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Cruel and Unusual Punishment


Washington. -- There will be lots of recriminations, racial theories and general outbursts of exasperation with our jury system when the O.J. Simpson jury fails to convict or exonerate O.J. Simpson in the murders of his former wife, Nicole, and her friend Ron Goldman.

I say "when" because this most celebrated of court cases will surely end in a mistrial by reason of jury depletion.

And even if by some miracle of human endurance it goes to jury deliberation, I am convinced that there will be a hung jury.

The failure to convict in the current American atmosphere of racial polarization will provoke cries of "jury nullification," suggesting that black jurors disregarded the evidence in order to free a black defendant. The concept of "reasonable doubt" will be argued. The dismissal of the many jurors during the trial will be cited as other reasons to deplore the jury system.

Some pundits are already attacking this jury as a bunch of racist brawlers, crybabies and would-be profiteers.

The critics ought first ask whether they, or any sane friends or neighbors they know, would want to serve on this isolated jury for six months or more. The duty of citizenship is stretched beyond reasonable bounds when jurors on such an emotional trial are sequestered -- yes, locked up and watched like criminals -- for so long a period.

This trial would be painful enough for jurors who got to go home every night and could check on their jobs and families on weekends. But the sequestration of the Simpson jury falls within the constitutional prohibition against cruel and unusual punishment.

I know the argument that a fair trial, for either Mr. Simpson or the prosecution, would be impossible if the jury were exposed to all the stuff we have seen on TV and in the tabloids, or heard on talk radio in recent months.

Still, I'll wager that, even though sequestered, every member of this jury has heard about the charges, rumors and innuendoes that might sway their verdicts.

First of all, most of the allegations and rumors, however prejudicial, have wound up in open court in one way or another, whether they involved marital indiscretions, spousal violence, drug use, police misconduct or whatever. Second, these jurors have been isolated from normal life for so long that the judge has seen fit to allow conjugal visits.

There is just no way, short of bugging all beds and hotel rooms, that couples can be prevented from talking intimately about the most interesting, sensational or salacious aspects of the Simpson trial and the media scuttlebutt.

Experts on the judicial system ought to decide, even in hindsight, that the problems created by almost interminable sequestration are infinitely worse than gambling that honest, intelligent jurors will still make judgments based on the court evidence, though exposed regularly to friends and media reports.

Every time a juror has been dismissed, the media have rushed to ask questions implying that a race war is taking place among the jurors. A black juror disagrees with a white one over which movie to watch and that gets played as a rebirth of the Civil War. Hell, members of families sitting in the comfort of home disagree regularly over what to watch on TV!

We have simply asked too much of these jurors from the start, then abused them throughout the snail's-pace process.

We will have to find a better way for future long, emotional trials. A decision not to sequester could be part of that better way.

Carl T. Rowan is a syndicated columnist.

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