, and other such things. 33/

But they are insulting our intelligence. Garcetti knew that he could not win the case with a downtown jury. He also knew that the crime took place in the Santa Monica judicial district, so it was supposed to be tried there. But Garcetti didn’t want a conviction. 34/

The next major decision Garcetti made was whether to seek the death penalty. I am opposed to the death penalty. I favor its abolition. But as of now, it is a lawful punishment for murder, and big city DA’s in California sought it all the time. 35/

There’s two aspects to this. First, if you believe in the death penalty at all, the Nicole Simpson-Ron Goldman murders called for it; there were several aggravating circumstances. It was a double murder. 36/

It was a torture-murder- because Simpson used a knife, his victims’ last moments were incredibly painful. Simpson slit his ex-wife’s throat all the way down to the vertebrae- he almost decapitated her. 37/

And Simpson’s killing of Goldman was an obstruction of justice; he killed him because he was a potential witness to the killing of Nicole who had to be eliminated. 38/

Compare OJ Simpson to Scott Peterson, who not only was charged with capital murder, but received the death penalty. We have no idea how much Laci suffered or even if she suffered at all. 39/

It was technically a double-homicide, but really this is only because of abortion politics; the second victim was a fetus in utero. 40/

There was no motive of obstruction of justice; Peterson was a first time offender, unlike OJ, who had committed multiple prior misdemeanor beatings of his wife. 41/

(It doesn’t matter whether only one incident was charged; prosecutors can consider what you actually did, not only what you were charged with.) Also, there was much less evidence of Peterson’s guilt. 42/

There’s a certain subjectivity in death penalty decisions, but seriously, if you believe this is a proper punishment for the worst murders, Simpson should have obviously been charged with capital murder. 43/

Further, though, Garcetti should have sought the death penalty even if, in the end, his prosecutors might only go for life imprisonment, and that is, death penalty juries have to be “death qualified”, i.e., not opposed to the imposition of the death penalty. 44/

So if you seek the death penalty, you get a more conservative, “law and order” jury. Indeed, any juror who said “I can’t vote to execute OJ Simpson” would have been off the jury. 45/

Refusing the seek the death penalty made zero sense other than as a decision to intentionally lose the case. 46/

Importantly, the actual decision to not seek the death penalty was even more questionable than I just portrayed it. Garcetti actually met with Black community leaders who told him he was not to seek the death penalty. 47/

One of those leaders was Johnnie Cochran, who was posing as a community representative but was at the same time negotiating with Simpson to enter the defense team. 48/

In other words, Garcetti actually let a DEFENSE LAWYER lobby him to reduce the maximum sentence and to choose a jury that would be more likely to acquit a double murderer! 49/

Those two decisions probably sealed the acquittal. But Garcetti didn’t stop there. California requires that when the grand jury is disbanded (as it was in the Simpson case due to excessive publicity), the prosecutors proceed by means of a preliminary hearing. 50/

However, under a law enacted in 1990, prosecutors need only put on some hearsay testimony to show there is sufficient evidence to go to trial. This is a VERY minimal requirement. 51/

No case that I can remember was dismissed over the prosecutor’s objection at a preliminary hearing for insufficient evidence. 52/

In the Simpson case, all they had to do was put on a police detective saying they found blood drops to the left of the murderer’s shoes and Simpson’s hand was cut on his left middle finger, and that would have been enough. 53/

Probable cause to bring a defendant to trial is a very lenient standard. 54/

Instead, Garcetti decided to put on a ton of evidence at the preliminary hearing. This gave the defense a free preview of all the evidence at the beginning of the case, and locked prosecution witnesses into their stories only a month after the murders. 55/

Most importantly, a huge portion of what became Barry Scheck’s arguments about evidence planting was based on the mistaken testimony of a police nurse at the preliminary hearing (he said he took 8 ml of OJ’s blood, when he actually only took 6.5 ml;... 56/

Scheck falsely claimed there was 1.5 ml of “missing” blood” that was somehow carefully deposited all over the crime scene at a time when there were television cameras blanketing Nicole Simpson’s condominium.). 57/

I’ve litigated cases for 25 years. Nobody voluntarily gives the other side sworn testimony when they don’t have to. Nobody EVER says “sure, take early depositions of all my witnesses before we know what your contentions are”. 58/

Garcetti did this because he WANTED the defense to lock in his witnesses’ testimony so that the defense could harp on later inconsistencies at trial; all the better to ensure the double murderer got acquitted. 59/

Garcetti continued to cook the goose as the case went on. OJ Simpson famously went on the lamb after a warrant was issued for his arrest. 60/

His friend, Al Cowlings, loaded him into a car with a disguise, a passport, and thousands of dollars and then, when they were discovered by law enforcement, refused to pull over... 61/

and led numerous police cars, demanding he pull over, on a merry chase over 50 miles of LA freeways. Notably, this was not accidental; it was carefully planned. 62/

Cowlings helped sneak Simpson out of his house when it was under police and media surveillance, and Simpson’s employees, including lawyer Robert Shapiro and therapist Saul Fairstein, refused to tell the LAPD where he was located when a warrant was out for his arrest... 63/

(he was at the house of his longtime friend, Robert Kardashian). 64/

Cowlings specifically almost certainly knew all about the details of Simpson’s murdering Nicole and Ron; even if he didn’t, though, he definitely knew all sorts of facts that would have hurt Simpson in the case. 65/

He knew a lot about the beatings of Nicole, he knew about whether Simpson had been dumped by Nicole and was upset about it, etc. Any competent prosecutor would have brought the hammer down on Al Cowlings. 66/

Charge him with felonies and misdemeanors. Everything from harboring a fugitive (he knew Simpson was wanted to murder) to failing to pull over. Threaten him with serious prison time. 67/

And while you're at it, you can play real hardball. Charge Shapiro. Charge Kardashian. Charge Fairstein. Put these people in a situation where it’s either their butt or OJ. And then offer a deal if they tell everything they know about Simpson. 68/

Prosecutors do this all the time. But none of these people- not even Cowlings, who was obviously, certainly guilty, were charged. Because Garcetti wanted to make sure Simpson was not convicted. 69/

Another example of where the fix was in concerned Mark Fuhrman, the racist perjurer (who was also, to be sure, a skilled detective) whose false testimony derailed the trial. The prosecutors argued that Mark Fuhrman’s infamous use of the n-word should not come into evidence. 70/

This is a fascinating issue. I had a case where an important player had used the n-word, so I researched this issue. And the law is absolutely clear- it doesn’t come in unless it is absolutely necessary to the case. What do I mean by this? 71/

But a lot of evidence in court cases does not have direct relevance; instead, it is minimally relevant. For instance, the fact that OJ Simpson was a former football player had some relevance. 72/

It showed why he couldn’t dispose of evidence and had to take the bloody glove onto his property where he dropped it, for instance- he was famous and did not want to be recognized. 73/

But with respect to minimally relevant evidence, the rule in both state and federal courts is that where the prejudicial impact of evidence substantially outweighs its probative value, it is excluded. And this has specifically been applied to the n-word. 74/

The n-word is obviously highly prejudicial. It makes juries hate any non-Black who says it. So cases universally hold it doesn’t come into evidence unless it is centrally relevant. 75/

So when Judge Ito ruled that the defense would be allowed to let the n-word into evidence (after a famous argument by Johnnie Cochran which correctly argued that Black jurors were able to process the word but... 76/

completely ignored the actual controlling law that held it couldn’t come in), Garcetti had a very strong case to file a “writ” petition, where the Court of Appeal will overrule a clearly erroneous decision of a trial judge. 77/

Not only was the prosecution likely to win this, but succeeding in a writ petition scares the trial judge. It sends the message that Judge Ito needs to be aggressive in keeping out irrelevant evidence. 78/

But Garcetti decided that he could not be seen by his Black constituents as keeping out the truth about Mark Fuhrman. So again, he let the defense have the ruling, which of course set in motion the course of conduct that led to Mark Fuhrman lying in court. 79/

Fuhrman plays a role in the final act of Garcetti in intentionally losing the case as well. At the end of the case, the entire prosecution team admits they were almost sure they were going to lose. 80/

They had seen how the jury hated them and loved the defense lawyers, and they had seen their own mistakes blow up in their face... 81/

(such as the glove demonstration, where Simpson was allowed to try on the bloody murder gloves in front of the jury and was able to make them look like they did not fit when they were clearly his gloves). 82/

But they were given a freebie. Mark Fuhrman, on the famous tapes where he said the n-word and bragged of planting evidence, also said incredibly disparaging things about Judge Ito’s wife, a police captain who was one of the highest ranking women in the department... 83/

and a woman who broke down barriers in the LAPD. 84/

As you might imagine, someone with Mark Fuhrman’s politics wasn’t going to like the LAPD’s efforts to hire more women, and he especially hated York, who was a supervisor of his for a time and who he specifically said very nasty things about in his taped conversations. 85/

Here’s the thing though. Judge Ito, who clearly wanted the Simpson case and reveled in his celebrity status, had to submit a declaration from his wife to get the case. His wife swore under oath that she did not remember Mark Fuhrman. 86/

It is pretty clear given the detail of Fuhrman’s recollections of her that she was lying. Which means Ito should have never been on the case. 87/

And Ito was then called to decide the admissibility of those tapes, with the insults of Capt. York on them. Ito was clearly conflicted out of the case.
This was an easy one for the prosecutors. You are losing the case. You have made mistakes. You have a jury that hates you. 88/

And by the way, you have a trial judge who made a lot of bad rulings that harmed the prosecution, from letting the n-word issue in, to allowing the jury to traipse around Simpson’s house with all of its trophies and football memorabilia... 89/

even though it had nothing to do with the murders. And now you can replace the trial judge and likely get a mistrial and start over again. You take it! The only prosecutor on the planet who wouldn’t have taken this was Garcetti. 90/

And notably, he almost certainly overruled his own prosecutor, Marcia Clark, on this decision. Clark said that she was going to seek Ito’s removal. A brief was written arguing it was mandatory. 91/

The next day, Clark told Ito that the prosecutors changed their mind and would keep Ito. Garcetti could not allow Simpson to be convicted. 92/

The last example comes after the acquittal. Garcetti of course pushed the narrative that they did all they could. That they had no control over it. The jury did what it did. 93/

But 1-2 years after the trial was over, OJ Simpson sat for deposition, and then testified at his civil trial. Simpson lied, over and over again. He obviously lied and denied committing the murders. But he lied about other stuff, including obvious things. 94/

For instance, most famously, he said he would never wear those “ugly ass” Bruno Magli shoes that the murderer did. But then Dan Petrocelli’s civil litigation team produced photos of him wearing the shoes he said he would never wear. 95/

And he also said, incredibly, that he never once hit his wife- the number of people who witnessed him hitting Nicole is well into the double figures. 96/

Garcetti had a slam-dunk perjury prosecution. Multiple counts. The perjury occurred in the Santa Monica judicial district- so he could have gotten a Santa Monica jury. 97/

Potentially, this could have meant over a decade in prison, if he got a maximum sentence (quite possible, given he got away with a double murderer). 98/

Garcetti didn’t even charge Simpson. He charged Mark Fuhrman with perjury (as he should have), but not Simpson. Putting OJ in prison was something that Garcetti was implacably opposed to doing. 99/

So if you wonder why it was that it was only when OJ did something in Nevada that he was finally seriously punished, that’s your answer. We had a DA who decided his own career was more important than prosecuting double murderer. 100/

And somehow he has never come in for the blame he deserved. EOM/