Court of appeal

February 3, 1995

The O.J. Simpson trial: judicial proceeding or popular entertainment? Wendy Lesser on the cameras in the courtroom. It would be either foolish or disingenuous to suggest that fascination with the spectacle of a trial is a recent phenomenon. Courtroom procedure has been an element of public entertainment at least since Aeschylus put Orestes on trial in the "Eumenides'' section of The Oresteia.

Trials form the climactic scenes of Shakespeare's Merchant of Venice, where Portia gets to do her star turn as a young advocate defending Antonio from Shylock, and Shaw's Saint Joan, where Joan of Arc appears before the Inquisition. And many decades of Hollywood movies have hinged on the outcome of a dramatic courtroom scene.

But to this backlog of courtroom theatre has recently been added a plethora of real-life television trials that further blur the distinction between judicial proceedings and popular entertainment. In a series of legal decisions made between 1980 and 1986, the United States Supreme Court ruled that press cameras would, for the first time, be permitted in courtrooms where criminal proceedings were taking place. The argument was that since the criminal proceedings were newsworthy events with a direct bearing on the public welfare, the public had a First Amendment right to see exactly what was taking place. The court also ruled that televising a criminal trial, even over the objection of the accused, did not necessarily violate the right to a fair trial. These rulings ended the traditional ban on TV cameras at criminal justice proceedings and spurred several states to begin allowing routine TV coverage.

The presence of cameras in the courtroom did not become automatic. Some states continued to ban TV coverage of trials and, since most crimes, including murder, are initially tried in state rather than federal courts, that left many trials out of bounds. Even in states that permitted such coverage - including, notoriously, California - the decision about whether or not to allow press cameras in court was always left up to the presiding judge. However, enough judges did decide in favour of the new procedure to provide an ongoing flow of courtroom videotape, which in turn resulted in a new form of TV programme. On July 1, 1991, an entire channel, the Courtroom Television Network, began presenting 24-hour judicial programming, consisting of unedited, often live, trials. As the New York Times TV critic commented: "Court TV seems to be onto something, combining the inherent appeal of courtroom drama with an effort to open up the workings of law." Much of the material, though, appealed to interests that were hardly legal or educational in origin. "Last night," the New York Times commented, "brought the trial of Marlon Brando's son, Christian, for the killing of his sister's lover."

Robert Shapiro was the lawyer for Brando's son. He is also, as millions now know, the chief lawyer in O.J. Simpson's defence. One might even go so far as to say that Shapiro is a creature of Court TV. Stimulated by his success, he has written a book instructing lawyers how to manipulate the media for the purposes of their clients' defence. Shapiro is adept at making his own self-promotion seem necessary to, and identical with, the legal protection of his prominent clients. Early in the Simpson hearings, for instance, he arranged a broadcast of a toll-free 800 number for those in the audience who had information that could help in the defence. Callers were greeted by four choices: items one through three involved giving evidence to the defence or sending encouraging messages to O.J. and item four offered the services of Robert Shapiro for hire. (Honesty compels me to admit that, in response to instantaneous mockery, Shapiro subsequently deleted item four).

Shapiro is an easy target, but he is not a fair one: if there were no Robert Shapiro, we would have to invent him. Such lawyers do not create our obsession with televised trials, they merely feed on it. And over the past few years, there have been plenty of Court TV episodes that managed to hold America enthralled without Shapiro's presence .

But the O.J. Simpson case is different - not because of the defence lawyer, but because of the defendant himself. Never before has such a famous celebrity been put on trial for murder. And never before have regular television networks - not just the cable-based Court TV, but the major networks in the United States, Britain, Europe - planned to provide full-scale coverage of a murder trial. In America, the courtroom programming is live and continuous, all day long.

At the beginning of the hearings, it seemed possible that O.J. Simpson might be put on trial for his life. But the prosecution, which has the option of seeking the death penalty for particularly heinous crimes, decided not to attempt to send O.J. Simpson to the gas chamber. This struck some observers as a rather arbitrary move - but then the death penalty in America is always arbitrary in its application, being primarily reserved for the poor, the mentally deficient and the racially marginalised. In this case, the prosecution's decision seemed prompted less by the nature of the crime than by the unlikelihood of getting a dozen Californians to vote in favour of executing a beloved football hero.

In the weeks before the trial opened, much discussion at California cocktail parties has focused on whether it is a good thing for the American public to be subjected to the complete O.J. Simpson trial on TV. If there are lawyers at the party, they tend to think it is a good thing: how, otherwise, would the general populace ever be exposed to the details of search and seizure, the basis for evidentiary rulings, and other fine points of legal procedure? Journalists, of course, favour the TV programming as a way of extending their crucial First Amendment claims. And even civil rights advocates generally feel it is useful to air all the dirty linen in public. O.J.'s civil rights, after all, have already been shot to hell (if he ever had any privacy, it has long since ceased to exist, what with weekly primetime interviews with every members of his family and daily tabloid exposes about his past), whereas the wider population can still benefit from witnessing in detail the incompetence and negligence of the Los Angeles police. And we apparently need not worry that TV coverage would prejudice Simpson's right to a fair trial.

Of greater interest is the question of why we are so interested in the O.J. Simpson trial in particular and murder trials in general. A trial is, of course, a special kind of story, eminently well designed to satisfy our need for narrative closure. It has a definite beginning and a solid ending (except in the case of a hung jury, which is relatively rare); it poses a problem and then neatly solves it.

It takes real facts from the world, but it simplifies them for courtroom consumption, converting difficult shades of grey into comprehensible black and white. In that sense, it makes normally chaotic reality seem unexpectedly graspable. Like a sporting event, a trial takes place in real time, with the suspenseful end hanging in the balance throughout. A trial also resembles a sporting event in that it is played by firmer rules than those that govern the notoriously unreliable world of commercial TV. Americans have frequently been lied to by their TV sets; only when there are powerful external strictures, such as international soccer regulations or American judicial rules, can it be assumed TV is actually transmitting the truth.

A murder trial raises the stakes on all these concerns - not only because it is, on the broadest level, about life and death, but because it pointedly raises questions about character, fate, motive, sympathy, revenge, free will and social responsibility. We cannot help being curious about what kind of person would commit murder, and under what circumstances, and by what means. The Supreme Court judges who opened up the courtroom to press cameras felt that such curiosity was a "natural'' part of the function of justice. "Civilised societies withdraw from both the victim and the vigilante the enforcement of criminal laws," Chief Justice Burger wrote in Richmond Newspapers Inc. vs. Commonwealth of Virginia, "but they cannot erase from people's consciousness the fundamental, natural yearning to see justice done - or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is done in a corner (or) in any covert manner." Justice Burger's words presume that, in watching O.J. Simpson on trial, we will be identifying with Nicole Brown Simpson and Ronald Goldman, seeking "retribution" through punishment of their murderer. But even if we think O.J. is guilty, there will be another element mingled in our response. In order for us to undergo the "catharsis" that Justice Burger mentions, we need to feel, as Aristotle suggested, both terror and pity; we need to imagine ourselves not only in the position of the victims, but also in the position of the accused murderer now on trial. Television, with its repeated focus on the face of the frightened, distressed defendant, encourages us to do that.

Wendy Lesser is the author of Pictures at an Execution (Harvard University Press) and editor of The Threepenny Review in Berkeley, California.

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