As the case against O.J. Simpson moves closer to trial, let me renew a prediction I voiced in July: O.J. will walk free. And the ghost of Dr. Sam Sheppard will walk with him.
Mr. Simpson has two opportunities to avoid a prison sentence. The first will come at trial. If the jury finds him guilty, his second chance will come on appeal.
Several points ought to be kept in mind. The first is that Mr. Simpson has no obligation to prove his innocence. It is up to the state to prove his guilt. The prosecution must introduce evidence sufficient to convince every juror, beyond a reasonable doubt, that Mr. Simpson stabbed his ex-wife and her companion to death. This promises to be a very tough job.
The prosecution has no bloody knife, no eyewitness, no confederate who might testify. Some of the state's evidence is circumstantial (Mr. Simpson hypothetically had a window of time in which to commit the murders). Some evidence goes to Mr. Simpson's character (his threats to his wife). Most of the evidence is forensic (the matching of DNA in samples of blood).
Will this be enough to convince the jurors? Every juror? I gravely doubt it, but let us suppose that the jury does return a verdict of guilty. Mr. Simpson, of course, appeals.
Now we get to the part that lawyers love. Defense counsel will challenge the admission of any evidence taken from Mr. Simpson's house on the night of the murder. The police had no warrant. They acted under the doctrine of "exigent circumstances." It is likely that the officers' justification will be upheld to a point, but a large body of Fourth Amendment law suggests that beyond that point the search was constitutionally impermissible.
Defense counsel will continue to mount a furious argument against the admission of DNA evidence. Mr. Simpson's lawyers will challenge the adequacy of the blood samples, the handling of the samples, the expert testimony of statistical probability.
If the Simpson case does reach the California Supreme Court, or if the case gets into federal courts on a constitutional point, watch for the ghost of Dr. Sam Sheppard to return. And watch for O.J. to walk.
Forty years have passed since Marilyn Sheppard, the beautiful wife of a prominent Cleveland physician, was bludgeoned to death in her bedroom. She was pregnant at the time. Dr. Sam pleaded his innocence.
The media went wild. A front-page story disclosed that blood tests had established that the killer washed off a trail of blood from the murder bedroom. No such evidence was disclosed at trial. The media reveled in stories of Dr. Sam's extramarital affairs. Lothario! Adulterer!
Throughout the summer of 1954, broadcasters and editors belabored the story. By December, five large volumes had been filled with clippings. All three Cleveland papers published the names of prospective jurors. Swarms of reporters and photographers clamored for seats in the courtroom. Outside, TV cameras and microphones greeted witnesses and court personnel.
The trial judge put virtually no restraints on coverage. The jury was never sequestered. During the nine weeks of the trial, the jurors were constantly exposed to media bombardment. Reporters questioned bystanders on Dr. Sam's guilt or innocence. One radio station conducted a debate. When the jury visited the Sheppard home, one paper rented a helicopter to photograph the parade.
Enough. You will find the whole bizarre story in Sheppard v. Maxwell, Volume 384 of the Supreme Court reports. The jury found Sheppard guilty; he languished in jail until June 1966, when the Supreme Court set him free. The pervasive and unchecked coverage by the media, said the court, had created a carnival atmosphere. The effect was to deny Dr. Sam the "judicial serenity and calm" to which he was entitled. The trial judge had failed to control leaks from both sides. Much published information was inaccurate. Much of it never went to the jury.
In sum, the judge had failed to protect Sheppard and the jury from "the inherently prejudicial publicity which saturated the community." The high court granted Dr. Sam a new trial. On the second time around, a jury acquitted him.
Does the story sound familiar? Pretrial publicity in the Simpson case has passed a saturation point. Judge Lance Ito belatedly is talking of gag orders and bans on TV in the courtroom. You can bet that O.J. Simpson's lawyers are compiling scrapbooks day by day.
James J. Kilpatrick is a syndicated columnist.