Judge Lance Ito and O.J. Simpson lawyers had a "sidebar" last week about a juror who they thought might not be paying attention. Another juror is said to want to be excused because of an ailing spouse. Another juror was dismissed because he was thought to be writing a book about it all. Another juror was dismissed, complaining about sheriff's deputies. Then most of the other jurors protested in public a change in deputies. Another says she can't take it anymore and wants out.
On it goes, and who could be surprised? Jurors are being treated like second-class citizens in this celebrated case. Much of the time that they are sequestered while court is not in session, court could be in session. It's bankers' hours -- for everyone concerned except the jurors, whose "off" time is hardly their own. Nearly half the time court is in session, jurors are taken out for those endless sidebars and other inconsiderate time wasting.
No wonder the jurors may seem to be acting bizarrely. Jury service in high-profile, high-stakes cases like this one (there's never been one like this one, actually), especially when they are long-lasting and the jurors are sequestered, "often triggers a range of stress-related problems," Stephen J. Adler noted in his 1994 study, "The Jury." Judge Ito and Los Angeles County owe these jurors better than this.
When racial tension among jurors is also part of the equation, as it appears to be, the problem is compounded. Judge Ito and L.A. knew this was possible and should have taken every possible step to prevent it before the trial began. In this case, as in any case, a racially mixed jury was important. Juries are supposed to be representative of a community. Citizens should be assured that judgments are not based on racial bias. This is so important that the Supreme Court has ruled in recent years that neither prosecutors nor criminal defense attorneys nor even lawyers in civil cases may purposely exclude jurors on the basis of race.
It is not just court housekeeping that fell down in the Simpson case. F. Lee Bailey cross-examined Detective Mark Fuhrman last month not in an effort to undermine his testimony regarding evidence but to appeal to black jurors on the basis of his alleged racism. Even Simpson lawyer Robert Shapiro complained of Mr. Bailey's tactics: "My preference was that race was not an issue in this case and should not be an issue in the case, and I'm sorry from my own personal point of view that it has become an issue in this case."
America is watching this spectacle. Much of the audience is no doubt interested only in the soap opera aspects, but everyone who is watching is getting a lesson in how not to search for justice and how not to treat good citizens who accept an unpleasant and onerous duty. Surely when it is all over this increased public awareness of how courts work will lead to pressure for reforms.