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Guilt: Legal vs. real Distinction often gets lost in shuffle


WASHINGTON -- Americans are an argument-prone lot, with an unquenchable passion for choosing up sides on big issues of the day. No doubt, they will debate the O. J. Simpson verdict loudly and, maybe, endlessly. But, chances are, many will be talking facts or suspicions, not guilt or innocence.

Millions of Americans have served on juries, in big cases or small, and most of them come away with some sense of this vital difference: Factual guilt is not necessarily legal guilt; a person who may have committed a crime, in fact, is not necessarily guilty of the crime.

There is more than subtlety to the distinction, and yet it often gets lost in heated public conversation about a given verdict, like this one.

As Americans try to deal with the Simpson verdict, a swift not guilty conclusion at the end of a long, titillating trial that had transfixed the whole country, conflicting theories about its real meaning in moral and racial terms will be advanced and disputed.

While those theories may range far and wide from the verdict, they will have the verdict as their basic provocation, and many such arguments will reflect the confusion over whether O. J. Simpson is guilty in one sense, or another, or in no sense.

The not guilty verdict is in now, it is fixed in law, and no one can second-guess it, legally speaking. O. J. Simpson went free and he can never be tried again on those murder charges; the Constitution won't allow it, because that would be "double jeopardy."

But that very same verdict is not necessarily the right conclusion, factually speaking, and that is what is likely to be disputed for a long time. Some are saying that "O. J. beat the rap," or "got off." And by that, many probably will mean they are convinced he did it -- factually. Others are saying "The system worked," and many who make that argument probably will mean they are convinced he didn't do it -- again, factually.

The facts are not exactly beside the point. But they are not decisive, by themselves.

In the American legal system, juries are not asked to pronounce factual guilt; their duty is not to answer "Yes" or "No" to this question: Did the individual who has been charged commit the crimes as a matter of historical proof, as a matter of hard fact?

Not just the facts

The job of being a juror in any trial actually might be made easier if that were the question. Then, prosecutors on one side, and defense lawyers on the other, could dump into the mix every fact they could turn up, and the verdict form sent out with the jury would read something like this:

"Which side had offered the most facts about these charges? If you think the prosecution had the most, put an X here, next to the word ------ GUILTY. If you think the defense had the most, put an X here, next to the phrase ------ NOT GUILTY."

The question that actually gets put to jurors is a tougher one, because it is a legal question and not all of the facts that anyone may gather will be allowed into court to help the jurors find an answer. The key question is: Did the prosecution prove the individual guilty, with factual evidence that was properly admitted, and did it prove guilt "beyond a reasonable doubt"?

The evidence that the jury will be allowed to see or hear must bear, in a quite direct way, upon the prosecution's burden of proving guilt. To cite an easy, perhaps foolish, example: The prosecutors could not have put into evidence the fact that O. J. fumbled at a key point in a pro football game. Television addicts of the Simpson trial heard the judge and lawyers talking about many things that were never put before the jury; the jury was sent out of the room for many discussions of intended evidence.

Since some of that potential evidence did not bear upon guilt as a legal matter, that part never became part of the trial -- even though the facts involved might have been very interesting, and even though they might have helped the jury decide for or against guilt as a factual matter.

When a jury answers the ultimate question, it answers with a verdict -- it pronounces vere dictum (taken from the Latin and translated as "truly said" or "to speak the truth"). But it is fundamentally important to remember that this is not the same thing as factual truth.

In summary, here is how a verdict gets made: Factual truth is put forth at the trial, some of it gets filtered out through court rules about evidence, the rest is offered as evidence -- by one side or the other, the judge tells the jury how the submitted facts might be transformed into perceptions of what happened or did not happen that was of legal consequence, and the lawyers have their say about what verdict the facts suggest. At the end, the facts are in the jury's hands and are quite magically converted into a single conclusion or outcome -- a verdict in law.

What emerges, clearly, is not necessarily a just, or an unjust, verdict. "Justice" is a much broader philosophical concept than guilt or innocence; justice has its roots as much in moral philosophy as it does in legal notions.

At a news conference after the Simpson jury had spoken its final word Tuesday, Fred Goldman, the father of one of the murder victims, Ronald L. Goldman, remarked: "Justice was not served." What he meant seemed clear indeed: Justice was not served, as he saw it, because the verdict was not the right one; only a conviction of O. J. Simpson would have been "just" to him.

When the debate focuses upon the supposed rightness or wrongness of a given verdict, upon the question of whether it was "just" or "unjust," the concept of legal guilt is sure to get blurred, or lost altogether, in the process.

Of course, people who want to debate a verdict like the one in favor of O. J. Simpson, saying whether they think it was right or wrong, may not be bothered at all if reminded that they are not talking in legal terms. There will be a great deal of moralizing about the outcome, and much talk of "justice" or "injustice."

But when the Simpson jury did the courthouse version of debating his guilt or innocence, there was only one way the jurors could convince themselves that they had done what seemed right to them.

An idea of pure law

They had to confine themselves to an idea that is pure law, and nothing else: They had to be satisfied that there was "reasonable doubt" about the prosecution's case.

Whatever social or moral lessons outsiders might have read into the "not guilty" message, the jurors themselves could walk away from the courthouse content that they had reacted merely to their doubt, not -- as prosecutors later claimed -- to their emotions. A mountain of prosecution evidence, they could say, ultimately gave way under the defense's weightier edifice of doubt.

In that way, the jurors in Los Angeles, like jurors anywhere who acquit, can explain in socially respectable terms a verdict that some outsiders may think was the result of prejudice, fear, or sheer orneriness. It can elevate a verdict of not guilty, even in a celebrated case, into something of a civic virtue.

Essentially, that is what jury trials are all about. They are supposed to be attuned to the reality that the heaviest burden is put on the prosecution, a burden to overcome the benefit of the doubt that the law always gives to the accused person.

That "presumption of innocence" is a shield that guards the accused person from the start of the trial, until all the evidence is in and the jury is formally directed to start deliberating.

The presumption is so strong as an American tradition that jurors are not supposed to be casting preliminary "straw" votes among themselves about outcomes: They are to wait until every scrap of evidence has been put before them. In other words, they are to presume innocence, not prejudge guilt.

Good defense lawyers count upon that presumption, and take advantage of it while it is in effect, by generating along the way as much "reasonable doubt" as they can about the prosecution's case.

The North example

A vivid example, taken from another of America's big "show" trials, made the point well: when Marine Lt. Col. Oliver L. North was on trial for crimes growing out of the Iran-contra scandal, his lead lawyer, Brendan Sullivan, had a routine built into his presentation to keep the jury focused upon "reasonable doubt."

Periodically, Mr. Sullivan would walk up to a big posterboard in front of the jury, and write in 10-inch-high letters: "B.R.D." And then he would repeat the incantation: "Beyond a reasonable doubt, beyond a reasonable doubt." It was a skillful defense lawyer's way of telling the citizens in the jury box: Do not believe everything the prosecution witnesses are telling you.

Not many jurors, and not many Main Street Americans who debate verdicts, know what "reasonable doubt" really means in the law. But, as in the Simpson case, they seem to know it when

they see it.

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