Back in the mid-1990s a banker named Bill Berry created a website called Meanderings. It’s now off-line, but you can find it in the WayBackMachine. I worked closely with him, providing content, ideas, and editing. This was the early days, known in retrospect as Web 1.0. There was no social web, no blogs, no Google, not quite no-nothing, but not very much. It was mostly hand-coded HTML. During the O.J. trial we teamed up with VIBE Magazine to provide commentary on the trial. At the time Lester Kenyatta Spence was a graduate student; he’s now on the faculty at Johns Hopkins.
I contributed several pieces. There was a short piece giving my reaction to initial news about the crime. I posted that here yesterday. I wrote a somewhat longer piece about his excellence as an athlete. I argued that he was better as a football player than his “Dream Team” lawyers were at the law. While Simpson was a First Level athlete, his lawyers were mostly Second and Third Level lawyers. Here is that argument:
Meritocracy: How good is the Best?
We need to take the measure of Mr. Simpson’s athletic accomplishment. Of course that accomplishment, no matter how great, does not promote him to an exalted state in which wife-beating is permitted, nor does it have any bearing on his innocence or guilt in the matters on trial. But that accomplishment has a great deal to do with why his trial is fascinating to people around the nation and the world.
It is that accomplishment which put Mr. Simpson in a position to become a celebrity. If he hadn’t been a great athlete, he’d be just another man accused of murder. In fact, if he hadn’t been a great athlete, he might well have died on the streets twenty or thirty years ago, for that’s where his life was headed until he decided to pursue athletic excellence.
In taking Simpson’s measure I want to do so both in an athletic context and in a more general context. In that more general context I want to measure some of the players in this trial against the standard Mr. Simpson met as an athlete. I do this, not because I think it has any bearing on the outcome of the trial, though it may have, but primarily out of an interest in excellence. Just how good are the players in this, “The Trial of the Century”?
Simpson on Record
The easiest way to approach O.J. Simpson’s excellence is to look at the stats. His pro career rushing total of 11,236 yards was second only to Jim Brown’s total when Mr. Simpson retired at the end of 1979, though several backs have since surpassed both, most notably Walter Payton. His 1973 season total of 2003 yards was the first 2000-yard season on record and is second only to Eric Dickerson’s 2105-yard 1984 season – a season with 16 games, 2 more than Mr. Simpson’s 1973 season. As Arthur Ashe notes in A Hard Road to Glory, Simpson was the premier running back of the 1970s and certainly one of the best of all time.
Whether or not he was The Best is another matter. In general, I think attempts to name “the best of...” are pointless. There are few fields where any one person is so dominant that one person is clearly head-and-shoulders above all others. That certainly is not the case with football running backs. There are a number of men who are judged to be among the very best -- Jim Brown, Walter Payton, Gale Sayers, and so on. Mr. Simpson clearly played at that level.
Instead of worrying about the one best, I propose that we think in terms of Levels. The best practitioners operate at the 1st Level. These 1st Level people have comparable ability; each has his or her strengths and weaknesses, but overall, they achieve the same level of results. And they are distinctly better than 2nd Level folks, who are comparable to one another but distinctly better than 3rd Level folks, and so on down the line. Daniel F. Chambliss at Hamilton College used such a notion in a recent study of swimming: The Mundanity of Excellence: An Ethnographic Report on Stratification and Olympic Swimmers. He noted that nationally ranked swimmers aren’t simply faster than lesser swimmers. Their technique is notably different as is their whole approach to the sport. They operate in a different world. That’s what levels are about, different worlds of athletic action.
In the world of professional running backs Simpson, Payton, Sayers and Brown, and so on, are roughly comparable to one another, with no one clearly dominant over the others. That puts O. J. Simpson is in the 1st Level of running backs. At the 2nd Level you have men like Larry Csonka, Frano Harris, and John Riggins. Two of these, Csonka and Riggins actually posted more career yards than Simpson did. However, these three all had a lower average carry than Simpson – 4.3 (Csonka), 4.1 (Harris), 3.9 (Riggins), 4.7 (Simpson). The 1st Level runners have a style and flair that these 2nd Level runners do not. As for the 3rd and 4th Level runners, these are the guys who do their job, and do it well, but they don’t do it well enough and long enough to place high in the record books or to satisfy one’s desire for power and elegance.
Measuring the Legal Eagles
How many of the lawyers involved in Mr. Simpson’s trial are 1st Level lawyers? Of course, a number of those lawyers and many in the press would have us believe that it’s the 1st Level all around, both prosecution and defense. However, for reasons I’ll get to shortly, we need to consider the possibility that none of them are 1st Level lawyers or, at most, only one or two of them. In saying this I don’t want to imply that they aren’t good lawyers. Rather, I want to emphasize the stringency of the standard of judgment I’m asking you to apply.
Compared to the population at large, the typical NFL bench warmer is an excellent athlete. Compared to Mr. Simpson that bench warmer is mediocre to poor. That’s the standard. We are so used to watching pro football that we too easily assume that level of ability is a routine human accomplishment. Very few football players get to play varsity ball for powerhouse college teams and very few of those make it into the pros. A pro bench warmer is a very good athlete indeed.
There are lots of lawyers and judges in this country, 777,000 lawyers and 38,000 judges according to the 1994-1995 American Almanac. I’m not a lawyer and I don’t know more than a handful of them so I’m not in a very good position to judge legal talent. Since I was trained as a scholar and have spent a substantial chunk of my life in the academic world, I propose to use my sense of the that world as an indirect way of getting some sense of how to separate lawyers into Levels. The educational requirements for lawyers and professors are broadly similar – several years of work beyond the Bachelor’s degree – and the total numbers are similar, 772,000 college and university teachers. So let’s assume that the distribution of ability is pretty much the same in both groups.
I’ve spent my academic career at fairly good places, undergraduate work at Johns Hopkins, graduate work at the State University of New York at Buffalo, a faculty appointment at the Rensselaer Polytechnic Institute. In that time I’ve worked with only two people I’d consider to be 1st Level. That is to say, I’ve worked with only two scholars whose intellectual ability is comparable to Mr. Simpson’s athletic ability. I’d guess that the norm at those institutions is 3rd Level, but there are a reasonable number of 2nd Level people and, alas, 4th Level too. However, since those are all fairly elite institutions, I think we have to add a 5th and 6th Level if we want to cover the entire academic establishment in the United States. Are there any NFL players who aren’t at least 3rd Level athletes? Perhaps, but not many. The NFL is an exclusive club, a bit more exclusive than the faculties of Harvard, Cal Tech, Johns Hopkins, or Berkeley.
It doesn’t take great brilliance or creativity to get a Ph. D. Moderate intelligence and zero creativity are adequate as long as you are willing to work hard. I’ve been told that the law is like that as well. If moderate intelligence, zero creativity, and hard work will get you into the club, then high intelligence, moderate creativity, and hard work will get you into the 3rd or perhaps even the 2nd Level. To get into the 1st Level you need to be brilliant, very creative, and work hard. Not many academics or lawyers meet that standard, the O.J. Simpson standard.
So, how do we rate the legal talent involved in this trial? I’d guess we are dealing with mostly 2nd and 3rd level lawyers. The Los Angeles County D.A.’s office would certainly attract some of the best of the lawyers who want to work as criminal prosecutors and they are probably using their best in this case. It’s not unreasonable to think of these attorneys as being equivalent to the faculty at an Ivy League school. On the defense side, Mr. Simpson’s money allows him to hire high-priced legal talent. That in itself isn’t a measure of ability and mastery, but I doubt that a no-talent hack could make it in that league. It is necessary to have some appreciable degree of mastery, or the good sense to hire it to one’s staff. So I have little trouble granting the prosecution and defense teams 2nd and 3rd Level status.
But, are there any 1st Level lawyers involved in this case? On general grounds I wouldn’t expect more than 2 or 3 simply because there aren’t that many lawyers with that kind of ability and it would be extremely difficult to get a half-dozen of them involved in the same case. How many NFL teams have had a half-dozen 1st Level players on the team at one time? Zero. How many 1st Level players are there in the whole NFL at any one time? Do Pro Bowl teams have a Mr. Simpson at every position? No way! The very suggestion seems absurd.
I’m reluctant to assert whether or not any of the lawyers involved is 1st Level. I note that the legal community in cyberspace and elsewhere has been quite critical of the legal craftsman ship displayed in this trial. However, many commentators in the media and in cyberspace have been giving Barry Scheck high marks for his cross examination of criminalist Dennis Fung. That work seems to be the best of the lot. At the moment I take it that we have one possible 1st Level lawyer involved in this case. No matter how you cut it, Mr. O.J. Simpson’s fate is being argued by lawyers who don’t carry an argument as well as he carried a football.
In particular, Mr. Simpson’s defense “Dream Team” doesn’t deserve the name, not if it is meant to indicate the level of excellence present on the 1992 United States Olympic basketball team, which included Magic Johnson, Michael Jordan, Charles Barkley, Patrick Ewing and Larry Bird. Mr. Simpson is in that league, but neither his attorneys nor the prosecution team are. Legal skill is one thing; a big ego and a flair for publicity are a different matter. Thus we need to qualify the common observation that Mr. Simpson has bought himself a rich man’s defense, one that is clearly beyond the means of the vast majority of criminal defendants. That is true in a measure; few could afford to hire these legal celebrities. But we need also to consider the possibility that this defense, like much of Mr. Simpson’s life, is a rich man’s folly in which flash and dash replace substance and discipline, in which the sizzle consumes the steak.
A Tentative Judgement
The arguments being made in this case aren’t going to be cited by future lawyers and legal historians as landmarks of legal reasoning. Judge Ito’s conduct is not going to be held up as an example of wisdom and courtroom authority. This case may well be remembered for the amount of time, effort, and money which is being squandered on it, but it doesn’t look like it will provide many examples of superior legal and courtroom craftsmanship.
Thus Mr. Simpson’s trial mocks the greatness on which it ultimately feeds. To be sure, that greatness is two decades in the past. But that greatness made it possible for him to become the wealthy 4th Level actor, corporate pitchman, and all-around celebrity that he was at the time of the murders. The fact that one of the victims was the defendant’s white wife gives the case some extra symbolic power; but not even that would be enough to generate national attention for a nondescript defendant.
No, it is Mr. Simpson’s athletic greatness that provides the cultural energy needed to make his trial into the so-called “Trial of the Century.” And yet this so-called “Trial of the Century” reflects a faith in celebrity and hype which undermines the deepest value inherent in that athletic greatness.
