THE BLOG
07/02/2009 05:12 am ET | Updated May 25, 2011

A Prosecutor's View : OJ is Banking on the Race Card, Again!

It is no surprise that OJ is appealing his conviction. After all, what else does he have going on for the next 33 years? Will he continue his supposed attempts to search for Nicole Brown's and Ron Goldman's real killer? Or will he find creative new ways to bilk the Goldmans out of the money they rightfully deserve?

OJ is going back to the ploy that worked the first time: it's one of the oldest trial advocacy tricks in the books: If the facts are on your side, argue the facts; if the law is on your side; argue the law; but if nothing is on your side, argue....race!

Trial advocacy is what turned the OJ Simpson double murder case into one of the biggest miscarriages of justice in legal history, and definitely the biggest case in my generation. While everybody has opinions about the specifics of the case, it really all comes down to this: Johnnie Cochran out-advocated the prosecution when he spoke from passion and feeling. When Cochran spoke, people listened and believed. Johnnie Cochran was able to take his own personal passion and pride for his race and effectively transfer it to one of the whitest black men out there -- OJ Simpson.

There are no two ways about it -- without Johnnie, the real killer (and I mean OJ) is out there for everyone to see. And now, it's time for one of the world's most infamous and narcissistic criminals to finally get what he deserved. Has OJ forgotten that this time, it was his actions and crimes that were the basis for his trial and conviction?

What about that all-white-jury thing? I know what you're wondering... isn't that a viable argument for appeal? Look, both the prosecution and the defense got to choose who the jury commissioner put on the jury panel. It is the lawyers' job (yes, both the prosecutor's and defense attorney's job) to pick the best jurors they can.

I'm sure that prosecutors did not want an all-white jury for no other reason than to avoid the appearance of racism. But at the end of the day, the prosecutor's goal is not to worry about appearances, but to worry about actual bias. Out of the ten available preemptory challenges, the prosecutor exercised only two -- against two black women. One woman cited her strong religious ties and admitted that she would be inclined to "forgive" OJ; the other said she was hesitant about sending anyone to prison.

I ask you, don't you think the prosecutor has a duty to remove someone who won't convict due to her predisposition to forgive? The same argument applies to someone hesitant to send a person to jail, regardless of race.

Clark County District Attorney David Roger was not a racist; he was merely being a good lawyer and advocate. By doing so, he ensured that the jury did its job, too. Roger accomplished what the Los Angeles prosecutors was unable to do in 1994: he laid out the facts, proved his case by speaking with passion and feeling, and consequently did his best to win the case.

As Roger himself said, "While the appeal is certainly his constitutional right, I am confident the guilty verdict from the Clark County court will stand." And I agree!