Simpson: Not guilty by reason of celebrity?

O. J.

July 01, 1994|By ROGER SIMON TY. COMMENTARY, COLUMN

In the future, there may be a new verdict permitted in trials: Not guilty by reason of celebrity.

Though some think O. J. Simpson is being persecuted because of his celebrity status, I think he is getting some breaks few criminal defendants are allowed.

Take his preliminary hearing. Most preliminary hearings are pretty swift affairs.

All the state must demonstrate is that a crime was committed and the accused may have done it.

The first part is pretty easy to demonstrate in the Simpson case. We have two dead bodies.

But the second part shouldn't be too difficult, either.

Simpson wasn't picked up at random. Five years ago he admitted to savagely beating one of the victims, and the state says it can demonstrate that Simpson had the motive, method and opportunity to commit the crimes.

That doesn't mean he is guilty. It merely means, according to the state, that a trial should be held. (And if the state loses at this preliminary hearing, it can still go to a grand jury and seek an indictment of Simpson.)

But what happened yesterday?

The defense was allowed to argue for hours over whether Simpson should give up two or 10 or 100 of his hairs and whether the state should be forced to split blood samples with the defense.

One point should be made here: Some people may be confused as to why Simpson has to give up any hair samples at all. Some may think this a violation of his Fifth Amendment right against self-incrimination.

But it isn't. Such protection applies only to testimony. It does not apply to fingerprints, blood samples, hair samples, etc.

So the defense really has no right to deny the state hair samples. Nor is the request for 100 samples an unreasonable invasion of Simpson's body. He loses more hairs than that every time he gets a haircut.

And in most cases, a judge would quickly rule and move on.

But not with all America watching. Not with Brokaw and Jennings and Rather broadcasting live. Not with the soap operas being pre-empted.

No, we have a celebrity on trial and we must not only give him the justice that ordinary people get, but the extra measure of theater that celebrities are entitled to.

As to the blood samples, the state is duty-bound not only to share test results with the defense, but to reveal all evidence, even that evidence that might prove Simpson innocent.

Further, the state has already said the defense can have its own expert present at the blood tests.

But that is not enough for the defense. It wants the state to give it the blood samples so it can do its own tests in private.

And the reason, I believe, is to be found by examining what happened when F. Lee Bailey was charged with drunken driving in San Francisco in 1982.

On Feb. 28 of that year, Bailey ran a stop sign, was pulled over and charged with drunken driving, but he refused to submit to a breath test.

Weeks later at his trial, however, he testified that during the 13 hours or so preceding his arrest he drank part of a Bloody Mary, part of two Scotches and soda, part of a Margarita and some wine.

The defense then brought forth a forensic toxicologist who testified that he had Bailey consume an identical number of drinks, tested him and found Bailey's blood contained only .01 percent alcohol, far less than the legal limit.

That this test meant almost nothing -- there was only Bailey's word as to how much he had to drink that day -- did not matter.

The jury was very impressed by the independent test and found Bailey not guilty of drunken driving.

And Bailey, who is one of O. J. Simpson's attorneys, was represented at that trial by none other than Robert Shapiro, O. J. Simpson's chief attorney.

And it appears they would like to use a similar tactic in the Simpson case, but to do so they need the blood samples taken by the police.

But do they have a right to the blood samples, especially when the state says there is not enough blood to be split?

I don't think most judges would take more than 15 minutes to rule on that or more than a day or two to hold the entire preliminary hearing.

But the Simpson hearing, it is said, may take two weeks.

Justice is slow, but theater is even slower.

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