Fact-checking Episode 3 of The People v. O.J. Simpson

Cuba Gooding, Jr. as O.J. Simpson (left) and Courtney B. Vance as Johnnie Cochran. Photo: Byron Cohen/FX

FX’s new limited series, The People v. O.J. Simpson: American Crime Story, takes us through the 1994–1995 criminal trial assessing football star turned Hollywood icon O.J. Simpson’s guilt or innocence in the murders of his ex-wife, Nicole Brown Simpson, and her friend Ronald Goldman. We’re walking through all ten episodes with author, magazine editor, and UCLA communication studies professor Jim Newton — who was the Los Angeles Times’ lead reporter for the duration of Simpson’s arrest and trial — in an effort to identify what People v. O.J. handles with care versus when it deviates from documented fact and common perception. The intention here is less to debunk an explicitly dramatized version of true events than to help viewers piece together a holistic picture of the circumstances surrounding Nicole and Goldman’s murders and O.J.’s eventual acquittal. In other words, these weekly digests are best considered supplements to American Crime Story, rather than counterarguments.

Below are Newton’s insights into the veracity and potency of events and characterizations presented in “The Dream Team” (read his take on episode two, “The Run of His Life,” here).

What They Got Right

The Magazine-Cover Controversy
“I do regard that as one of the truly awful journalistic moments of this case,” says Newton flatly. What prompted Time magazine to [darken O.J.’s image on its cover] remains a mystery to me. It’s portrayed accurately here, as far as I can tell. Those side-by-side covers of Newsweek and Time were so striking in the moment, and I just can’t imagine what was in the head of an editor who decided to make him blacker. I thought the show did a great job of capturing what an abomination that was.”

The Motivation to Move Simpson’s Trial Downtown
“That’s a really interesting moment in the show,” offers Newton. “I remember the debate about venue. I’m not sure, given the jury-selection system in Los Angeles, how different the jury composition would have been in Santa Monica. What is certainly true, and the show gets this, is that the ‘optics’ would have been different in a beachside courthouse with a probably somewhat whiter jury. My sense from the D.A.’s office at that point was they felt so confident the case was easy, that why not try it to a jury that would also serve the social function of showing this wasn’t racism at work? To be blunt, wouldn’t it be better, from their perspective, if a predominantly black jury convicted Simpson? Because I think they felt confident they could persuade any jury to convict him.”

The Prosecution’s Lack of Concern Over Simpson’s “Dream Team”
“Even after [Johnnie] Cochran came aboard, I think they underestimated what they were dealing with,” confirms Newton. “But certainly before that. They saw Shapiro — and the show does a good job capturing this — as a guy who would try to bargain his way out of this case. They saw [F. Lee] Bailey as washed-up, and they were not intimidated at first. Once Cochran came onboard, that began to change. And certainly, once Cochran got to work, that began to change. [Christopher] Darden in particular was mindful of what a change Cochran brought to the environment of this, but at the stage we’re dealing with in this episode, the D.A.’s office was cocky about how they could handle this team, and believed so strongly in their evidence that they thought the rest of it was noise.”

Darden was the D.A.’s Reality Check
“Darden was a natural addition to the team, and not just because he was black, but because he had dealt with police issues,” Newton explains. “He had knowledge of LAPD. He had knowledge of Cochran. [Sterling K. Brown’s] portrayal is, in some ways, the most spot-on of all of them. He always seems to be the guy saying, ‘Well, don’t be sure.’ That rings very true to my memory of the difficulty of the position he was put in.”

The “Cash for Trash” Phenomenon
“Johnnie [Cochran] also had [Michael] Jackson [as a client in his 1993 sexual-abuse trial],” Newton points out, elaborating that, “first in Jackson, and in some ways to a lesser degree in Simpson, there was the question of, ‘Could you trust a witness or source who had taken money to tell his or her story?’ This is where the tabloids in particular really muddied the water on these cases. [Marcia] Clark took a really honorable position that if you’ve been paid to tell your story, you’ve been discredited as a witness. At the same time, that was cutting off your nose to spite your face. To simply decide as a matter of fact that [potential witnesses] can’t be trusted with anything from that point forward is a decision with big implications for the rest of the case, and I think the show did a good job of capturing that in all its nuance. I don’t think there’s a correct answer in all of this. What would a jury have thought of Jill Shively’s testimony that she saw him and the cross-examination that said, ‘You’re just doing this for the money’? I don’t know how 12 people would have evaluated that. What I know is Clark made that decision for them, and therefore, we’ll never know.”

The Death Penalty Was on the Table
“I know we wrote several stories about whether the death penalty would be on the table,” says Newton. “It’s appealing to prosecutors to try a death-penalty case, because that influences your jury. To get on a jury in California in a death-penalty case, you have to be willing to apply the death penalty. That gives you, by definition, a more pro-prosecution jury, because people who favor the death penalty are more likely to convict. That didn’t happen here, but we wrote about it at the time in terms of the strategy in jury selection. It was a double homicide, so it certainly qualified as a potential capital case. It was definitely something that was talked about publicly. I can’t remember whether Clark herself weighed in on it, but I’m sure she would have been asked about it. Someone from the D.A.’s office would have addressed it.”

Mark Fuhrman Was the Worst
“He’s a deplorable police officer,” recounts Newton. “In the course of this trial, one of the things that most stuck out with me is how absolutely appalled other Los Angeles police offers were by his role in this. [Detectives] Lange and Vannatter were furious with him. The notion that a police officer would take the stand and take the Fifth was so beyond the pale. I can’t put into words how apoplectic other police officers were about Fuhrman and his conduct in this case.”

What They May Have Taken Liberties With

The Role of Alan Dershowitz
“He struck me in this portrayal as both taken too lightly and too seriously,” says Newton. “He seems so threatening to the team at one juncture, and then so instrumental to its strategy seconds later, whereas my sense was he was a bit player throughout. I’m not challenging the accuracy of it so much as to say that’s certainly not the way I perceived it at the time. He seemed more of a commentator to me than an actual, functional participant in the team.”

The Newness of DNA
“That all strikes me as part of the show’s intention to make Shapiro be a boob,” suggests Newton, adding, “There’s enough to work with there, but I think it’s sort of cartoonish. Also, the idea [of], ‘Who ever heard of DNA?’ was kind of ridiculous, too. It was a newer science than it is now, but it wasn’t magic. People were using DNA evidences in cases. It didn’t come out of nowhere. Both the particulars of the portrayal of the way that [Barry] Scheck came to the team and the more general theme that DNA was this magician’s work are not really true. I certainly had dealt with multiple cases in which it was an issue. Any criminal lawyer worth his salt anywhere in the United States in 1994 was already dealing with DNA evidence.”

The D.A.’s Surprise That the Defense Case Would Be About Race
“I find that ludicrous,” Newton affirms. “From the first time that Simpson appeared to be a suspect, it seemed to me race was going to be a dominant issue. The notion that the D.A.’s office was taken by surprise by that … I can’t say for sure that’s not true, but I just can’t believe they didn’t understand the racial context of this. It feels to me put on for dramatic purposes that Marcia Clark, much less Gil Garcetti, didn’t understand in 1994 in Los Angeles that a case involving a black suspect and two white victims in Brentwood wouldn’t have a racial context.”

The Depiction of the Author
“I’m curious — mainly from a voyeuristic standpoint, since you know this show is based on [Jeffrey] Toobin’s book — that Toobin came across to me as sort of manipulated,” opines Newton. “The read I took from this was they saw this opportunity to hang the whole case on Fuhrman, and got Toobin to carry their water for them. I’m not even speaking to the truth of that, so much as I was surprised to see that come through in a show based on his own work. That’s not a criticism of them, it’s more curiosity of the show, because I expected the show to be more glamorizing of Toobin. Instead, what I saw was an unflattering portrayal. It is true that that piece really made [Mark] Fuhrman the central point.”

Fuhrman As One-Man Forensic Team
“There’s a moment in the show where they describe Fuhrman as having discovered all the evidence,” recalls Newton, who clarifies, “Well, that’s not true. He discovered the glove. It took hundreds of people to discover all the evidence. His importance is exaggerated in the show, and it was exaggerated in the trial, too, because if you wanted to go down the path of, ‘This is a frame,’ he’s the perfect guy to saddle with that.”

The People v. O.J.: Episode 3, Fact-checked