Let's not forget the rights of Nicole Brown Simpson

COMMENTARY, COLUMN

July 08, 1994|By ROGER SIMON

Though O. J. Simpson's preliminary hearing continues to inch along, it really ended yesterday morning.

That's when Judge Kathleen Kennedy-Powell dashed whatever (slim) hopes the defense had that Simpson would not have to face trial for the murder of Nicole Brown Simpson and Ronald Goldman.

The judge ruled that the evidence, including a bloody glove, that police gathered without a search warrant at the Simpson home could be used against him.

That glove, which appears to be the mate of the one found at the murder scene, is very bad news for the defense.

It, along with all the other evidence, can be challenged once again at trial. And it alone does not prove that Simpson is guilty.

But at a preliminary hearing, a defendant lacks his greatest protection: a cloak of innocence that can be penetrated only by proof beyond a reasonable doubt.

Though Simpson is still presumed innocent, at a preliminary hearing only a preponderance of evidence is needed to bind him over for trial.

What's the difference?

Imagine the scales of justice. To establish proof beyond a reasonable doubt, those scales must be tipped almost all the way over.

But to establish a preponderance of evidence, those scales must be tipped just the tiniest fraction more than halfway.

And the ruling by the judge yesterday allows the state to give those scales quite a nudge.

Some television experts (who seem to have vastly differing degrees of expertise) disagreed with the judge's ruling. They said it was clear that the police were not, as the judge ruled, invading Simpson's home for the "benevolent purpose" of seeing if anybody was bleeding to death inside, but rather to gather evidence against Simpson.

What none of those experts talked about, however, is a question that may have occurred to the general public: If O. J. Simpson is really innocent, why is he trying to suppress evidence? Isn't the fact he tried to get the bloody glove thrown out of court "proof" that he is trying to hide something?

Those questions are logical, but they would never occur to a lawyer. And that is because trials, while technically for the purposes of establishing truth, are more like intricate games.

Many attorneys never ask their clients whether they actually committed the crime or not.

In the first place the attorneys would rather not know, and in the second place it is immaterial to the defense.

In the eyes of attorneys, "real" guilt or innocence does not exist. It does not matter if a client really stabbed two people to death or not. What matters is what the state can prove.

To you and me, there is such a thing as reality. There is such a thing as what really happened at 875 South Bundy in Brentwood on the night of June 12.

But to a defense lawyer, there is only his duty to do everything he legally can to defend his client's rights. And if that means suppressing evidence and other "truth," he feels duty bound to do so.

"Those who think the information brought out at a criminal trial is the truth, the whole truth and nothing but the truth, are fools," F. Lee Bailey once said. "Prosecuting or defending a case is nothing more than getting to those people who will talk for your side, who will say what you want said."

Both at a preliminary hearing and a trial, the burden of proof rests on the state. (The exception can come at insanity hearings. In many states, the burden of proving a defendant insane now rests with the defense.)

And regardless of how things seem in the Simpson case so far, our system gives extraordinary protection to the defendant.

It is accepted by our judicial system that it is better to let a guilty person go free than to convict an innocent person.

As a federal court put it in United States vs. Edwards: ". . . there are times when criminals escape through the meshes and go unwhipped of justice. This result is preferable, however, to the possible risk of convicting an innocent person."

But the court went on: "On the other hand, it is necessary not to concentrate on the privileges of the accused to the extent of neglecting the interests of the victim of the crime. The victim must not become a forgotten man."

Or woman.

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