Simpson should forget jury, be tried by a judge


Now that O.J. Simpson has his own hot line, I thought about phoning in a suggestion for assuring him a fair trial.

That's a major concern -- finding an impartial jury that hasn't been swayed by the incredible media barrage, the many leaks, phony stories and constant TV jabber.

There is also talk about the possibility that some true believers in American free enterprise might be tempted to lie about their views in order to get on a jury and sell their stories to the supermarket tabloids.

And there is fear that some jurors might ignore the evidence and vote according to their racial persuasion, football passions, or secret belief that a wife should be faithful, obedient and beaten regularly.

The obvious solution to this problem is a change of venue, which means moving the trial from Los Angeles to another part of the state, where the jurors might be more open-minded or empty-headed.

But the Simpson case has been so heavily publicized that nowhere in California or the entire United States could you be sure of finding 12 people who have not been influenced to some degree.

So that raises the possibility of moving the trial out of this country to a civilized foreign country where nobody has seen CNN or heard of Simpson, and 12 totally fair people can be found.

That isn't easy, but there is such a place. It is a peaceful little country, isolated in a distant mountain valley. Unfortunately, I can't name it because its U.N. representative told me: "If you quote me by name, the president of my country will have my head chopped off. He's a shy kind of guy."

But could O.J. get a fair trial in your country?

"Sure. We don't have TV or radio, but everybody goes to school and studies the great Eastern and Western philosophers and Shakespeare and we all speak at least a dozen languages in case a tourist ever shows up. We have no racial prejudice because every newborn child is tattooed with stripes that are yellow, red, black and white. That way, they don't have to goof around painting themselves in preschool."

This sounded perfect. However, I checked with some legal authorities and they said there is no precedent for moving a trial to another country.

"Even if it was legal," one authority said, "the networks have the final say and they would veto the idea if it was a country where their anchors could not get first-class room service."

"Too bad," the tiny country's representative said. "It would have broken the monotony and put us on the map."

Then the most obvious solution came to me. And I wondered dTC why Simpson's lawyers hadn't thought of it first.

A bench trial. Which means there is no jury. A judge hears all the testimony and evidence and he alone would decide on Simpson's guilt or innocence.

With a judge, you have someone who knows the law. He knows what evidence is or is not admissible. Trained in the law, he would probably be more resistant to racial or emotional pleas.

It would also cost the taxpayers less money, since the judge has to be there anyway, but a dozen jurors wouldn't have to be paid $20 a day each, or whatever sum they toss around in California.

And it is legally permissible. All Simpson's lawyers have to do is waive a jury and ask for a bench trial.

I was about to dial Simpson's hot line and suggest a bench trial when it occurred to me that I should get the views of a few legal experts.

A call to Dan Polsby, a criminal law professor at Northwestern University, brought this response:

"You want to know why, if he's convinced that he won't get a fair trial, why the hell not ask for a bench trial?

"I'll tell you why. If he ever got a bench trial on the current evidence, they would have to send him to the death chamber.

"They don't want a bench trial because they don't want a fair trial. A bench trial is only good if you're not guilty."

And that, with a few variations, was the reaction of most legal experts. You ask for a jury trial only if the evidence is really nasty. With 12 ordinary people judging you, there is always the chance that one of them might like the twinkle in your eye or the way your jaw muscles ripple, and will hold out for acquittal regardless of how damning the evidence is.

All it takes is one holdout and you have a draw. Then the prosecution must drag all the witnesses back and do the whole thing over again.

But a judge is more likely to ignore media reports, rightly believing that most media creatures are boobs. And while he might believe in his heart that a guy is guilty, if the evidence isn't there he must abide by it.

In other words, you have a better chance for a fair trial with one middle-aged guy in black robes who was trained in the law, than with 12 strangers who might all be a bit daft.

So I didn't call Simpson's hot line. Not that it mattered. I'm told it was overloaded and crashed because of the great volume of calls from ardent fans. There's your jury.

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