Subsection 2.6.  Preliminary Hearing or Grand Jury Hearing

 

In a felony case, before the government acting as prosecution has developed a minimum of reasonable evidence, it cannot file casually criminal charges against a defendant.  It must adhere to a criminal process to established reasonable preliminary evidence before it can decide to prosecute.

In California, the prosecution can choose one of two procedures to commence during prosecution: either have a grande jury hearing, or have the judge preside over a preliminary hearing.  

 

The grand jury is so called merely to distinguish it from the jury (sometimes called the "little jury") in the general trials. A grand jury is formed by the prosecution, drawing from the general public. The numbers vary, ranging from eleven to twenty three people. It is usually an odd number because the purpose of the hearing is decided by the votes of the jurors to determine if an indictment should be filed against a defendant. The grand jury hearing is not public. The defense lawyer cannot attend. The prosecution presents evidence before the grand jury who would decide if "probable cause" has been established to file an indictment against the defendant.

 

The prosecution can choose the other procedure, that is, a preliminary hearing in a lower district court open to the public. This procedure is sometimes translated as "preliminary trial". In a preliminary hearing the prosecution needs merely to produce sufficient evidence to establish "probable cause". In this procedure the defense can cross examine or rebut. In a preliminary hearing, the judge would also decide if the evidence has been obtained by lawful searches.  In the "Simpson" case, the procedure chosen was the latter. The preliminary hearing was presided by a female judge in the municipal court. Two important issues were raised by the Simpson defense lawyers.

 

First, has the prosecution fully grasped sufficient preliminary evidence? The reason is that at this stage the prosecution needs not produce enough evidence to prove guilt. It only needs to establish the initial reason or "probable cause" to file charges.

 

Second, the the prosecution's evidence lawfully obtained? The Los Angeles police climbed into Simpson's house on the early morning of the outbreak of the case. At the time they did not have a court issued search warrant. Were the evidence they obtained such as the blood stains and the blood stained gloves lawfully obtained? The issue involves the Fourth Amendment of the Constitution which questions whether the defendant had been subject to reasonable search and seizure. The question was to be decided by the court. The police asserted that they were concerned with the possible dangerous event inside the house. For example, could Simpson be the next victim? Therefore they climbed over the wall and got in. That was entrance into the house due to an imminent dangerous condition. If the judge decided that the police had violated the Fourth Amendment, the evidence would not be admissible at trial.

 

The result of the preliminary hearing was that the municipal court judge ruled that the police had entered the house in accordance with the imminent urgency procedure; the blood soaked gloves and other evidence were admissible in court.

 

After the criminal procedure went past the "grand jury hearing" or the "preliminary hearing" stage, generally one gets an idea whether the evidence favors one side or the other. At this point, if the prosecution believes that its is not confident its evidence is sufficient, often it will withdraw the charges. But if the defense lawyer feels that the evidence is unfavorable to the defendant, he may confer with his client to discuss and analyze, and consider different angles and then contact the prosecution to begin "guilty plea bargain".  

 

In this instance, because the accusation were very grave, and due to the wealth of Simpson who was willing to litigate without regard to costs, the defense took a strong position and refused to engage in a "guilty plea bargain," an understandable posture.

 

Subsection 2.7 The Selection of the Jury

 

With accusations such as those against Simpson, there was little possibility of a plea bargain.  After the preliminary hearing in the municipal court, the case was turned over to the Los Angeles County Superior Court. According to California law, misdemeanor cases are handled in municipal courts. Felonies are handled by the superior courts.

 

In January of 1995, the Simpson case was presided by Judge Ito, who had Japanese descent.  The case officially began in the Superior Court located in downtown Los Angeles which had a high percentage of African American residents. First, the court needed to select twelve jurors. Before the selection, each of those potential jurors who had been picked to serve potentially had filled out an eighty two page questionnaire. Then in court they had to answer questions from the defense and the prosecution. Finally twelve jurors and twelve alternate jurors were picked. Later most of the jurors were removed during trial because of various reasons, to be replaced by the alternate jurors. By the end of the case only two alternate jurors remained. In the beginning the jurors probably had no idea that they were confronting a life in which for nine months they would be secluded from their families and the outside world. 

 

Before trial formally commenced, judge Ito made two unique and very important decisions. One was to seclude the jury from the outside and move them into a hotel. The other was to allow live broadcast inside the courtroom. Those two decisions were within the power of the judge.  Whether those decisions were correct and appropriate became ab important point of contention in this case.

 

In the Romance of the Three Kingdoms, before Zhu Geliang came out of his thatched hut, he already knew that the world was going to be divided into three units. In the Simpson case, even before the trial opened, experienced attorneys, including myself, already sensed that the situation was not favorable to the prosecution. The observation was based on two decisions of the prosecution.

 

First, the charges were filed in the court in central Los Angeles, as was the trial, and not in the Santa Monica court which is near Beverly Hill where the crime had occurred. Most of the residents in Santa Monica were white, and jurors selected from among them would naturally be mostly white.  The chief prosecutor selected central Los Angeles with a high proportion of black residents, so the majority of jurors would naturally be blacks. In actual fact, ten of the Simpson jurors were blacks, one was white, and one was Hispanic. According to the general opinion of legal circles, a jury composed of mostly blacks was favorable to Simpson. Besides racial identification and Simpson being an icon, black people often had a special perspective of the police and criminal law. That was also a special consideration.

 

After it had been decided to hold the trial in central Los Angeles, the stage was set for the prosecution to fight against the tide or uphill battle.  As we previously mention, the Rodney King trial was originally selected to be in a white area of west Simi Valley where the white policemen were found not guilty, and touched off a riot by black people in Los Los Angeles. Thus, the choice of location where trial and jury selection take place is of great importance.

 

Second, among the one thousand plus prosecutors in the Los Angeles District Attorney's office, the District Attorney chose a rather young female lawyer and a black lawyer to take charge of this "Trial of the Century". Obviously, this decision considered the factors that  most of the jurors were black people and women, the image of Simpson, and the involvement of domestic violence issues in this case.  

 

Of course Simpson had also made some important and critical decisions, such as choosing the defenses team to represent him, the hiring of jury consultants, and so on. The preliminary decisions in these matters also affected th course of the entire trial.

 

Subsection 2.8.  Trial

 

After all those steps above had been taken, the trial formally began.

 

As soon as trial began, the important persons became the jury, because all the evidence and the arguments of both parties were to be conducted before them, who would deliberate and decide the verdict.  In a jury trial, the judge is only responsible for the legal procedures and instructing the jury in relevant legal principles and limitations, without influencing the decision of the jury. In the several months of the "Simpson case", the major television stations presented nightly persons from the legal profession analyzing what had happened on that day. Skipping the other analyses for the moment, the point that was made by the analysts all the time was: "Whatever we and the legal professionals analyze is one thing; what is important is how the jury see it". Thus in a trial in the court, everyone knows that the performance of all sides is intended to win the support of the jury.

 

The main process was for the attorneys of both sides to make an opening statement, and then they summoned witnesses to testify. The opposing counsel then engaged in (cross examination). After all the evidence had been submitted in court, the attorneys from both sides would make their closing arguments. The jurors then retired to a private room to deliberate. Eventually the decision of guilty or not guilty would be made. Finally the judge made the decision of penalty based on the law.

 

The Simpson case followed this procedure in the nine months trial.

 

In the nine month long trial, there were dull and dry blood test evidence testimony which common people would find difficult to understand, but there were also unexpected, game changing, extremely dramatic developments that we cannot describe fully. However, there were several matters that can help us understand the procedure and spirit of criminal litigation deserving of attention:

 

First, the main witness for the prosecution was detective Fuhrman who had been responsible for handling the case and entering the house to search for evidence.  He was targeted by the defense attorneys as a racial discriminator.  When he testified in court, he answered and declared that in the past ten years he had not used the racially derogatory term "nigger". However, later the defense found a video tape which proved that Fuhrman had used several tens of times the racially discriminatory term within a short period of time. The credibility of his testimony was severely destroyed. The defense immediately followed up with an accusation that, besides Fuhrman, there were other people in the Los Angeles Police Department who assisted Fuhrman with planting false evidence to incriminate, and with falsifying evidence. This was the sharply criticized "race card" played by the defense lawyers.

 

Second, the chief prosecutor suddenly demanded that Simpson try out the blood stained glove.  This was an unexpected development. The glove was too small. Simpson was not able to put it on.

 

This was among the losing undertakings by the prosecution. The result was that Simpson actually tried on the blood stained glove but, in full public view, he could not get his hand into the glove. Obviously the glove was too small. Although the prosecution had found a photograph showing that Simpson had worn a similar glove, and an expert had testified that the glove would shrink after it was stained with blood, (the defense had an expert who testified that it would not shrink), the prosecution had sustained a devastating blow. From this we can see that during a trial, a careless error by either side may turn out to be the key to a defeat.

 

Third, Simpson decided to exercise his right to remain silent pursuant to the Fifth Amendment of the the United States Constitution and chose not to testify in his own defense. This was an expected decision by legal professionals. Thus, there is an important principle in litigation;  talking too much invites inevitably missteps. This is perhaps not known and not easily understood by the general public.

 

After nine months of testimony and hearing, the last step of the trial was for the two parties to make their closing arguments. The prosecution pointed out that Simpson had violently abused  his wife over many years (and there was recorded report to the police). Additionally there were ironclad evidence such as the blood stains and the boody glove. The prosecution urged the jury not to allow Simpson escape justice. The defense strongly attacked the loopholes in the prosecution's evidence, such as the fact that Simpson could not have enough time to murder and then destroy the murder weapon and clothing. In particular, they attacked that fact that the accused could not fit his hand into the blood stained glove. Another attack was on the racial discrimination of the witness and challenge to the credibility of his testimony. The defense emphasized that the prosecution did not have sufficient evidence to prove guilt beyond reasonable doubt, concluding with the powerful demand for acquittal, declaring "If gloves don't fit, you must acquit!".  This simple, direct, powerful declaration might have saved Simpson's life!

 

The attorneys for both sides spent four days to make their closing arguments. Now the jury had to do their duty. After deliberating for less than four hours, the jury, composed of ten black people, one white and one Hispanic, declared that Simpson was not guilty of both crimes of murder. 

 

According to the principles of criminal law, Simpson was a free man the moment he was found not guilty. Further, according to criminal law principle, the government can never accuse him of the same crimes, or it would be double jeopardy prosecution in contravention of the civil right protection under the Fifth Amendment of the Constitution. Little wonder that the day Simpson left the prison, a large celebration awaited him that evening.

 

Subsection 2.9. Appeal

 

If Simpson had been convicted, he had the right to appeal. Conversely, when he was found not guilty, the government had no right to appeal and the court of appeal had no power to overturn the verdict of not guilty by the jury. The Simpson criminal case has reached its complete conclusion!