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Polluting the Jury Pool


I felt very upset when O.J. Simpson became a suspect: I hoped the evidence would clear him. Now I'm upset at what may be his attorneys' strategy to keep him from being convicted.

I do not claim to know if Mr. Simpson is guilty, though the evidence presented publicly so far seems pretty grim. And I don't know if the police did anything improper to make their case against him, although the accusations about this seem so far pretty flimsy. Nor am I privy to the thinking of Mr. Simpson's defense team, but I have a suspicion.

I was struck by how the defense attack on the credibility and integrity of the police came immediately after the publication of poll data about the case suggesting a gulf between the races big enough to drive a wedge into. This "coincidence" suggests to me a strategy which raises serious questions of legal ethics.

According to my suspicion -- and that's all it is -- Mr. Simpson's lawyers read the poll data and thought something like this:

"All we have to do to succeed is have one juror who refuses to vote to convict. The evidence against our client is very strong, butthese poll data suggest an opportunity.

"Blacks, the polls show, have serious doubts that our man can get a fair shake from the police or from the court. They are apparently predisposed to believe that a black man -- even one as rich and widely admired as O.J. Simpson -- is liable to be railroaded, or even framed, by the justice system.

"So let us feed that suspicion. It should be enough for us simply to make the accusation -- we can make up semi-plausible scenarios as we go along -- that the evidence against our client has been fabricated, and in some people's minds no evidence the prosecution presents will be able to persuade them of his guilt.

"In a case like this, it will not be difficult to make sure the jury is racially mixed, and if, thanks to our feeding this distrust, a large proportion of blacks believe the police have framed O.J., we should get our hung jury."

My question is not, did it happen this way? Maybe it did and maybe it didn't. The question I'd like to address, rather, is: If it did, what should be said about the legal ethics that would be involved?

Some say an attorney's obligation is to serve the interests of his client to the best of his ability. But what about responsibility to society? The interests of society in convicting the guilty, we might say in most cases, are for the prosecution to represent. But with tactics such as those I have conjectured here, there arises a different problem of social responsibility that the defense should not be able so easily to shirk.

The distrust of the justice system by African-Americans -- both when justified and when not -- is part of our deep national wound around the problem of race relations. For Los Angeles in particular -- in the wake of the Rodney King beating and trials and the riots -- the wound is painfully fresh.

Now O.J. Simpson's defense team is pouring into its prospective jury pool more of the corrosive chemistry of this distrust. Whether their client is innocent or guilty, this tactic of the attorneys may well serve their client's interests. But in my view -- unless his allegations had the strongest foundation in fact -- no ethical attorney would exacerbate our country's racial wound in this way.

To attempt purely manipulatively to nourish distrust across a whole national community in order to get one jury to free one client would be the height of irresponsibility, a kind of slash-and-burn approach to our social ecology. I hope this isn't what they are doing, and if it is, I hope it will be condemned by the legal profession.

Andrew Bard Schmookler's next book will be "Fault Lines: a Trek Across the Distressed Moral Landscape of America Today."

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