'Mr. Guilty is liable'

February 11, 1997

THE ANCHORS HAD been warned. If the jury finds against O.J. Simpson in his civil trial, don't say ''guilty,'' say ''liable.'' Not guilty. Liable.

But then Peter Jennings, in one of the most deeply satisfying mistakes in the history of his medium, put it precisely. He meant to say, ''Mr. Simpson is liable.'' What he said was, ''Mr. Guilty is liable.'' The addled anchor was right. It was Mr. Guilty who was liable.

Still, we are cheerless. The new finding against O.J. Simpson is cold comfort for the old finding for O.J. Simpson, because it is marred by a miserable paradox. This verdict that proved that justice is possible in America was interpreted immediately to prove that justice is impossible in America. Two verdicts, two juries, two communities, two perspectives; objectivity's hour was turned into subjectivity's hour. The relativists, the racialists and the legalists went to work.

''Maybe the two verdicts symbolize something about our nation,'' Alan Dershowitz reflected. Maybe the two verdicts symbolize something about our lawyers.

Mr. Dershowitz continued; ''It doesn't in any way undercut the correctness of the first case at all.'' Of course not. Mr. Simpson did it but Mr. Simpson didn't do it; Mr. Simpson is guiltless but Mr. Simpson is liable.

Mr. Dershowitz continued: ''I'm proud of the role that I played. What we did was absolutely right.'' Fine, and he and his fellow mercenaries should be forever known for it.

Mr. Dershowitz continued: ''I think this gives a little bit of solace to each of the divided camps. Those who believe he did it will look to the civil verdict; those who believe he didn't do it will look to the criminal verdict.'' A Jewish joke begins like that, and it ends like this:

-- But rabbi, they can't both be right.

-- You know, you're right, too.

A case of casuistry

This is the casuistry of a man who is correctly worried about his reputation. But there was worse. The verdict in Santa Monica was denounced as the expression of the color of the jury's skin. It was, we were told, a white verdict. It was to be expected. As Benjamin Chavis said, ''We can no longer pretend that there is one America. There's a white America. There's a black America. There's a brown America and a yellow America, and they are all separate and unequal.''

This is a perfectly representative formulation of an ugly and illiberal view loose in the land, according to which color is identity, color is epistemology, color is fate, color is being, and the idea of color-blindness is an illusion cruelly perpetrated by a racist structure of power.

But wait. The racial analysis of life may be ugly and illiberal, but in the matter of the Simpson verdicts, is it wrong?

After all, the black jury found for him and the white jury found against him. And the black jury, or many of its members, was rather unambiguous about its solidarity with the black defendant.

It might seem as if we really have reached the point in America where fairness is nowhere to be found and all that remains is solidarity. We must be strict and emphatic, therefore, about the lessons of the Simpson ordeal. For those lessons are not separatist ones. The two Simpson trials do not constitute a racially controlled experiment in American justice, because the jury in the criminal trial and the jury in the civil trial did not hear the same case.

Simpson's testimony

The jury in the civil trial was presented with more physical and circumstantial evidence. It was not denied information about Mr. Simpson's record of brutality toward his wife. It saw the photographs of the shoes. It heard and saw Mr. Simpson testify, at length and unbelievably. It deliberated not for hours but for days, and it asked to have evidence brought back for another look.

And there were other differences as well. The judge in the criminal trial was cowed by lawyers whose strategy was to keep the jury in the dark about the defendant, except to note that he was dark; but not this judge. And the proceedings in this trial were not carnivalized by the presence of television cameras. For these reasons, we believe that black jurors would have been as affected by the civil case as white jurors.

To believe otherwise is to surrender to the despair that passes itself off as diversity. We are diverse in this country; but we are not altogether different. The solidarity of tribes has not completely usurped the solidarity of citizens. All our heads can still reason and all our hearts can still be reached, if we insist upon it.

What Mr. Simpson, Johnnie Cochran, Mr. Dershowitz and company unwittingly taught America is that perspectivism is the enemy of pluralism. A pluralist society is not a society of self-infatuated islands. It is a society in which, individually and communally, self is transcended but not rejected. Those transcendences are large and small, and they happen all the time. Or they had better. We share our meanings and our mercies, or we live without meaning and without mercy.

F8

This commentary is reprinted from The New Republic.

Pub Date: 2/11/97

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