Andrew E. Taslitz

excerpted from: Andrew E. Taslitz, An African-American Sense of Fact: the O. J. Trial and Black Judges on Justice, 7 Boston University Public Interest Law Journal 219-249, 219-223, 246-249 Spring 1998 (188 Footnotes)

The recent verdict against Orenthal James ("O. J.") Simpson in the civil case raised renewed cries of racial bias in the criminal case, bias discussed in the media and in the private conversations of White America. The O. J. jurors in the criminal case, it was said, acted out of racial solidarity because most of the jurors were Black. Alternatively, the jurors knew of O. J.'s guilt but wanted to "send a message" to police to halt racist practices in enforcing the law. Still others saw the original verdict as evidence of Black gullibility, emotionality, even stupidity, in the face of overwhelming evidence of guilt. The civil verdict, in which a predominantly White jury voted against O. J., seemed to vindicate the anti-criminal-jury-verdict sentiments. Indeed, new evidence, including O. J.'s own testimony, caused many African-Americans who originally believed in O. J.'s innocence to change their minds.

Some commentators sought to rebut these assaults on the criminal jury by taking what amounts to a color-blind position on O. J.'s guilt. Law professor and O. J. criminal defense "dream team" member Alan Dershowitz is the best-known of these commentators. Dershowitz maintains that any sensible, informed observer would have (or should have)had a reasonable doubt in O. J.'s criminal case. As such, Dershowitz asserts that the attacks on the reasoning of the mostly Black criminal jury are unwarranted.

This analysis is ultimately a facile one, both because it ignores the reality of a racial divide that creates profound differences in how Whites and Blacks view the world and because it simply does not ring true for most of White America. To white America, O. J. looks guilty. An alternative position is that African-Americans and White Americans have different epistemologies, different assumptions about how one can know what "really" happened. These differences are not simply variations in the gut instincts of the masses but are part of the warp and woof of the theoretical writing of Black educated elites. This essay focuses on the theories of these elites.

This essay uses the book Black Judges on Justice to examine the theoretical views on fact-finding embodied in the statements of Black trial judges. This book consists of a series of interviews with Black jurists on how their own theories of justice come into play in their courtrooms. The purpose of this review is to illuminate the African-American sense of fact as illustrated by these judges' comments. That sense differs from the White sense of fact in several ways. First, Whites place tremendous emphasis on perceived evidence of character. To Blacks, character also matters. However, Blacks understand, in a way that Whites do not, that the exigencies of the situation - poverty, lack of education, structural unemployment - rather than character, explain much behavior, including crime.

Second, Blacks are particularly wary of the roles of stereotypes, generalizations, assumptions, and preconceptions in fact-finding. It is, of course, impossible to reason without these hallmarks of human cognition. But African-American jurists seek to minimize these influences, and to individualize justice by focusing as much as possible on the unique particularities of each case.

Third, Blacks are skeptical of the police. They are aware of police abuses and police motives to lie. Consequently, Black jurists do not automatically accept police testimony as gospel. They will subject such testimony to careful scrutiny.

Fourth, Blacks fear that they have unequal access to the resources necessary to fair fact-finding, such as information, competent counsel, and an unbiased and diverse jury. Black jurists are on guard against the way that these inequalities can affect the accuracy of verdicts.

These four theses are not proven but simply suggested by the jurists interviewed for Black Judges on Justice, and mostly by a subset of those jurists - the trial judges who face these issues everyday. The hope is that these suggested theses will spark a debate about Black evidentiary epistemology, including further research to support, refute, expand, or modify the theses made here. Furthermore, this article will suggest to White America that verdicts like that in the O. J. case may be fully consistent with a logical, persuasive, coherent view of fact, articulated by Black elites but possibly reflective of the views of Black masses. Indeed, social science research suggests that the African-American sense of fact sometimes may more accurately reflect reality than does the White sense of fact. Reason, not racial solidarity or a "pay-back" mentality, can explain the O. J. criminal verdict, even in the retrospective light of the civil trial.

This article will repeatedly refer to a "Black" or "African-American" sense of fact, contrasting it with a "White" sense of fact. This view is not essentialist. Many Whites may agree with much that is written here, while many Blacks may not. The article argues only that differences in life experience create a greater on-average likelihood that African-Americans will embrace much or all of this alternative sense of fact than will Whites. The statements of the Black jurists examined here reflect this alternative sense of fact.

. . .

This article has argued that the jurists interviewed for Black Judges on Justice adhere to an alternative sense of fact than that of White America, a sense rooted in the differences of the African-American experience. This different sense of fact explains the O. J. criminal verdict as the product of reason, not group bias or resentment.

However, Black-White differences should not be exaggerated. The African- American sense of fact should be viewed as a variation on an American sense of fact. Both Black and White Americans share in the many commonalities of American culture. While Blacks might give relatively more emphasis to situation than to character, character matters to Blacks and Whites. Many media images and religious messages of good and bad character will be shared. Although Blacks may be more sensitive than Whites to the dangers of stereotyping, both share an American commitment to the ideal of individualized justice. While Blacks are more skeptical than Whites of the police, Whites also abhor police perjury and incompetence and are increasingly more aware of the problem, thanks to a media somewhat more sensitive to the occasional failings of our men and women in blue. While Blacks better understand the inequality in access to fact-finding resources bred by racism, both Blacks and Whites accept aspirational notions of equal opportunity to present a case to unbiased fact-finders. Cases like O. J. stand out because the differences were highlighted in a case charged with evidence of racist police abuses. In many other cases, however, Blacks and Whites talk across and learn from their differences. Everyday, throughout America, racially mixed juries reach unanimous verdicts. From difference-in-dialogue comes commonality in belief. And the jurors who leave these experiences learn to respect and cherish both the differences and the common ground. This essay has sought to extend that respect beyond individual experiences, to understand that even decisions with which we disagree can result from logic, sound experience, and a commitment to justice