By: Callie Douthit – April 25, 2016
Since the release of FX Network’s American Crime Story: the People vs. O.J. Simpson, there has been a new found interest in the O.J. Simpson double murder case, dating back over 20 years ago. “The Trial of the Century” was a criminal trial held in Los Angeles trying former NFL star and actor OJ Simpson for two counts of murder for the June 12, 1994, deaths of his ex-wife, Nicole Brown Simpson, and waiter Ronald Lyle Goldman. With a star defense team of Johnnie Cochran, Robert Shapiro, and Robert Kardashian, OJ was acquitted for these crimes by 1995. The prosecuting team included District Attorney Marcia Clark and Chris Darden, with Judge Lance Ito presiding over the court.
As one of the most publicized criminal trials in American history, the OJ Simpson case can reveal a lot about the criminal justice system. When reviewing this case, most scholars will categorize this case as one build solely on race. But, when examining leading District Attorney Marcia Clark’s responses to gendered bias and sexism in and out of the courtroom, the existence of a gendered criminal justice system is revealed. In other words, in this case we see a clear blending of lines between professional and personal life for Marcia Clark, one that doesn’t seem to cross over as much for the other lawyers. In fact, the media coverage and criticisms of Marcia Clark during this trial reveal a biased system where women in law professions are critiqued and held to a different standard than males in the profession based solely on their sex. For the sake of this criticism, I have OJ Simpson trial court transcripts as my sole artifact. Because of the grandiosity of length that these transcripts are, I have chosen just a few quotes to directly analyze under the ideological criticism. The guiding research question for this specific discussion is what can Marcia Clark’s criticism and treatment as a District Attorney by the defense and Court in the OJ Simpson trial tell us about bias in the courtroom?
In the past, gender bias in the courtroom in terms of law profession has been rhetorically examined by multiple scholars, using similar testimonies from lawyers like Marcia Clark. The main research direction of gender bias in law is the focus on discourse between lawyers, the court, and the media based on existent trials. Through a rhetorical lens, Bogoch (1999) explains that “the use of language in the courtroom is colored by gender bias, and that instead of reinforcing the professional identity of women lawyers and judges, in many instances, the use of language severely challenges and engenders it”. In other words, his research reveals that there is such thing as gendered language in the courtroom. It is associated with the understanding that the way men talk in forceful yet compelling manner is what is expected as a professional in the courtroom, and is in turn rewarded. Bogoch (1999) , along with Witz & Savage (1992) make the case that this gendered expectation is one that women feel they must adopt in professional workplaces such as law, in order to be considered just as compelling. But, even when a woman does try to display this sense of particular zeal in the courtroom, then they are accused of being emotional and caring too much—something that is not appropriate for a member of the court (Kennedy 1993). More research on the topic also describes this double bind that professional women face, affecting their ability to establish themselves as authority in a publically favorable light (Thorton 1996). Even when women are able to achieve this sense of authority, they are still more likely to be interrupted during court, discredited, and called upon in a less respectful manner (Bogoch 1999).
It is important to remember that while OJ Simpson was one of the most publicized cases yet, there are very limiting critiques of the case itself. In fact, most have to do with systematic racism and injustice in the justice system. Marcia Clark is, however, referred to most frequently under the frame of law publications that explore the disparity between men and women as professionals in the courtroom. In order to establish a gendered courtroom from the OJ Simpson trial based on transcripts and interviews by DA Marcia Clark, I will be using the method of the ideological criticism. Ideological criticism involves looking beyond surface level elements to determine beliefs, values, and assumptions that an artifact may suggest. The primary component involves beliefs that may produce possible alternative interpretations or beliefs. This revolves around the idea that ideologies produce different belief systems in a culture, where some may dominate over others creating hegemony (textbook). Currently, there are no specific resources that have criticized the OJ Simpson case under the ideological criticism. According to Sonia Foss, the primary goal of the ideological critic is to discover and make visible the dominant ideology or ideologies embedded in an artifact and the ideologies that are being muted in it (Foss, 2004). Traditionally, virtually any discursive or non-discursive artifact can be used under this criticism, but it is noted that the best artifacts are those surrounding pop culture. In sum, under the ideological criticism I will analyze elements in the OJ Simpson transcripts and interviews by DA Marcia Clark to establish that when a female law representative is involved in a significant criminal case, the courtroom is unfairly gendered.
First, we will take a look at the transcript from May 24, 1995 in the case of the People of California vs. Orenthal James Simpson. In summary, LAPD criminal technician Collin Yamauchi was called as a plaintiff’s witness to testify about the collection and analysis of the blood collected supposedly of the defendant, found at the site of the double murder. The defense remarkably pressed him for four days, making Yamauchi nervous and leaving the jury questioning if he had contaminated the blood sample from the crime scene. During this fiery discourse back and forth between the defense (Cochran, Shapiro) and Clark, moderated by Judge Ito, the defense takes a jab at Clark’s responses. Specifically the transcript reads that after Yamauchi was led by defense to say that it seems OJ has a solid alibi, Mr. Cochran attacks Marcia Clark’s abilities as a DA:
- COCHRAN:May we be heard?
THE COURT: Oh, sure.
- COCHRAN:We’re certainly not going to yell at your Honor and become hysterical. We would point out—
(People of the State of California v. Orenthal James Simpson, 1995)
In this instance that fueled the media for weeks, Cochran addresses Judge Ito with respect, while diminishing Marcia’s position as a lawyer down to her gendered emotion. This builds on a woman’s double bind constructed by society that says she must be a woman while being a professional. Jack & Jack (1994) agree that “studies of women lawyers have indicated that they face a double bind: on the one hand they are under pressure from their clients and the general judicial culture to adopt an aggressive, adversarial interactional style in the courtroom; on the other hand, if they do so, they incur disapprobation for behaving in a manner unbecoming a woman”. In this instance where Cochran brands Clark as “hysterical”, he continues to perpetuate this double bind that creates a gendered courtroom those disproproriately effects female lawyers.
In response, Clark tries to defend herself and her character in the courtroom, but is completely rejected by Judge Ito:
- CLARK:I object to that characterization, your Honor. That kind of personal attack is very improper and inappropriate. The Court knows that it’s simply advocacy. I’m not yelling at anyone, and for Mr. Cochran to make that kind of sexist remark, “Hysterical,” I take great umbrage at it and I think the Court should not countenance that kind of behavior.
THE COURT: I don’t.
(People of the State of California v. Orenthal James Simpson, 1995)
This point on simply advocacy is something that women are seen as not possessing in the courtroom, while their passion is seen as “hysterical”. As Kennedy (1993) has pointed out, “men performing with the same vigor are described as passionate advocates … caring is interpreted as partial; it is impartiality that is the male legal ideal. Whatever women do and say in the courtroom (as well as in other contexts) is interpreted in relation to their gender and in line with the stereotypic expectations associated with the behavior of the sexes”. The discourse of emotionality that needs to be controlled not only marginalizes the women in terms of their professional behavior; it is part of the reproduction and exercise of power in a patriarchal society (Lutz 1966; Pierce 1995). Where the public sphere is rationally defined by men, emotional women must be excluded or controlled. Again, the double standard exists in women’s performance expectation as a lawyer. Her need to defend herself and uphold authority is also very common for women in male dominated industries like law (Thornton 1993).
Aside from the actual discourse used in the trial, we can also see how Marcia Clark is a victim of a gendered courtroom through the focus on her appearance by the court. Before being able to present her case to the jury, Judge Ito advises the jury to “not be distracted by counsel’s clothes” (People of the State of California v. Orenthal James Simpson, 1995), in clear reference to a shorter skirt that Clark was wearing, yet still appropriate for a courtroom. Notes such as these, and the fact the Court felt the need to advise this to the jury (as if they had never seen a woman in a skirt before), works to taint a professional female lawyer’s credibility. For example, “a common finding of the recent reports on women in the legal profession is that while the competence of men lawyers and judges is taken for granted, women are not given the same measure of credit” (Kennedy 1993). In other words, it is clear by the mentioning of her appearance that ability to be a lawyer is somehow capped by her physical looks—the double bind that a woman cannot be both a smart lawyer, and an attractive woman, without being taken seriously.
Finally, the last element to examine in these court transcripts is the frequency in which Marcia Clark is interrupted by both the court and counsel throughout the trial. In just one day of court, I counted that Marcia Clark was interrupted by either Judge Ito or OJ’s defense tea, five times more than any other lawyer on the case. There are thousands of pages of transcripts testifying to this based on count alone, but no concrete evidence other than my counting to identity this trend for this specific case. But, there is research that backs up this observation that female lawyers are more likely to be interrupted than their male counterparts. According to Bogech (1999):
Women lawyers were interrupted more frequently than men, and judges interrupted even witnesses more frequently when it was a woman lawyer who conducted the examination; judges took over the examination most frequently when women prosecutors were examining; judges, especially men judges, were likely to issue directives to women lawyers, and both men and women judges were more likely to aggravate their directives to women lawyers, showing less concern for matters of face.
Based on this, we can see that there is evidence of this gendered trend. Because this case was so long, I was only able to verify these claims for the first 6 months of the OJ Simpson case via transcripts. During these months, Marcia Clark was indeed interrupted remarkably more so then any other party indicated in the court transcripts.
The elements summarized include the defense and court’s definition of female assertiveness on the counsel as female hysteria and rejection to consider their classification as sexist, their inability to see Marcia Clark without regards to her looks, and the frequency of their willingness to interrupt Marcia Clark while conducting her job as a District Attorney of LA. Together, these elements create an ideology inside the OJ Simpson courtroom that is gendered and bias towards women in a professional manner.
In reflection of the OJ Simpson case, the presence of a strong District Attorney on the counsel, named Marcia Clark, created a courtroom full of already set biases based on gender. The ideology of a gendered courtroom has mostly been explored in terms of the treatment of female victims, defendants, and witnesses. But, with the help of rhetorical criticism research on the law profession, coupled with the rich transcripts from the OJ Simpson criminal case, we can extend this ideology to behind the counsel’s desk. Circling back to my research question: what can Marcia Clark’s criticism and treatment as a District Attorney by the defense and Court in the OJ Simpson trial tell us about bias in the courtroom? The answer to this contributes to society, breaking down many one-sided views of the case of OJ Simpson, especially since the FX series. The court case is commonly referred to as one based on race. But, when we examine the defense and Court’s willingness to diminish Marcia Clark’s character in court through gender related criticism, we can see that the OJ Simpson case was a case built on many different issues but it just depends which desk you are looking behind to identify those.
Bogoch, B. (1999). Courtroom Discourse and the Gendered Construction of Professional Identity. Law And Social Inquiry, 24329.
Foss, S. K. (1989). Rhetorical criticism: Exploration & practice. Prospect Heights, IL: Waveland Press.
Kennedy, H. (1992). Eve was framed: Women and British justice. London: Chatto & Windus.
Jack, D., and Rand Jack. (1994) Women lawyers: Archetypes and alternatives. Mapping the Moral Domain: A Contribution to Women’s Thinking, to Psychological theory, and Education. Cambridge, Mass.: Harvard University Graduate School of Education.
Levi, J. N., & Walker, A. G. (1990). Language in the judicial process. New York: Plenum Press.
Lutz, C. (1996). Engendered emotion: gender, power, and the rhetoric of emotional control in american discourse. In R. Harré & W. G. Parrott (Eds.), The emotions: Social, cultural and biological dimensions. London: SAGE Publications Ltd.
People of the State of California v. Orenthal James Simpson (Los Angeles County Superior Court April, 1995) (Walraven, Dist. file).
Thornton, Margaret. (1996). Dissonance and Distrust: Women in the Legal Profession. Oxford: Oxford University Press.
LINK TO TRANSCRIPTS: http://simpson.walraven.org/#lists