I get email from people who don’t understand the legal system

After yesterday’s post showing the “thank you” letter I got from Johnnie Cochran for being on the O. J. Simpson defense team, reader “Barffy” decided to call me out by appending this comment to the post.

This isn’t questioning your expert witness contribution. I was surprised that you would tout this letter given it is associated with an appalling miscarriage of justice…the result, without doubt of a completely botched prosecution. The result also, of egregious behavior by the defense.

Are you proud of your involvement?

I already answered Barffy’s question in  a post in 2011 about my work for defense counsels on DNA statistics. (I didn’t realize I’d posted Cochrane’s letter before.)  This is not an uncommon reaction to my appearing in court to defend accused murderers and rapists, and I try to answer patiently.

When I worked as a defense witness, I never aimed to get anybody “off” whom I thought was guilty. That wasn’t my goal. My goal was always to make sure that when someone’s freedom or life was on the line, they were given a proper defense, and the government not allowed to railroad them by distorting statistics and population genetics. Except in the O.J. case, I always worked for public defenders, who are horribly overworked, underpaid, and have indigent clients who simply can’t afford a good defense. (The budget for public defenders is pathetic.) I always worked for free except for the very first case I took, and then I realized that I didn’t want to even compromise the appearance of my integrity by taking money.

The purpose of a public defender—or any defense lawyer—is to make sure that justice is done: that the state must prove guilt beyond a reasonable doubt. Without forcing the state to do that, the entire principle of our justice system falls down. In contrast, my experience with the prosecution is that they don’t care so much about the system as a whole; rather, they care about getting a conviction. And if they have to do that by cooking or misrepresenting the “match statistics of DNA” then they would—at least when I was doing this kind of work. They want convictions to make them look good and show the public that the bad guys are being locked up.

I explained in the 2011 post what my work was about: making sure that both match statistics and error rates were calculated properly so that the jury could weigh the evidence fairly. It’s another thing, of course, whether a lay jury really has the ability to do that, and in general I think they don’t, for they don’t have an education in population genetics and statistics. (Try giving a jury who doesn’t know what DNA is a complete lesson in Hardy-Weinberg equilibrium and error rates in one afternoon!). But I thought I had to try, because during the time I worked in the courts, both state and the federal government didn’t do it correctly—nor did they care much.

Am I proud of my involvement in the Simpson case? I don’t think “proud” is the right word. “Satisfied” is better: I did what I thought had to be done to make sure that the statistics were used correctly in one of the highest-profile trials of our era. It turns out that there were other issues involved; that the jury didn’t understand all that math; and that there were a ton of ancillary considerations that affected the jury. As for the outcome, I really don’t know how I feel. I think Simpson probably did the murders, but I don’t think the prosecution was terrific at showing it. All I can say is that I’m glad Simpson was convicted of another crime and is now locked up for a long time.

And as for Barffy’s question, I’d answer this way: “You, sir, should be GRATEFUL for a system in which a prosecution is forced to prove its case with proper evidence and is not allowed to railroad someone because ‘everyone knows they are guilty,’ or because prosecutors can bamboozle juries with unsound ‘science’. Until you’ve sat in the witness box as a scientist, and seen the appalling distortions of genetics prosecutors will concoct to convict someone, you shouldn’t pass judgment on what I did.”


  1. JonLynnHarvey
    Posted September 30, 2016 at 1:51 pm | Permalink

    A fine recent book on the OJ trial states that his whole defense team pretty much knew he was guilty and was going to target police misconduct and racism as their strategy to get him acquitted.

    The first major book on the trial by someone not involved professionally was Vincent Bugliosi’s “Outrage: The Five Reasons OJ Simpson Got Away with Murder”.
    Reason #4: The Incompetence of the Prosecution.

    • Posted October 1, 2016 at 7:54 am | Permalink

      It seems to me that most jurors wanted to have him not guilty, regardless of evidence.

  2. Randall Schenck
    Posted September 30, 2016 at 1:53 pm | Permalink

    Everyone loves to be the Monday morning quarterback as they say. Also we love to run our mouths before we have thought things through. How many times have I done that?

    All defense attorney are terrible because they defend guilty people.

  3. nickswearsky
    Posted September 30, 2016 at 1:59 pm | Permalink

    Hear hear. People don’t seem to understand that in our legal system the State must prove guilt beyond reasonable doubt and all people are entitled to a competent defense. People who testify for defense as experts are doing a service.

    • Posted October 1, 2016 at 10:44 pm | Permalink

      +1, especially those doing so without compensation and with a purely ethical foundation. Jerry, you rock!

  4. Posted September 30, 2016 at 2:04 pm | Permalink

    Geez, my 8th graders understand the legal system better than whomever wrote that letter. It’s interesting to have been involved with such a high profile trial. I hardly think sharing a letter from the defense team adds up to touting. It’s not as though the post was titled, “I helped OJ get away with it, WOO-HOO!!”

  5. busterggi
    Posted September 30, 2016 at 2:08 pm | Permalink

    I’ve done the expert witness thing a couple of times due to my experience in childhood lead poisoning. The worst is when you’ve told someone that your testimony will harm their case but they subpoena you anyway – and then they’re mad afterwards.

  6. karaktur
    Posted September 30, 2016 at 2:18 pm | Permalink

    A good, rigorous and competent defense also serves to protect a conviction when it goes that way. It’s a waste if an appeal can be made based upon an argument of incompetant defense.

  7. Posted September 30, 2016 at 2:26 pm | Permalink

    I’m going to do something unusual for me and that is to offer the paper that Bruce Weir wrote about the DNA evidence. Bruce raises points I’ve not heard Jerry discuss in detail, and I believe, after reading his paper that others on here will have a more nuanced view of the forensic genetics, some extending beyond Jerry’s contribution.

    That said, I greatly appreciate and agree with Jerry’s position that the prosecution should not tamper with and distort evidence and that we should be extremely grateful that there are people out there protecting the accused from this sort of injustice.

    And having said that, I am currently being funded at the University of Washington by the program that Bruce Weir heads, Public Health Genetics. I have tremendous respect for Bruce. And I have tremendous respect for Jerry.

    For what it is worth, from 1995:

    DNA statistics in the Simpson matter.

    • Randall Schenck
      Posted September 30, 2016 at 3:22 pm | Permalink

      For the average person here, which I am sure would include the jury, to reminisce just a moment on this history, does this article allow for any further conclusion or is it just for what it’s worth as you say? Does it say anything like – don’t throw out the baby with the bath water or yes you need to throw out the baby as well?

      • Posted September 30, 2016 at 4:55 pm | Permalink

        Think about this from Bruce’s paper:

        “Presentation of a number such as 1 in 57 billion suggests that it is inconceivable that the rear-gate profile, which matches that of OS, would be found in a random individual (after all, there are only 5 billion people on the planet.) Thus, the frequency of a nine-locus VNTR profile in a population will be so low that the need for presenting probability numbers in cases where one identifiable profile is present appears to me to be superfluous. Ms. Clark did not attach a number to the 21-locus match between NB and the socks, but clearly any number calculated as the product of 42 single-allele frequencies would be absurd. It would be equally absurd to claim that such a match could be coincidental.”

        To me, this is compelling and interesting. I have not dug into all the details of the case, nor do I know if this is a calculation that Jerry contested.

        • Randall Schenck
          Posted September 30, 2016 at 5:32 pm | Permalink

          Gotcha. I was just thinking about the handling of the evidence, the questionable chains of custody and contamination thrown at the jury by the defense — if you muddy the water just a bit it reduces everything to junk, or doubt. They tested so much it should not but that is often the objective. Kind of like that nonsense – if it does not fit you must acquit. Anyone with an ounce would know all the blood would shrink leather.

  8. mordacious1
    Posted September 30, 2016 at 2:38 pm | Permalink

    “All I can say is that I’m glad Simpson was convicted of another crime and is now locked up for a long time”.

    I’m not glad about that. In fact, that 2nd criminal trial was a miscarriage of justice, IMO. OJ was found not guilty in the first trial. Many people felt that he literally got away with murder (which is how I feel too). When he was accused of another, unrelated crime, the justice system got its revenge. He was basically given a long sentence (9-33 years) because of his perceived guilt of the first crime. Had he not “got away with it”, the penalty for the second crime would have been minimal.

    OJ didn’t have, AFAIK, a recent criminal history. He was trying to recover, what he perceived as, his own property. No one was harmed during the “robbery”. Anyone else would have been given a year at most. That trial violated the double jeopardy portion of the 5th Amendment. The presiding judge, Jackie Glass, reaped rewards for finding him guilty. She got her own reality TV show where she was promoted as “the judge who got OJ”.

    Lady Justice was peering out under her blindfold in that trial.

    • loren russell
      Posted September 30, 2016 at 3:45 pm | Permalink

      “Nobody was harmed” — Actually, a gun was pulled by one of OJs accomplices — that brought the charges to assault AND armed robbery. Further, the jury believed testimony indicating that OJ had directed the accomplice to menace the dealer and his associates. In my view, menacing with a lethal weapon is a harm that justifies a much harsher sentence than merely arguing over ownership of a few signed footballs.

      As it happened, the armed accomplice turned state evidence and got off with probation. So yes, this appears to be a make-up call.

    • John Conoboy
      Posted September 30, 2016 at 3:53 pm | Permalink

      Heard an interview with Jeffrey Toobin a couple of weeks ago and he says the same thing, except he thought Simpson was not guilty of any crime the second time. For anyone who doesn’t know, Toobin is a lawyer and author who has written a book about O.J.

    • infiniteimprobabilit
      Posted September 30, 2016 at 5:47 pm | Permalink

      I’d agree with that assessment. The sentence seemed out of all proportion to the crime. II(vaguely)RC, if it had been anyone other than the notorious OJ, he would have had a good chance of a ‘not guilty’ verdict in the circumstances.

      (Don’t even get me started on the nauseating voyeuristic and fundamentally corrupt phenomenon of TV ‘judges’…)


  9. John Harshman
    Posted September 30, 2016 at 2:40 pm | Permalink

    I don’t think it’s actually the goal of a defense attorney to assure that justice is done. It’s to serve the interests of the client, which may or may not involve justice (and certainly didn’t in the OJ case). Neither the defense nor the prosecution is there to produce justice. The system just supposes that the collision of two adversaries is the best approach to justice we can manage. That may be true.

    The closest approach to serving justice on either side would be the various legal and ethical requirements they are supposed to follow. The prosecution can’t withhold evidence. The defense can’t abet future crimes. And so on.

    Or so I gather from watching The Good Wife.

  10. Kevin
    Posted September 30, 2016 at 2:50 pm | Permalink

    Well said. I have been summarily dismissed from trials because I refused to give a rapist a fair trial. It’s my bias against rapists, but I am not the right person for those types of cases. It’s not fair, I guess, to the rapist, regardless of guilt.

    It’s too bad other people cannot admit they may have their own prejudices which keep them from seeing what should be done, regardless of what people think.

  11. Heather Hastie
    Posted September 30, 2016 at 2:57 pm | Permalink

    The principles that anyone accused of a crime is considered innocent until proven guilty beyond reasonable doubt, and that all accused should have a competent defence are just as important to democracy as equal rights, freedom of speech, freedom of the press etc.

    Many tend to dismiss it as of lesser importance because it so often involves the worst in our society. It is not.

    How we treat our criminals is a reflection of our national character. The US as a whole does not do well among OECD nations in this regard. We all should look to countries like Norway to reform our systems. The US could start by getting rid of the death penalty.

  12. Randall Schenck
    Posted September 30, 2016 at 3:31 pm | Permalink

    We are about as likely to correct these problems in the legal system as we are to correct the health system. Home of the free, land of the brave and all of that.

    Unless you could somehow nationalize the legal system, such as a medicare or one payer system you cannot equalize the fairness in legal justice. They could improve it a great deal with a throwing out of our bail system that follows right behind with the plea bargain business. This creates more guilty from the innocent than anything else.

    • Randall Schenck
      Posted September 30, 2016 at 3:32 pm | Permalink

      sorry, I was in reply to Heather….

  13. John
    Posted September 30, 2016 at 3:41 pm | Permalink

    I think there’s an angle being missed in these posts and comments (I haven’t read all comments. Perhaps I should, sorry). What I find ugly is the letter, not Jerry’s actions. The implication of the letter is that Jerry was motivated as an advocate for someone he believed to be innocent. Not true. He was acting as an impartial advocate for the truth.

    • nicky
      Posted September 30, 2016 at 4:47 pm | Permalink

      And that last sentence should have been written in bold. It cannot be stressed enough and it’s importance not valued high enough,
      I think Jerry is 100% justified here. It is the only practical as well as honourable stance.

    • Posted October 1, 2016 at 8:00 am | Permalink

      Yes. To me, it seems that the author knew very well that he was helping a murderer get away, and tried to transfer the responsibility to Prof. Coyne. (I have a very high personal bias against murderers. I also know well that someone must defend murderers in court, too. How good that it is not my job.)

  14. Michael Waterhouse
    Posted September 30, 2016 at 3:58 pm | Permalink

    The jury in that case were out to acquit, as was admitted by some of the jurors. And indicated by the black power salutes.
    There was more on trial than OJ

    • Posted October 1, 2016 at 8:01 am | Permalink

      + 1. I wrote a comment in the same sense before seeing yours.

  15. Ken Kukec
    Posted September 30, 2016 at 4:35 pm | Permalink

    … my experience with the prosecution is that they don’t care so much about the system as a whole; rather, they care about getting a conviction … to make them look good and show the public that the bad guys are being locked up.

    Let me adopt the unusual role of defending those I regularly oppose: In my practice — criminal cases primarily in federal court — the assistant US Attorneys and Justice Dept. lawyers I routinely face are almost without exception honest and competent public servants, and some are among the finest lawyers in the nation. (The same can be said of the assistant State Attorneys and prosecutors I’ve faced in Florida state courts.)

    Sure, there are some prosecutors who are stat conscious, either because they have their eye on elective office or want to be able to brag about their win-loss records when they interview with the big silk-stocking law firms. And one occasionally crosses paths with prosecutors and law enforcement agents willing to cut evidentiary corners to convict defendants they’re convinced are guilty. (This is the primary evil we defense lawyers must set our face against; it corrupts the system and usurps the role of the jury.)

    But I’ve never, to the best of my knowledge, come up against a prosecutor or agent who was willing to convict someone they believed to be innocent (although one occasionally hears rumors such a creature exists). And some of the moments I’ve been most proud of our justice system have come in seeing a prosecutor stand up in court and admit a mistake, or otherwise do the right thing, even when he or she found that task embarrassing or difficult.

    Also: bravo, Jerry, on the response to Barffy in your last paragraph.

    • enl
      Posted September 30, 2016 at 8:07 pm | Permalink

      I have been involved with a local prosecutor that, in my opinion, would never prosecute a case where he did not believe the defendant guilty.

      But, and this is a big but, given his belief that a defendant is guilty, he would pick and choose evidence, disregarding evidence of innocence. Even very strong evidence of innocence, like the defendant was logged in a secure facility (workplace– a nuclear plant) several hours from where the crime was commit, at the time of the crime.

      Damn near ruined the life of a friend of mine in that case, and damaged the reputations of several people. There were no repercussions in this case, the prosecutor is decorated and respected for his vigilance, and, I am quite confident, has put a number of innocent people in prison both in court and by plea, in part due to those with overturned convictions.

      I avoid the county in question, even though it requires me to add roughly 100km to a drive I make several times a year. I don’t know that my vehicle is marked, so to speak, but I have heard stories and prefer not to take the risk.

      The same county has a reputation for excessive use of civil forfeiture (does a police department in the sticks really need a Maseratti with a Dare sticker on it, especially when no charges were filed? There are a large number of other issues, most of which have been booted from court as incontestable, including several filed on due process grounds) as a means of gathering equipment.

      It doesn’t take many crooked or incompetent or biased police or prosecutors to taint the entire system.

      • infiniteimprobabilit
        Posted September 30, 2016 at 8:36 pm | Permalink

        Agreed. There have been any number of cases where prosecutors should be removed from their jobs for blatantly excessive use of the law as a weapon of intimidation. For example the prosecutor who threatened a 15-year-old girl with ‘sex crimes against minors’ charges for sending a nude photo *of herself* to her boy friend. Does this strike anyone else as an insane travesty?

        Unfortunately there seems to be no mechanism for restraining or getting rid of zealots like this.


  16. Newish Gnu
    Posted September 30, 2016 at 4:52 pm | Permalink

    I’ve been an expert witness 4 times on certain financial issues. Civil cases. My purpose was to help ensure a fair outcome that was based on reasonable financial facts and interpretations. In one instance, the judge’s ruling, based on my testimony, made case law that still stands today. His ruling withstood appeal. Probably thousands of people have benefitted in the 18 years since then. One of my prouder professional moments.

    For the record, I regarded the client in that case as fairly detestable.

  17. chris moffatt
    Posted September 30, 2016 at 5:50 pm | Permalink

    It always amazes me how many people know more about the case of OJ than the jurors who rendered the verdict. A fact of criminal law in the USA is that prosecutors have to prove their case – more or less. Marsha Clark and her team didn’t do that.

  18. Stephen Barnard
    Posted September 30, 2016 at 8:03 pm | Permalink

    It’s called due process.

  19. cherrybombsim
    Posted September 30, 2016 at 8:09 pm | Permalink

    “(Try giving a jury who doesn’t know what DNA is a complete lesson in Hardy-Weinberg equilibrium and error rates in one afternoon!).”

    If anyone on the jury actually HAD a rigorous background in statistics and population genetics, they would be struck the instant the lawyers found out about it. Jurors are not supposed to reason anything out based on their own knowledge. I am not being sarcastic, this is actually true.

    For giving your testimony for free, I applaud you vigorously. Well done! If I were on a jury, you are def someone I would listen to.

    • Posted October 3, 2016 at 11:57 am | Permalink

      And there’s an interesting (mildly) _MacGyver_ (!) episode which explores the danger to justice in having uninformed juries. (“Rush to Judgement”, Season 5.)

      Also involves questions of racism, profiling and “unusual witnesses” – a kooky old lady who “talks through a bird” is (SPOILER!! ;)) the key witness.

      All very fanciful, but modestly thought provoking.

  20. nay
    Posted October 1, 2016 at 10:35 am | Permalink

    To Professor CC (E): Thank you for your service!
    To those who think the jury did wrong: You weren’t in their shoes. If you were watching on TV, did you watch the whole trial? Did you watch the trial portions only (the jury was removed from courtroom for long periods)? Did you watch without listening to the commentators?
    I for one was satisfied when the verdict came in – not because I think OJ innocent (I still don’t “know”), but because the justice system worked. From the jurors’ point of view, reasonable doubt was raised and they voted their consciences even if they weren’t sure themselves if they were letting a killer walk. And they were given hell because of it. (Full disclosure: I didn’t watch the whole thing myself. I doubt anyone did unless it was their job. My sister watched most of it every day and gave me blow-by-blow every night over dinner.) Sorry for the lengthy comment.

  21. Posted October 1, 2016 at 1:17 pm | Permalink

    Without any substantial knowledge of the OJS case before following this interesting thread, I appreciate Professor Coyne’s decision to publish the letter received from Johnny Cochrane. It is also a real pleasure to read unbiased opinions, particulary the one posted by Mr. Kukec (#15, September 30, 2016 at 4:35 pm). Thanks! .-

  22. Mike
    Posted October 3, 2016 at 8:32 am | Permalink

    My son who has been a Criminal Defence Barrister for over 20 years, when I asked him about his feeling re the Client, put it this way,”its not my job to decide on my Clients guilt or innocence, my job is to test the evidence of the Prosecution, and if a probably guilty Client gets off ,the prosecution have failed in their Job , that’s how I sleep at nights.”

  23. David Jorling
    Posted October 4, 2016 at 2:32 pm | Permalink

    As a former prosecutor for 6 years and public defender for 3, I must disagree (although I rarely do) with some statements in the original post. It is not the public defender’s job, or that of any defense attorney, to do justice. Poster Mike in entry 22 nails it. Few people realize that the only attorney with the ethical obligation to do justice in criminal prosecutions, is the prosecutor. Unfortunately, many prosecutors are young and inexperienced and like public defenders, are grossly underpaid, especially given their ethical obligations. I am offended to read that prosecutors only care about getting a conviction. To this point I will just share one anecdote: I was prosecuting a rape case where the only evidence available was the victim’s identification of the defendant, the fact that the blood tests showed that the defendant was not eliminated as the suspect, and the defendant passed a polygraph. (DNA evidence was not available in those days, and, in those days under certain circumstances polygraphs were admissible as evidence. That was later changed to not being admissible under any circumstances.) The defendant did not confess and in fact professed his innocence. I did not think I could prove the case beyond a reasonable doubt, so I dismissed the case prior to trail. (Having knowledge of studies concerning frequency of mistaken identifications played a role in this decision.)

    The literal outcry I heard from the victim at my decision haunts me to this day. I have often wondered over the years what has happened to her, and to the defendant.

    In closing, I memorized a quote from F. Lee Bailey given at my law school years ago, where in he mentioned criminal procedure from a defense perspective, which is as follows: “The idea that this is a quest for justice is nonsense, the idea that this is a search for the truth is simply not true. What we are in a quest for is evidence. And evidence is defined as what a particular judge allows a particular jury to hear.” As a prosecutor, I had no problem with that assessment. The State should be held to prove its case. Too often, through plea bargaining, it is not. But that is a whole new topic.

    • Posted October 4, 2016 at 2:48 pm | Permalink

      Thank you for weighing in. All I could do was report my own personal experience in court. And that was uniform: the prosecution tried to distort the DNA statistics despite them knowing otherwise. They tried to impugn my credentials because I worked on fruit flies, not humans. (The principles, as any fool knows, are the same.) EVERY prosecutor I came up against simply wanted to convict the defendants, even if they had to distort the DNA data to do so.

      I have no doubt there are good, rational, and human prosecutors around, and you sound like one of them. But that wasn’t my experience.

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