Radley Balko is correcting his mistake in attributing a quote to the Supreme Court that actually came from a Court of Appeals decision. But in correcting the error, he makes another — implying that the Supreme Court’s failure to reverse the Court of Appeals decision somehow means that the Supreme Court approves of it (or at least didn’t strongly disagree with) the lower court’s holding:

In fact, the case was decided in the D.C. Court of Appeals (though the Supreme Court apparently didn’t object enough to review it).

Balko’s implication is based on a commonly held but entirely erroneous belief that the Supreme Court’s refusal to take a case signifies approval of the reasoning and/or the result. This is most assuredly not the case.

As this link explains, review in the Supreme Court is a matter of judicial discretion. The Supreme Court exists,

not to correct errors in lower court decisions, but to decide cases presenting issues of importance beyond the particular facts and parties involved. The Court grants and hears argument in only about 1% of the cases that are filed each Term. The vast majority of petitions are simply denied by the Court without comment or explanation. The denial of a petition for a writ of certiorari signifies only that the Court has chosen not to accept the case for review and does not express the Court’s view of the merits of the case.

The Supreme Court’s decision not to review the Court of Appeals case cited by Balko does not in any way constitute agreement with the case, and Balko is wrong to imply otherwise.

P.S. Xrlq tells me that the case Balko quoted held against jury nullification — so even if Balko’s bogus “denial of cert. equals approval” principle applied (which it doesn’t), that would argue against Balko’s view and not for it.

[This is Part Six of a series of posts on the O.J. Simpson trial. Part One is here; Part Two is here; Part Three is here; Part Four is here; Part Five is here.]

In response to a couple of my earlier O.J. posts, I noticed that many of my commenters blamed the not guilty verdict on the performance of Marcia Clark and Chris Darden, and said that Daniel Petrocelli did a much better job in the civil trial, and would have won the criminal case as well.

Without meaning to take anything away from Petrocelli, he had a heck of a lot more going for him than his ability, which I agree seemed to be at a high level.

The biggest thing he had going for him, of course, was the jury pool. Trying a case like this in Santa Monica, where the criminal trial should have been held, is a far cry from trying it in downtown L.A.

Second, he had a lot of evidence that the criminal jurors didn’t have — like the photo of those “ugly-ass” Bruno Magli shoes.

But one of the biggest things he had going for him was O.J. himself. See, in the civil trial, the plaintiffs were allowed to call O.J. You can’t do that in a criminal trial.

How important was this? You need only review Petrocelli’s final argument to the jury to see that it went to the heart of Petrocelli’s case. Let me quote several paragraphs of that argument to give you a flavor:

That is the man who attacked them, who confronted them, and who
killed them on that Sunday evening in June. The defendant, Orenthal
Simpson.

. . . .

So what did Mr. Simpson say about all this evidence when he took the
stand?

What did his fine lawyer, Mr. Baker, ask him about?

Did Mr. Simpson explain why his blood and his DNA were found dripped
on the ground near the two victims. Did he talk about that?

Did he explain why his glove was found next to these two murdered
people? Did he explain that?

Did he explain why his other glove was found back at his house? Did
he talk about that?

Did he explain why his hat, his knit cap, was at the murder scene?
Why it had his head hairs in it? Why it had his clothing fibers? Did
he explain any of that? Not one word.

Did he explain why his blood was in his car that night? Did he
explain why Ron Goldman’s blood was in his car that night? Why
Nicole’s blood was in his car that night? Did he say anything about
this?

Did he talk about why his blood, O.J. Simpson’s blood, was dripped
on the driveway of his property that night? In his foyer? Up in his
bathroom right next to his bedroom? Did he talk about that?

Did he explain why his socks had his blood, why his socks had
Nicole’s blood on them, on both socks? Not one word did you hear
when we waited to hear.

Did he talk about what happened to those brown Aris leather light
gloves, size extra large, that we saw him wearing in those photos of
him at the football games? The ones that are identical to the murder
gloves.

Now, if they are not the murder gloves, as he says, why didn’t he
bring them to court? Why didn’t he bring them here and say here are
my gloves. I am innocent. Did he say any of that? Did he talk about
that?

Did he say anything about the 30 photographs, over 30 photographs in
fact, of him wearing those “ugly ass” Bruno Magli shoes that he
swore to you, under oath on that witness stand, that he never owned
and never wore? Did he talk about those photos?

No, he didn’t.

Did he explain, by the way, how one of those photos could be a fake
if it was published eight months before the murders in a Buffalo
sports newspaper? Did you hear anything about that?

You didn’t hear a word.

If those were not the shoes he was really wearing, as he said, did
he come here that day and bring his shoes that he did wear that day
at the football game? Did he bring them to court? Did he show them
to you? Did he say here are the shoes I was wearing; I wasn’t
wearing those ugly ass shoes. I was wearing these shoes. Did he
bring those shoes here to show them to you to prove his innocence?

How about a photograph. Did he produce a single photograph?

This guy’s got to be one of the most photographed people in the
world, perhaps. Sitting there on a side line, with thousands of
cameras, television cameras.

Did he bring a photograph wearing the shoes he claims he was really
wearing?

Not one.

Did he explain to you how he could cut himself the night of the
murders between 10 and 11, at the time these murders occurred, on
his left finger, and yet not know how?

“I don’t know how I cut myself.”

Did he even talk about that?

Did he explain to you last week how he could cut himself so badly in
Chicago, he claims so bad as to leave a permanent scar on that
finger, and yet not know how he did it?

Did he talk about that?

This was his chance to tell us what the answers were. Confronted
with all this evidence, highly incriminating, conclusively
incriminating evidence, pointing right at him, and what did he
choose to say, what did he choose to tell you, ladies and gentlemen
of the jury?

Well, he talked about his accomplishments as a football player. How
he won the Heismann trophy. Ran 2,003 yards in one NFL season. How
he broke records and received awards. We heard all about that.

We heard about his work for Hertz, Chevrolet, the jobs as a
broadcaster, as an actor.

He dropped some names of famous people he socialized with. I’m sure
you remember that. Kareem Abdul Jabbar, and people like that.

Talked and talked and talked about golf. A lot about golf.

And he went to great lengths, ladies and gentlemen, to talk about
his character. Remember how he was asked, and you heard Mr. Baker
say in his opening statement about this Hall of Fame speech, about
how a guy’s character will always endure.

Well, you heard about that.

We heard about how he always tries to help others.

We heard that he still goes to his mother for advice.

And then he talked of his honesty, and he told us, looking you
straight in the eye, right here, and said, I have never, ever
attempted to tell a lie about anything important in my life. Now, we
heard him say that. He talked about Nicole, too, of course. About
how he tried to be a good husband to her. About how he was a good
father to their children. And about how he would never harm her.
These are the things Mr. Baker asked him about and these are the
things he spoke about. The bottom line here, ladies and gentlemen,
is that they would like you to believe that that handsome man with
the charming smile, the expensive suit, who’s lived the life of
fame, celebrity and fortune, and who claims to be dedicated to his
family, flawless in character, incapable of telling a lie, that that
man could not possibly be responsible for the deaths of Nicole Brown
Simpson and Ronald Goldman. But it is that very same sense of
superiority, ladies and gentlemen, that Mr. Simpson has attained
that explains why he has absolutely no sense of responsibility for
his actions or his obligation to tell the truth or for anything
else. He’ll talk about responsibility. Can you put the picture up?
(Photo is displayed on Elmo.) What kind of man, ladies and
gentlemen, confronted with this bruised and battered picture of
Nicole, says, I take full responsibility for causing all those
injuries, but I didn’t hit her, I didn’t strike her, I didn’t slap
her, I didn’t do anything wrong, I was just defending myself, I was
just trying to get her out of my bedroom. What kind of man, who has
shared a bedroom with his wife for 10 years, calls it my bedroom, my
house, my property, me. What kind of man takes a baseball bat to his
wife’s car, right in front of her, and then says he was not upset,
he was not out of control, he was not in a state of rage, and she
wasn’t upset at all, not the slightest, even though she went to call
the police for help. What kind of man kicks open a door so hard as
to break it in pieces and then says it was just a reflex, and
actually went on to blame it on his kids, saying they had broken it
before. What kind of man says his deceased wife’s, voice on a 911
tape, which we played in court, what kind of man says his wife is
lying on that tape when she says she’s afraid and when she says that
he’s going to beat the shit out of her, to use her words. What kind
of man says his deceased wife is lying when you heard her voice
trembling on that tape. What kind of man says cheating on your
wife isn’t a lie, which is what he said. What kind of man says that
his wife’s most private writings about her feelings and attitudes,
in fact her last written words, which I will show you later on, are
a, quote, pack of lies, end of quotes. What kind of man, when shown
30 photographs of him wearing those Bruno Magli shoes, looks you
straight in the eye with a straight face and says that’s me, it’s my
head, that’s my jacket, that’s my tie, that’s my shirt, those are my
arms, that’s my hands, that’s my belt, pants, not my shoes, those
are people I know that I’m taking pictures with, but no, not my
shoes, I wasn’t wearing those shoes. What kind of man says that to
you with a straight face? What kind of man says that virtually every
other person in this case who testified on the stand against him is
either lying or mistaken, and he’s right. What kind of man would try
to ruin the lives of innocent people just doing their jobs, accusing
them of fabricating evidence, planting evidence, committing perjury,
just to protect himself. And what kind of man comes into court and
looks you straight in the eye and says I never lied about anything
important in my life, and then lied about everything important in
this case. Well, let me tell you what kind of man says those
things, ladies and gentlemen. Doesn’t take a rocket scientist to
figure it out. You can take that down, Steve
(indicating to Elmo). A guilty man. A guilty man. A man with no
remorse. A man with no conscience. This man is so obsessed with
trying to salvage his image and protect himself that he’ll come into
this courtroom, knowing the whole world is watching, and he will
smear the name and reputation of the mother of his children while
she rests in her grave. This is a man, ladies and gentlemen, who I
submit to you has lied and lied and lied to you about every
important fact in this case. Every one. Did you notice, by the way,
how Mr. Baker referred to Mr. Simpson on the witness stand as O.J.
and Juice, even though every other witness was addressed by his or
her formal name? We all know Mr. Baker is a very experienced lawyer,
and I’m sure that was no accident. O.J. Simpson has been marketing,
manufacturing, packaging and selling his image to the American
public for over 30 years. And know what they tried to do in this
courtroom, he and his defense team, to sell you an image, O.J.,
Juice, an image, a personality. I even asked him, are you an actor?
He says no, I’m a personality. Now, we are not here, though, in this
important trial to be sold anything and we’re not here to talk about
O.J. and Juice and talk about images. We’re here to talk about a man
named Simpson, a deeply flawed man named Simpson, and what he did on
June 12, 1994. And in the final analysis, that’s what this case is
all about, ladies and gentlemen. It’s about fixing responsibility
for the deaths of these two innocent victims. And we would all agree
that in this society we all have to accept responsibility, we all
have to be accountable for what we do. All of you folks, you are
responsible in your lives, to your families, at your jobs, on this
jury. You get up every morning, you come here, you listen, you
concentrate, you focus, you take notes. If you break the rules, you
know there are consequences such as being discharged from the jury.
You understand your responsibility. You accept it. Now, those are
the rules that we all have to abide by. Those rules don’t change,
ladies and gentlemen, if a person has won the Heismann trophy or
has broken football records. You all agreed when this case began
that you would treat Mr. Simpson by the same standards and
responsibility, the same rules as anybody, as you would want to be
treated, and I have no doubt that you will do so. And I submit to
you that when you judge Mr. Simpson by the same rules, by the same
standards of responsibility that you would judge any other person,
what you saw in this courtroom, what you heard in this courtroom,
can only lead you to conclude, ladies and gentlemen, that this man
is responsible for killing two people on June 12, that he’s utterly
incapable of accepting responsibility for his actions, that he can
not and will not tell the truth either. Therefore it is up to you,
all of you, to fix responsibility on him for what he did for the
sake of the victims, their families, and for some small measure of
justice.

As you can see, one of the central pillars of Petrocelli’s argument was to list the things that O.J. couldn’t explain. O.J. killed himself on the stand. He was the plaintiffs’ best witness. And make no mistake: even though Petrocelli refers to O.J. on the witness stand during the defense case, the plaintiffs called him first. Because they could.

This argument was not possible in the criminal trial, because O.J. did not testify. And the Constitution prohibits prosecutors from calling criminal defendants to the stand. It has been interpreted to prevent prosecutors from even mentioning the fact that the defendant has failed to testify. That is considered an infringement on the defendant’s right to remain silent.

The prosecutors in the criminal trial did everything they could to provide incentives for O.J. to take the stand. They decided not to introduce his statement to police — a combination of damning and self-serving assertions — hoping that he would take the stand to offer the self-serving information himself. It didn’t work. But they tried their best to get him on the stand. They just couldn’t do it. His lawyers were too smart, and the Constitution protected him.

It didn’t in the civil trial. That, and the jury pool, were the two critical differences. Sure, Petrocelli was great. But the jury pool and the ability to force Simpson to testify were more important.

P.S. It is conventional wisdom among prosecutors that defendants’ statements to police should rarely be introduced into evidence, at least if the statement has self-serving elements (and most do). The theory goes that our cases often get stronger when the defendant takes the stand, because criminal defendants are often terrible and obvious liars who alienate the jury with their patently ridiculous nonsense. If we offer the defendant’s self-serving explanations in our own case, the theory goes, it will reduce the incentive for the defendant to take the stand and shoot himself in the foot.

Like all conventional wisdom, there is something to the theory in some situations, but it doesn’t apply in every situation. I have had many criminal defendants implode on the stand — not necessarily due to any stunning cross-examination skills I have, but often because they are just sometimes terrible, terrible liars. If you plan out a cross-examination and take into account what the defendant is likely to say, it is often the case that his self-serving lies end up directly contradicting one another. It’s satisfying when that happens.

But there are other times when you want to introduce a criminal defendant’s statement to police, despite the fact that it may have self-serving elements. If he says something that corroborates strong physical evidence in your case, for example, you might consider introducing that statement. If he gives a story that is so patently ridiculous that the jury will take it for an obvious lie — either due to its intrinsic silliness, or due to the fact that it contradicts solid physical evidence in your case, then again, you may want to consider introducing it.

I agree with Vincent Bugliosi that O.J.’s statement to police was gold, and should have been used in the trial. It’s beyond the scope of this post to explain why; read Bugliosi’s book if you’re curious. It wouldn’t have changed a thing, but they still should have introduced it.