E. Fletcher McClellan

OP-ED COLUMNIST E. Fletcher McClellan, Ph.D., is a professor of political science at Elizabethtown College.

For many of us, the O.J. Simpson trial in 1994-1995 was the first time we heard the term “jury nullification.”

Jury nullification occurs when a jury returns a verdict of not guilty, even though jurors believe beyond reasonable doubt that the defendant has broken the law. The reasons for a jury issuing a “perverse verdict” may be a belief that the law is unjust or wrongly applied, or that jurors are prejudiced in favor of the defendant.

The majority-Black, majority-female jury that acquitted Simpson of murdering his ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman, was widely criticized for ignoring Simpson’s history of spousal abuse and the blood, DNA and fiber evidence that linked the NFL Hall of Famer and former Heisman Trophy winner to the crimes.

Among the speculated reasons for the jury’s verdict were hero worship, the work of an all-star team of defense attorneys and mistakes by the prosecution.

According to the Oscar-winning ESPN documentary “O.J.: Made in America,” the most important factor was Simpson’s race.

For decades, the African-American community of Los Angeles was subjected to police harassment and violence. The Simpson defense team was seemingly successful in convincing enough jurors that Simpson was a Black man who was framed by the Los Angeles Police Department.

According to this analysis, the Simpson jury intended to make a statement about systemic racism in law enforcement. Support for the verdict from African-Americans around the country indicated that the message was received.

On the other hand, many white Americans ridiculed the jury for performing a miscarriage of justice.

A quarter-century later, we are likely about to see history repeated in Washington, D.C.

In the present case, former President Donald Trump is accused of inciting the attack on the U.S. Capitol on Jan. 6, when Congress met to officially accept the states’ certified Electoral College votes. The jury consists of the 100 members of the U.S. Senate and the prosecutors are members of the U.S. House of Representatives.

The House managers have presented a coherent narrative — based on Trump’s own words, video evidence and eyewitness accounts — that Trump was determined to overturn the result of the election won by Democratic opponent Joe Biden, by an Electoral College tally of 306 to 232.

For months before the election, Trump declared that fraud was the only reason why he could lose. After Election Day on Nov. 3, he asserted that he won a “landslide” victory.

When long-shot lawsuits and attempted intimidation of election officials failed to reverse or invalidate election returns in states where Biden won somewhat narrowly, such as Pennsylvania, Trump turned to inciting violence.

He urged supporters to attend the Jan. 6 rally near the White House, where it “will be wild!”

At the rally, Trump called upon supporters to march to the U.S. Capitol building. He planted the erroneous idea that then-Vice President Mike Pence, who presided over Congress’ acceptance of the election results, had the power to unilaterally reject results from battleground states won by Biden.

The video evidence shows that Trump supporters invaded the Capitol with the intention of disrupting Congress and seizing or harming Pence and House Speaker Nancy Pelosi.

While the insurrection took place, Trump watched it on television and did not immediately discourage the rioters or provide reinforcements to the beleaguered Capitol Police. Trump advisers and supporters, as well as law enforcement officials, pleaded with the president to do something to put down the attack.

It took hours for the president to tell the attackers to go home, but not without reiterating his claims of fraud.

For hours after Trump’s statement, rioters and police continued to fight. In all, the assault led to about 140 Capitol Police officers being injured and five deaths.

Preliminary votes before Trump’s Senate impeachment trial indicated that the House prosecutors lacked the 67 votes — or two-thirds of the Senate — needed to convict the former president.

After opening statements by the impeachment managers and Trump’s attorneys, all 50 Democrats and six Republicans voted that it was constitutional to begin the trial. Forty-four Republicans wanted to end proceedings without hearing any evidence.

Most of the 44 argued the proceedings were unconstitutional because of their assertion that only a sitting president can be tried. However, over 140 constitutional scholars, including prominent conservatives, argued there was ample precedent for trying federal officials after they left office.

Despite the dramatic video evidence offered by the House managers, few minds have seemingly changed. Sen. Rand Paul, R-Ky., pronounced the case “dead on arrival,” while Sen. Lindsey Graham, R-S.C., opined that the House presentation was "offensive and absurd."

The refusal of most Republicans to consider Trump’s guilt appears to be a textbook case of jury nullification, as it occurred in the Simpson trial.

Actually, it’s worse.

Trump does not have a Johnnie Cochran to represent him, nor a prosecution that put a racist cop on the stand or introduced a glove that did not fit the defendant.

Whereas the context of the Simpson trial was institutionalized racism, the motives of the 44 Republicans range from their own presidential ambitions to fear of Trump to tribal partisanship.

Furthermore, many in the GOP were complicit in Trump’s Big Lie by refusing to denounce his false claims of election fraud.

Others, such as Sens. Ted Cruz, R-Texas, and Josh Hawley, R-Mo., aided the rioters directly or indirectly by prolonging Congress’ acceptance of the states’ certified election results on Jan. 6.

If the expected Senate verdict is returned, the O.J. Simpson jury is owed an apology.

E. Fletcher McClellan is a professor of political science at Elizabethtown College. Twitter: @mcclelef.

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