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CNN Talkback Live

The O.J. Simpson Case in Black and White: Why Does It Still Divide Us?

Aired August 07, 2001 - 15:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEO CLIP)

O.J. SIMPSON, FORMER PROFESSIONAL FOOTBALL PLAYER: I have always said that, if you believe I was guilty or not guilty, you -- the one thing that you couldn't avoid is the fact that the police planned it and perjured themselves during the course of my trial.

(END VIDEO CLIP)

BOBBIE BATTISTA, HOST: But seven years later, opinions about O.J. Simpson's guilt or innocence are still shaded by race.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: It had nothing to do with the color of Mr. Simpson's skin.

UNIDENTIFIED FEMALE: I think he was playing the race card.

(END VIDEO CLIP)

BATTISTA: A new Zogby poll shows 80 percent of whites and nearly 27 percent of blacks believe that the jury returned the wrong verdict.

(BEGIN VIDEO CLIP)

UNIDENTIFIED JUROR: We the jury in the above entitled action find the defendant Orenthal James Simpson not guilty of the crime of murder.

(END VIDEO CLIP)

BATTISTA: The O.J. Simpson case in black and white, why does it still divide us?

Hey, everybody. Good afternoon and welcome to "TALKBACK LIVE"

Are you surprised that all this time later we are still divided over the verdict in the O.J. Simpson case?

Looking at that Zogby poll from the other side: 45 percent of African-Americans and just under 9 percent of whites believe that O.J. is innocent. Why the disparity in the races?

Joining us on the phone to talk about it is Alan D. Crockett of Zogby International, which conducted this poll. In New York, criminal defense attorney Pamela Hayes. And in Los Angeles, Gloria Allred, an attorney who represented Nicole Brown Simpson's family during the criminal case against O.J. She hosts a radio talk show on KABC and appears on "Power of Attorney."

Let me ask you two, Gloria and Pam, if you are surprised at all by the fact that seven years later Americans view this trial differently -- Pam.

PAMELA HAYES, CRIMINAL DEFENSE ATTORNEY: I am not surprised at all, because it's just a different perspective. There's so many facets that go into the ways people look at things to get a conclusion. It's not a big surprise that different people will view it differently. It's all based on their background, their customs, and different facets of how they see things. And...

BATTISTA: So you are saying that blacks and whites would view the evidence, say in this trial, differently?

HAYES: I think that they would view some of the evidence differently, especially in terms of judging the credibility of police witnesses.

The experience in the African-American community, in particular, is very different than mainstream "white America." They don't have issues of driving while black, racial profiling, police misrepresenting evidentiary aspects of a case. So when they hear this, they're not readily to believe it, whereas, on the other hand, some African-Americans, most African-Americans, might have a different perspective. And that's what the real issue is.

BATTISTA: Gloria, considering what Pam just said, what does the Simpson trial tell us then about the justice system today?

GLORIA ALLRED, FORMER BROWN FAMILY ATTORNEY: Well, I think there's not only a racial divide, I think that there's a racial gulf in perception, Bobbie. And I think it's sad that there is that difference, particularly because Mr. Simpson was found liable in the civil case, by clear and convincing evidence, that he in fact had murdered -- had killed Nicole and Ron with malice.

Having said that, I think that there is a different life experience that some people in the African-American community have. And in the Los Angeles area, there has been, among some members of that community, some distrust of the Los Angeles Police Department. And that trust has not -- has not been increased by the recent Rampart scandal, in which police were found -- some police officers were found to have perjured themselves and to have planted evidence.

However, there was no evidence, absolutely not one iota of evidence, that took place in the Brown/Goldman murder case -- that in fact, the police there had done that. And so, I am concerned that African-Americans still do not believe that O.J. Simpson did it.

BATTISTA: Let me bring in Alan into this.

Alan, first of all, why did you all decide to conduct this poll?

ALAN CROCKETT, ZOGBY INTERNATIONAL: Well, the O.J. Simpson question was actually part of a package that Zogby International has produced about America's greatest mysteries. Included in that package is who really killed JonBenet Ramsey, the JFK assassination, the Roswell incident. And we wanted to poll the Americans on what we call, "The Greatest Conspiracy Mysteries of All-Time," just to get a take on exactly where they are and where they stand on each particular issue.

As you can see, they still stand very firmly on the O.J. issue.

BATTISTA: One of the things that I wanted to ask you about that I found confusing was, in this poll, the choices that people were given were "guilty," "not guilty," "not sure," and "other." And some 20 percent of the people that you polled picked "other."

What did "other" mean?

CROCKETT: "Other" could mean anything besides O.J. being guilty or not guilty that means also that there is somebody else involved. Remember, supposedly,that if he is not guilty, then supposedly, somebody else committed the murders. There is a certain segment of each population in each opinion poll, where people have their own opinions about what happened, and it just doesn't include what you've offered them. So we allow them to say something else.

BATTISTA: Could it also mean that people might have thought that O.J. was guilty in reality, but during the trial they failed to find him guilty? So, therefore, they were not comfortable with saying that he was guilty?

CROCKETT: No, no, no. What we asked was, what was your opinion? It has nothing to do with the trials now. This is what happened. We put it out there that he was acquitted of the charges, but we are asking, do you think that he did it, do you think he is guilty? Or do you think he is not guilty, or do you think that something else happened?

BATTISTA: Well, let me do our own little poll here in the audience. Clarissa has got some folks. Back here to Keisha.

KEISHA: Well, I think that the police did plant evidence and did mishandle the case, but I also think that O.J. did kill Nicole.

BATTISTA: OK. So that would be "other" in a way.

And who else here?

No, nobody else there? OK.

I wanted to ask Gloria and Pam about -- this morning, I heard Marcia Clark on another network, say that she thought that the fact that celebrity and race were inextricably inter wined in this trial that you could not separate them.

In other words, had it been Joe Namath, for example, this jury would have convicted him. If this had been John Smith, who was African-American, like an average African-American, the jury would have convicted him. It is the combination of the two that made him ultimately untouchable.

ALLRED: Well, Bobbie, that may in fact have been the case. It may be that the prosecution was forced, not only to prove guilt beyond a reasonable doubt, but to prove guilt beyond any doubt. And that is more than any prosecutor should ever have to do as a matter of law or as a matter of common sense. And if in fact that was the case, it was an impossible burden to carry, and they shouldn't have had to carry it. And if that was the standard the jury applied, it was the wrong standard.

BATTISTA: Pam?

HAYES: Well, I disagree with that. I think that Marcia Clark and the team of prosecutors for the L.A. District Attorney's Office picked those jurors. They went through a very long and tedious voir dire process where she picked them. She stood up, looked Judge Ito square in the face and said, they're all right, they're OK to the people of the state of California.

So to say that if it was Joe Namath, because it was majority black, they would have found him guilty, I think is irrational. The reason why they found O.J. not guilty was because the D.A.'s office didn't prove their case beyond a reasonable doubt.

BATTISTA: All right. All things being the same in this trial, had it been a predominantly white jury would they have convicted O.J.?

HAYES: They might have, just because of that perspective thing. I don't know if they would have. But I think that they might have.

BATTISTA: Gloria?

ALLRED: Well, you know, it's interesting. I think that part of the problem was not anything necessarily that Marcia did, but the fact that her boss, Gil Garcetti, made that original call and decision to move the case out of Santa Monica and downtown. The proper venue -- the proper place where that case should have been tried was Santa Monica, because the crime was committed Brentwood and that is where a case would ordinarily be tried, in the Santa Monica Courthouse.

We saw that when the civil case was tried there it ended up in a verdict by the jury of liable. And I should not have been moved downtown. I think it was moved downtown, possibly for political reasons, possibly for press reasons. There were leaders of the African-American community that met with Mr. Garcetti and urged him also not to seek the death penalty, to have a more diverse jury. And that's the kind of factor that really should not have been used to decide where this case should have been tried. It should have been tried based on a legal -- a legal reason, not on a political reason.

HAYES: Well, I don't know whether it was political or not, but wherever the venue was supposed to be, either in Santa Monica or L.A., the D.A. made a conscious decision to put it in the community, not that was predominantly black or white, but where he could get a fair cross-section of the community.

Now, the bottom line was the prosecutors chose African-Americans. They picked that jury. We can't get away from that. If they didn't want those people there, they had thousands of people there that they could have picked. But they wanted to go with a female-heavy jury.

BATTISTA: Let me go to the audience here quickly and Jeff.

JEFF: Well, there's no question that it was political. And I can't believe I agree with Ms. Allred, but that jury there is no way that they were going to come back with a guilty conviction. It was just -- it was -- the fix was in from the beginning and...

BATTISTA: So you are saying that you think the case was made?

JEFF: There was just no way that jury was going to convict that man, and it was a farce ...

BATTISTA: Well, why do you say that? Just because they were black?

JEFF: Because of -- well, frankly, because organizations like CNN made it more than a trial. It became an epic story in America and it was politically incorrect to come back with the guilty version, and justice really wasn't served.

ALLRED: Justice was not served in a sense, also, for another reason.

The leaders of the African-American community, I'll remember, met with Mr. Garcetti and asked him not seek the death penalty, and Mr. Garcetti refused, at that time, to meet with those of us -- women's rights advocates, domestic violence advocates, who wanted to urge him to seek the death penalty.

Had he sought the death penalty, Bobbie, at that time, he could have voir dire the prospective jurors and ask them what their position on the death penalty was. And usually, prospective jurors who support the death penalty and will apply it in an appropriate case are more law-and-order-oriented. Therefore, he would have ended up with a more prosecution-oriented type of jury.

Because he chose not to seek the death penalty, he -- he was not able to ask those questions through his prosecutors, and therefore, he might have ended up with a jury that was less likely to convict.

HAYES: He would have never have gotten the death penalty. This was not a death penalty case...

ALLRED: Accused of double murder? HAYES: Gloria, listen to me. That's right. Because they didn't have the facts. They didn't even prove that it was a murder. They didn't prove their case and that is what the problem here is.

BATTISTA: All right...

ALLRED: Yeah, often people are accused of a single murder and the death penalty is sought against them. Obviously, the white-glove treatment was given to O.J. Simpson.

HAYES: They didn't have the facts. They didn't and they still don't.

BATTISTA: I have got to take a quick break here.

Alan Crockett, thank you very much for being with us.

As we take a break, do you think O.J. Simpson was guilty of murder beyond a reasonable doubt? Take the "TALKBACK LIVE," online viewer vote at cnn.com/talkback. AOL keyword: CNN. While there, check out my notes, send us an e-mail.

In a moment, right or wrong, was the verdict fair?

Find out what former Simpson defense attorney Alan Dershowitz has to say.

We'll be right back.

(COMMERCIAL BREAK)

(APPLAUSE)

BATTISTA: An e-mail from Tom in New Mexico says: "We, the public, will never know if he committed these crimes. The law should be the same for all regardless of the race."

On the phone with us now is Alan Dershowitz, a Harvard law professor and a former O.J. Simpson defense attorney. He has written several books, including, "Supreme Injustice of the High Court: Hijacked Election 2000."

And Alan, thanks very much for joining us.

ALAN DERSHOWITZ, FORMER O.J. SIMPSON DEFENSE ATTORNEY: Well, thank you. It's my pleasure to be on with you.

BATTISTA: Well, as we look back after these seven years now -- first of all, are you surprised at all about disparity and how the races view this trial?

DERSHOWITZ: There is that disparity. There is another disparity, and it is the disparity between those people who saw the entire trial on television and those who followed it in the newspapers. Those who saw it on television were less surprised at the outcome of the criminal case -- that is the finding of not guilty -- then those who read it in the newspapers, because if you saw the entire trial, you realized that the prosecution bungled the case terribly.

They put on witnesses who were not credible, such as Officer Fuhrman. They did the glove experiment, which backfired. And the jurors, in that case, I don't think the concern was the quantity of the evidence. It was the quality of the evidence. Several of the jurors at the end said that they thought Simpson may well have done it, but they were convinced that the police tampered with the evidence and may have, in their view, framed a guilty man.

And several of the jurors said, we refuse to convict if the prosecution framed a guilty man.

Others of the jurors thought he was not guilty, and others just simply couldn't conclude because they weren't sure about the quality of the evidence after hearing how some of it may very well have been tampered with by the prosecution.

BATTISTA: Was the -- was the -- this is a tough question to ask you, but was the defense that good? Would you have done that well without all of those prosecutorial mistakes?

DERSHOWITZ: No. I think we needed prosecutorial mistakes. And look, we made some very smart decisions. Not putting O.J. Simpson on the witness stand was a very smart decision. Look what happened when he took the stand in the civil case.

We got lucky, too. Finding the Fuhrman case was a stroke of luck, you know. Luck is taking advantage of circumstances, and we, obviously, went out and diligently searched for it.

We had Barry Scheck on our side, and Barry was a superb lawyer able to tear apart the DNA evidence. He knew more about the DNA evidence than the other side did. By the way, the lawyer who previously said that had they sought the death penalty, they might have got a more pro-prosecution jury is absolutely right.

I think that's absolutely right, and sometimes prosecutors seek the death penalty not to get the death penalty, but in order to get a more pro-prosecution jury. Also, if they had taken the jury into the suburbs instead of going downtown, but Garcetti wanted to have a downtown jury close to the media center. He also wanted to see O.J. Simpson convicted by a predominantly black jury so that nobody could say that this was a racial verdict. And Marcia Clark picked black women to serve on the jury thinking black women would be much more sympathetic to the female victim in this case than to the alleged perpetrator.

And in the end, that all backfired.

BATTISTA: Was that because she was white?

DERSHOWITZ: Well, she had a black co-counsel with her. No, I think that in the end...

BATTISTA: No, no, no. I mean, was it because Nicole was white that they were not as sympathetic, perhaps?

DERSHOWITZ: Well, remember that there were three non-minorities on the jury. There was one particular woman named Anise Aschenbach, who was a white woman, who was a real estate person, who had previously turned a jury around that was 11 to 1 for acquittal. She was regarded as very pro-prosecution. And even she, in the end, voted -- not innocent, she never concluded that he was innocent. She voted, really in effect, not proven -- not proven beyond a reasonable doubt.

So in the end, the jury all agreed unanimously that the case hadn't been proven. Some of them thought that he was innocent. Some of them thought he was probably guilty, but probably isn't enough under our system. It has to be proved beyond a reasonable doubt by admissible evidence that is believed. And I think that the big lesson of the case is better prosecutors, better police. We have got to pay our policemen more. We have got to pay our prosecutors more. We have to depoliticize the system. I really do think that a good prosecutor and good police work might conceivably have brought about a different result, as it did in the civil case.

ALLRED: Bobbie, I want to say that I agree with Alan in reference to the point about Mr. Simpson testifying. He did invoke his Fifth Amendment privilege against self-incrimination, chose not to testify in the criminal case.

However, he did testify in the civil case. And he testified that he didn't beat, punch, kick at Nicole. And in fact, the jury did not believe him. In fact, the jury could not have believed him and still come up with the verdict that he was liable for the killings of Nicole and Ron.

So once he testified in the civil case, it was curtains, as they say in New York, for Mr. Simpson.

DERSHOWITZ: Well, and Mr. Simpson becomes the poster child, in some respects, for the privilege against self-incrimination. I think since that case, many, many more defense attorneys are recommending that their clients do invoke their privilege against self- incrimination. I think since that case, many, many more defense attorneys are recommending that their clients do invoke their privilege against self-incrimination, because remember most people charged with a crime think they're going to be the best witnesses in the world. They have no insight into their own fallibility, into their own inability to answer correctly.

I mean, look at President Clinton, what happened when he tried to testify about his own sexual or nonsexual relationships. Testifying on your own behalf is an extremely dangerous venture for anybody charged with a crime, and I think the Simpson case demonstrated that.

BATTISTA: Let me -- let me read a couple of e-mails here. Jim says: "I'm a white professional. I think O.J. committed the murder, but I watched most of the trial and felt that the government never proved their case. If I had been on the jury, I would have voted not guilty."

Mark...

DERSHOWITZ: I think a lot of people came to that conclusion and think that both verdicts were correct. That is, a lot of Americans think that both the criminal acquittal and the civil finding of liability on the basis of the evidence presented to the juries and on the basis of the standards, different in civil and criminal cases, may both have been correct, hard as that is for most people to understand.

BATTISTA: Kristin is on the phone from Florida. Go ahead, Kristin.

KRISTIN: Hi. I think a lot of people look at the O.J. Simpson case and the feelings around it as an indication of race relations in America. But I think that the case itself has actually damaged race relations. I think the race card was played when it shouldn't have been played, and that kind of further polarized white Americans and black Americans with obviously enough evidence to convict him. But I think in the process of convicting -- of freeing him based on the race card that created a lot of anger and set race relations back several years.

BATTISTA: Alan?

ALLRED: I want to say I agree with the caller...

DERSHOWITZ: And I think that -- I think the race card backfired.

ALLRED: And I think that in fact in California we experienced that. In fact, when the verdict came in, I said to some people, I think that's going to mean the end of affirmative action in California, because there's going to be a backlash by the white community against minorities. And in fact, that is what happened.

DERSHOWITZ: But you're misunderstanding...

HAYES: Isn't that -- isn't that sort of racist in itself that people would base a policy...

ALLRED: Yes, it was.

HAYES: ... on improving life for people who had been discriminated on a verdict, because they didn't agree with it?

ALLRED: Yes it is, and a lot of people in the white community felt that the decision, the verdict was rendered on the basis of race, that had he been a caucasian, that he would have been found guilty. And as a result of their anger, they did create a backlash...

DERSHOWITZ: Let me explain...

HAYES: But what makes them...

(CROSSTALK)

BATTISTA: Let me get Alan back in...

DERSHOWITZ: How do they explain -- how do they explain the three white jurors who voted not guilty, particularly, as I say, one of them -- Anise Aschenbach -- who hated both O.J. Simpson and Johnnie Cochran? At least that's what it appeared like.

I think the race card backfired. I think that Johnnie Cochran by making an appeal, at least that some people thought, to racial solidarity created the possibility of a hung jury that would have been a terrible defeat for Simpson. And I know when I watched Johnnie Cochran's closing argument I was concerned that he might have been dividing people along racial lines. But in the end, I think that Barry Scheck returned it to a case based on science, based on the ineptness of the prosecution. And that's how he got the three whites to join the nine minority members on the jury and produce a multiracial verdict of acquittal as contrasted to the civil case, which was essentially a white verdict against a black defendant.

ALLRED: Look, whether it was...

DERSHOWITZ: So the race card is pervasive in American justice. IT didn't apply just to the defense in this case.

ALLRED: Whether it was the reality or not, it was certainly the perception of the reality that a lot of white people had, that it was a racial verdict. Whether they were right or wrong about it is almost irrelevant. That was their perception, and I'm saying that I believe there's been a backlash.

There shouldn't have been, but there was.

BATTISTA: I've got to take...

(CROSSTALK)

DERSHOWITZ: ... help perpetuate that...

BATTISTA: ... another quick break here, and then I'll come back and get some audience reaction. Also in a moment, black and white: How O.J. Simpson helped define the racial divide. We'll be back.

(COMMERCIAL BREAK)

BATTISTA: I'm going to come back to that chat room comment in a minute, but first, let me go to Tom in the audience. Tom, go ahead.

TOM: Well, I was just going to say that in the lack of enough facts to prove the case, the jury that had all the facts in front of them couldn't even come to the conclusion. So the U.S. population, as a whole, which is where the poll was taken from, obviously couldn't have had enough facts to decide for sure who -- what actually happened and who actually did it.

I think in the lack of all the facts that it becomes an emotional issue then, and that's it kind of divided along race lines: is if you're emotionally going (UNINTELLIGIBLE) kind of a gut reaction, then you're just going to side with whatever you feel is right.

BATTISTA: That -- you have a point about it being somewhat of a bogus poll in the sense that you really can't answer that question accurately if you had not paid extensive attention to this trial. And you never really know unless you're sitting in that jury box, you know, which way you're going to rule on something. And you shouldn't -- you really shouldn't be judging others for doing it one way or the other.

But Alan, one of the things that I wanted to ask you, considering the environment around this trial -- and I certainly include the media in that and everything else -- was this trial about evidence or was it about winning?

DERSHOWITZ: Well, it's always about winning for the defense. It's supposed to be about winning. Would anybody out there want to have a defense attorney who was focused on racial justice or equality for all? I do that when I'm not in court. But when I'm in court, I wear blinders the way a horse wears blinders, and I have only one goal, and I'm only allowed to have one goal, and that is winning by all legitimate and ethical and proper means.

Once I neglect my duty to win for my client, I create a conflict of interest. The Bible says you can't serve two masters, and the code of professional responsibility says that a lawyer has to be zealously involved in defending his client.

I'm not concerned about lawyers who are overzealous. I'm concerned about the lawyers in capital cases who fall asleep, who don't prepare. You know, in Texas, recently a statistic was dramatically revealed that never in the history of Texas has a white man ever been sentenced to death for killing a black man. Talk about the race card. That's what Americans should be focusing on: the disparity racially in death penalty cases all over the country instead of one case, which may or may have not produced an injustice, according to what popular opinion shows.

BATTISTA: This e-mail from Mark in California. He says: "The O.J. case was never about race. It was more a statement on how celebrity and wealth can pervert the justice system and an indictment of this society's failure to deal with an epidemic of domestic violence."

DERSHOWITZ: Yes, I think...

ALLRED: I am -- I am concerned, Bobbie, that, you know, this was asserted to be by the prosecution the ultimate act of domestic violence: Killing one's wife is certainly the ultimate act. And I think that -- that that got lost a bit for the jury and I think they did pay more attention to race.

I want to say that as to the -- I've talked to a number of African-American women about this, and a lot of them felt, look, you know, they're out to get our guy. In a way, they're out to get our African-American sons who have been successful, who have achieved against a lot of, you know, odds, and we're not going to let them do it. We're going to protect him. We're tired of our African-American sons being the target of police and law enforcement. And you know, we're going to protect them, and if we need to acquit him to do that, we're going to send that message and we're going to do it.

HAYES: But those people weren't on the jury, Gloria, and I think that -- that perspective does a real disservice. Each and every day African-Americans in this country sit on juries where African- Americans are defendants and the complaining witnesses or the victims are black. And they convict them without any problems and nobody's thinking about somebody's son and they're taking our guys. If they had the proper evidence they would have done it. Everybody who watched the trial knew there were glaring errors, and in good conscience you just cannot vote because you think, "I feel he might be guilty."

ALLRED: Well, you're right. They do convict every day, and our jury system, you know, could not do without them and they are very important in the -- in the system. Having said that, this is not just a -- and never was a garden-variety case. This was about a celebrity African-American defendant and that may have made the difference.

DERSHOWITZ: But one of the problems is the prosecution...

HAYES: I think it was promoted like that by the media. If nobody had -- this was coast to coast, world to world, universe to universe coverage. We hyped it up as a part of the media. If we didn't have that aspect of it, it might have been a little more subtle.

BATTISTA: Let me give the -- the last word to Alan here.

DERSHOWITZ: There was also what I would call the Gloria Allred problem, and that is the case was tried was as a domestic abuse case and not the murder case. It's the only murder case I know of in the 40 years I've been defending these cases where it started with two weeks of history -- or even more -- of sexual abuse rather than -- of physical abuse, rather than starting with the dead body and working backward. The theory of the prosecution was, people who assault their spouses eventually kill them. And the jury just didn't fall for that. The jury knows that, statistically, the vast, vast, vast majority of abusers go on to become more abuse -- and more abusive, but they don't kill, and too much emphasis was placed on this case as a spousal abuse case rather than as a murder case and it backfired. It backfired.

ALLRED: But that's false. Most -- most wives who have been killed have been killed by the person who previously abused them, whether it's the significant other, or...

DERSHOWITZ: Well, let me give you the facts on that. Most wives who have been killed have been killed by people...

ALLRED: Yeah, but that's absolutely true and that's why the prosecution did have the correct theory of the case. I do know the statistics. DERSHOWITZ: The most who have been killed have been killed by their spouses and by people who knew them. The saliency of the abuse, when you take the abuse and you add it to the fact of knowledge, a boyfriend/girlfriend, the fact of the abuse doesn't add statistically very much to the fact that most women who are killed are killed by men who have been involved with them, men who know them, men who were their former boyfriends whether they abused them or not,and it's the failure to associate the abuse with the killing that backfired for Marcia Clark. She tried it as a spousal abuse case and the jury wanted to hear more evidence of actual murder and not the theoretical relationship between spousal abuse and killing.

ALLRED: We have a mountain of evidence about the actual murder and who did it.

BATTISTA: I gotta leave that as the last word here. Gloria Allred, Pamela Hayes and Alan Dershowitz, thank you all very much for joining us today. I appreciate your time. In a moment, talk -- we will talk to a member of O.J. Simpson's Dream Team about how they used Mark Fuhrman to help make their case. We'll be back.

(COMMERCIAL BREAK)

BATTISTA: Welcome back. Joining us now is Earl Ofari Hutchison, syndicated columnist and author of "Beyond O.J.: Race, sex and class lessons for America." Also in New York, Curtis Sliwa, radio talk show host on WABC and founder and president of the Guardian Angels. And on the phone is attorney F. Lee Bailey. He was a member, as you know, of O.J. Simpson's Dream Team of defense attorneys. Earl, let me start with you at first. I'm not going to question whether the jury came to just decision here or not, but do you think they also saw an opportunity of sorts to make a statement with their verdict?

EARL OFARI HUTCHISON, COLUMNIST: I don't think there's any question about that. I think that when you really look at the way this case was structured from beginning to end, it was so, so heavily dominated by the issue of 'is there a racial divide?' So it was almost set up that way. You had a number of African-Americans wherever you went that said, "I don't care what the evidence is. I believe O.J. Simpson was framed. I believe he is not guilty.

I believe this is part of a plot -- and again, going back to, many times, my experiences as African-American within the criminal justice system which they inherently see as discriminatory and, yes, racially biased. So I have to think that a lot of that, based on what I heard, and certainly the way the case was framed in the media and in the court of public opinion -- a lot of that was felt and a lot of that resonated, certainly, in the minds of many jurors. Now, many jurors said no afterwards, you know, it had nothing to do with race, it had nothing to do with any tilt toward O.J. Simpson because of who or what he is. We just simply looked at the prosecution and their failure to prove their case. That may be true, I think that is certainly a determining -- and was a determining factor.

But you cannot tell me and convince me that race from start to finish wasn't a factor in a lot of the thinking and the minds of many of those connected with the case, and certainly many of those that sat on the jury.

BATTISTA: And Mr. Bailey, was that also in the minds of the attorneys who were defending O.J.? How aware of you -- were you of that perception and did you use that in the defense?

F. LEE BAILEY, ATTORNEY: Well, I think the wrong spin has been on the overall circumstances. Number one, O.J. is an African- American. He is a sports hero, a popular figure. He was not advocate in the sense of Martin Luther King and others who have struggled to bring the problems of the minorities to the forefront. The jury -- and we talked with them afterwards, which most people haven't -- simply didn't see evidence. Of course, they didn't have the benefit of the awful misreporting that was done by the Fourth Estate throughout the trial.

I think the sad thing is that most people as they sit here today, voicing their opinions, have no clear idea as to the timeline and demeanor defenses which, number one, swung the jury very quickly, and number two, were too powerful to get around. The only race factor that I saw in this case was we exposed one of the most vicious racists in a police uniform that has ever walked the streets. Indeed, although we couldn't tell the jury about it, he brought a suit saying he was so racist he wanted an early pension. He pleaded guilty to perjury and the African-American community took great delight in seeing him brought down.

BATTISTA: You're talking about Mark Fuhrman, and many people would say that that was the turning point in the trial, that exchange that you had with him about the "n" word.

BAILEY: Well, let me tell you something, the forelady of the jury, who was one of most articulate, intelligent, straightforward and honorable people -- I think she was a deacon of a church as well as some other things said, "You know, Mr. Bailey, we loved you. But we knew Fuhrman was lying before you ever stood up. So I'm not so sure I brought him down with the "n" word.

BATTISTA: How did she know that? Was that her perception, then?

BAILEY: He was such a bad witness on direct examination. They simply didn't believe him.

BATTISTA: Curtis, do you think that also maybe has something to do with the perception that he was a white police officer whose perception -- go ahead.

CURTIS SLIWA, FOUNDER OF THE GUARDIAN ANGELS: You know, Mark Fuhrman was a real "herkamajerk" and obviously F. Lee Bailey set the trap and he went for the cheese and it became a trial about the "n" word. But how do you describe, F. Lee Bailey, the 21 other co- conspirators, police officers who are the same color as Mark Fuhrman who were supposedly involved in this same cabal of planting drug -- blood evidence, hair evidence, DNA evidence and were actually there to try to hang this on O.J. after they were protecting him for years from the domestic abuse charges that he should have been arrested for but it was the white cops that were running interference for him? BAILEY: Well, first of all, there is very ready answer to that, and that is that Mark Fuhrman wasn't the only culprit. Phil Vannatter was carrying two kinds of blood around with him and somebody planted some of it on O.J.'s sock, as was almost conceded during the trial. I don't think that he had any friends on the police department by the time of the trial, and any friends he had were not willing to acknowledge him. But there were other bad guys there. The evidence that has arisen since of corruption and misbehavior at the LAPD is absolutely sickening and I imagine we were affected by some of it.

SLIWA: Yeah, but F. Lee Bailey, we are not talking about a Black Panther going, "Burn, baby, burn. Kill the pigs." O.J. Simpson was like mom, apple pie and the flag. He was like Tiger Woods, you didn't even perceive of him as being black. He was an icon in our popular sports culture. And cops bent over backwards for him, morning noon and night. Not just in LA, but all across the country. And you're suddenly trying to convince through the rope-a-dope legal techniques that all of a sudden they sat down and decided we're going to hang this heinous murder on O.J. Simpson? Nobody bought that in America. You played the race card. Johnnie Cochran was brought in to do that over Shapiro and it worked successfully in dividing that jury and turning black against white.

BAILEY: You know, I think it insults you to sit there as a pro- law enforcement activist, if not fanatic, and to insult African- American predominated jury that never, never cast a racial vote when they reached these verdicts. They did it on the evidence. They are honorable people and if you ever have good fortune to meet them I hope you'll give them your apology.

SLIWA: F. Lee Bailey, they were so fired up by Johnnie Cochran, O.J. Simpson could have mowed down 12 nuns praying, doing the rosary in church, and they would have exonerated him for that crime as long as it had the racial composition of white victims and a so-called black perp.

BATTISTA: You know, Curtis, I've got to take a quick break here but you sort of sound in agreement with Earl, here, and I want to explore that a little bit further when come back from the break.

(COMMERCIAL BREAK)

(BEGIN VIDEOTAPE)

MALE ANNOUNCER: The O.J. Simpson verdict: Does the difference of opinion along racial lines surprise you?

UNIDENTIFIED FEMALE: Yes, I was, because I just thought the evidence, from my perspective, seemed to be very, very strong.

UNIDENTIFIED MALE: We are innocent until proven guilty and they did not prove that fact.

UNIDENTIFIED MALE: I think blacks in our country in general have a profound distrust of the white-dominated system. UNIDENTIFIED FEMALE: I think it was -- it was basically blacks just wanted to support him because it seemed like whites were against him.

(END VIDEOTAPE)

BATTISTA: Two more e-mails here. Jeff in Virginia says African- American juries convict African-Americans every day in cities all over the country. In this case the prosecutors just didn't prove their case. Walter in California said that the jury saw an opportunity to get even for the Watts riots, the Rodney King riots, and what they perceived as many police injustices.

Earl, before the break there it did sound like you and Curtis were saying virtually the same thing: that the jury did see opportunity to make this statement. I'm just wondering what the effect, if any, if that was indeed a statement being made.

HUTCHISON: Well, you know, I'm of divided mind on this. I understand what F. Lee Bailey is saying and I think up to a point he is absolutely correct. It was a terribly, terribly, horribly weak case presented by the prosecution. I would even take it a step further. I mean, it was almost like, you know, the defense was in their hip pocket. I mean, it played right into their hands. Everything was botched from start to finish.

The defense worked hard, but at the same time the prosecution just put together an inept case. On the other hand, I have to still go back to my original point: this case from start to finish, from day one, was heavily laden with racial implications. You cannot tell me, even separate and apart from the horribly inept case that was presented by the prosecution, and in many ways a brilliant defense by the defense team at the same time, many African-Americans -- we heard this from one e-mail correspondent that said look: the fact of the matter is, many African-Americans, if not the majority of African- Americans, time and time again have said, "We don't trust the criminal justice system to give us fairness, to give us justice. So some of that had to come into play there. It had to come into their thinking there, separate and apart from the fact it was terribly weak case by the prosecution. There were two elements that were there and we can't tap dance around that on both sides.

BATTISTA: Curtis.

SLIWA: Well, you know, it's amazing. I'm not a lawyer, but I had chance to watch this trial like all America and the world did on TV each and every day and the evidence was overwhelming against O.J. It was just no explanations on the part of his defense attorneys, the Dream Team, for some of the actions that he took and for some of the evidence was found, but what bothered me most was toward the end of trial when it became the cat-and-mouse game between Johnnie Cochran, sort of the senior attorney there, and the junior Chris Darden prosecutor.

All of a sudden Chris Darden, the black prosecutor, being called an Uncle Tom. A handkerchief head. Oreo cookie. A sellout to the black community. And this was being reverberated constantly. Now why? Chris Darden, like any other qualified prosecuting attorney, should be suddenly separated from the rest and then targeted as a traitor to his own race. Race was the overwhelming decision-maker in this case both for the jury and for many blacks in country and it was epitomized by the attacks on Chris Darden.

HUTCHISON: And I would take it a step further about Chris Darden. But Chris Darden, too, you know, I know Chris Darden, you know, we live in the same community. And I have to tell you this: in the years -- because you asked what's been the reverberations from that, in the years since, Chris Darden has still been vilified, even in the community now. If you talk to most African-Americans now, and you mention the name Chris Darden, the first thing they're going to say is, "he's an Uncle Tom, he's a sellout, you know, he went against the grain, he was out to get a black man. You still hear this today. So that tells me right there minds were made up from start to finish. And I have to tell you, six years later and still counting, the minds are still made up.

BATTISTA: Let me take Jean in Missouri on the phone. Jean, go ahead.

JEAN IN MISSOURI: Well, I watched that trial and I'm black woman and I would have found O.J. guilty then and now. But people don't seem to remember that Chris Darden made the statement (UNINTELLIGIBLE), "I can't help if it you have a fetish for white women with blond hair." And I've never heard -- he just gets -- he's getting a free ticket for being ignorant.

BATTISTA: Let me get Mr. Bailey back in here and ask him why, you know, seven years later where you think we've come with this great divide here in the justice system.

BAILEY: The only recent development is a disclosure, I think in "The Enquirer" or "The Globe," that the FBI has been sitting for seven years on information that some drug people were looking for Fay Resnick and killed Nicole by mistake. That just came to light. This case is not going to die for a long time. The community is divided. People like Chris, who did not watch the trial from everything I heard him say, but run around trumpeting that they did inject a much harsher race note into this whole business than ever was done during the trial and Chris Darden got exactly what was coming to him.

He was injected into the case only when a jury was seated, and it turned out to be nine blacks and three whites. And we filed a motion to have him kicked out on the ground this was cheap gesture. He then put on a big spiel about not using the "n" word and made the mistake of going up against Johnnie Cochran on the matter of African-American pride and got slaughtered. So Chris Darden was a fish way out of water, the defense wasn't brilliant. It put in a strong case because it had a strong case.

SLIWA: Mr. Bailey, when Robert Shapiro first came on board as O.J.'s attorney, it was thought that a black attorney, high profile, was needed to make the racial part of case. So clearly the defense was already dealing in racial terms and to suggest that Chris Darden had to be dealt out of the deck of the prosecution because he's black -- well, how do you suddenly explain the emergence of Johnnie Cochran as the lead attorney, taking over for Robert Shapiro the white guy?

BATTISTA: I have to take a break here. We'll answer that when we get back. Gerald in Illinois, though, says the "O.J. Simpson case did not divide America. America is already divided, especially in the area of the law. Issues such as racial profiling send a glaring message that minorities are still perceived in a negative light. Stay with us.

(COMMERCIAL BREAK)

BATTISTA: All right. I'm sorry we had to take quick break there, and Mr. Bailey, I'm sure you wanted to address Curtis on that point.

BAILEY: Yes, I do. Curtis, as usual, has not done his homework. If he had he would have discovered that Bob Shapiro was never to be lead counsel. If he'd tried any murder cases he'd tried none of significance. Johnnie Cochran was the first one asked and refused initially because Michael Jackson objected. He relented, Cochran joined the team. But he was destined to be lead counsel right from day one. It had nothing to do with race. We didn't even know if the case would be in Santa Monica or L.A. when that decision was made.

HUTCHISON; Let me just say something else here. You know, beyond just the courtroom itself, I do think this. You know, O.J. Simpson, no matter what you think about him, did simply -- was emblematic of that big divide in America. I think it emerged in courtroom in the case at many points during the case. But I think at the same time it emerged outside the trial in a much bigger way, and I have to tell you, six years later the fact that we're still talking about it, the fact that we're still clashing over it -- it still tells me it's still with us in a very big way and it's still very racially divisive.

BATTISTA: When and how do we bridge this divide?

HUTCHISON: Well, I think there is -- what have we learned? What's really the lesson we've learned from this? You know, I think in one sense that we have learned the lesson that race is a polarizing, race is an emotional and race is a very divisive element in America. No question about that. That's not rocket scientist stuff. But at the same time, have we learned from this? Can we in fact sit down, can we in fact air our differences? Can we in fact dialogue with each other and can we at least try to understand why we do differ and can we do it civil way and then can we move ahead? Is that possible? If it's possible, then I can say we made progress.

SLIWA: I tell you what, Bobbie, I tell you what. We'll all wait for O.J. to find the real killers because we know he's working real hard on that golf game in Florida to find them.

BATTISTA: All right, Curtis. That's the last word. Curtis Sliwa and Earl Ofari Hutchison and F. Lee Bailey, thank you all very much for joining us. We'll take a quick look here at our on-line viewer vote. The question was: Do you think O.J. Simpson was guilty of the murders beyond a reasonable doubt. 75 percent of you are saying yes, 25 percent no. We don't know of course what the racial breakdown of that is. But you can guess.

We're out of time. We'll see you again tomorrow for more TALKBACK LIVE. Join us then.

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