With each juror removed from the OJ panel, America's faith in the system takes a hit A Jury of Our Fears

THE BALTIMORE SUN

I don't want to seem alarmist here. But, if you haven't been watching the O.J. trial much these days, you may have missed the fact that the jury system -- the last institution anybody in America believed in -- is in the process of blowing up.

(Actually, if you're anything like the typical O.J. juror, you could have been watching, and you still might have missed the fact. Or else you might have blamed it on rogue cop Mark Fuhrman.)

I know we did believe in the jury system, for about a couple of hundred years.

Once upon a time, in fact just before the Dancing Itos phenomenon, juries were the one institution we still held dear, the one we embraced as, well, ultimately American. It is, possibly, the purest form of democracy left to us.

What else is there to believe in? You know how we feel about government. Or any politicians. Or (ouch) the media. Or, certainly, lawyers. And baseball players, don't get me started. We don't even trust doctors anymore, although if I've got my AMA literature right, we do sue them whenever possible.

But juries. Ah, juries. They're different. Twelve men (now men and women) tried and true, as the saying goes.

We believed in juries because juries are us; we are juries, except when we can find an excuse not to serve, as in one case when a potential juror -- this is true -- wrote in to say he couldn't make it because he was "under a doctor's car."

There's mystical quality about juries. You've seen the movie. You bring together average, simple Amer icans -- uneducated, educated, doesn't matter; but good people because America is good and we're Americans -- into a room where, in the face of personal bias and often poor ventilation, fairness and justice always prevail.

And then came O.J.

And, suddenly, before our disbelieving eyes, the jury panel turns into a "Geraldo" panel.

Judge Ito -- remember when you liked Judge Ito? That's how long this trial has been going on -- tosses these guys like he's an umpire and the jurors are so many Earl Weavers kicking dirt on home plate. Ten jurors have been tossed; 14 to go. The trial is like an Apollo countdown, only with more delays.

Those jurors who were removed had variously lied to the judge, were allegedly working on books, were passing notes, were stepping on the feet of jurors of different colors, were staring at their colleagues in an attempt to intimidate, had worked for Hertz, had shared O.J.'s doctor, and had, in the case of one juror, simply broken down. "I can't take it anymore," flight attendant Tracy Hampton told the judge. Neither could Ito.

That's not the worst of it.

In the middle of the never-ending trial came the ritual of the post-bounce interview, in which the dismissed juror -- chased down by the bigfoot media -- gives us an up-to-date account, in play-by-play fashion, of life in the jury room. This has never happened before. And maybe we should be glad for that.

Here's the kind of thing we learned recently from one dismissed juror, one Willie Cravin, a postal manager with two years of college who was kicked off the panel for, well, staring: "[Simpson] was still innocent. Nobody had proven him guilty. There was nothing for him to sweat at this point."

Is he watching the same trial the rest of us -- come on, you too -- were watching. No case? Nothing to sweat?

When Yale Kamisar, a law professor at the University of Michigan, heard this report, and others like it, he was sweating plenty.

"They come before the TV cameras and say things like, 'As far as I'm concerned, the prosecution hasn't shown anything yet,' " Kamisar says. "It's like the boxer who's been knocked down three times and says the other guy hasn't laid a glove on him. Where have these people been? The statements are so baffling it makes you wonder if they had simply made up their minds before the proceedings began.

"This really shakes me up."

You want a bottom line? You want to be shaken up, too? According to the polls, a majority of us think Simpson is guilty. A similar percentage think Simpson will walk anyway. Few people have any faith this jury, in this trial, can deliver justice.

What's going on here?

Reflecting society

Well, what isn't going on here? You looked at society recently? That's what's going on here.

The reports from inside the O.J. jury tell tales of racial divide, tales of the impact of big media (even E! is televising the trial because if it happens in Hollywood it happens on E!), tales of get-rich-quick schemes. Everybody's got a book -- even Johnnie Cochran's ex-wife has published her memoirs. Yesterday a judge ruled that ex-juror Michael Knox's book -- "The Private Diaries of an O.J. Juror" -- could be published later this month.

It's the ultimate meeting of celebrity and commerce. This conjunction seems to be getting in the way of justice, which is, presumably, what trials are supposed to be about.

"There are a lot of unanswered questions about the O.J. case," says Joseph diGenova, a Washington lawyer and former federal prosecutor. "The key ones involve the jury system. The subplot involves the role of television in notorious cases.

"I don't think we can afford to televise these cases where the camera has, in fact, an effect on the judges, the juries, the witnesses, the lawyers . . . who would modify their behavior because of the coverage and in order to make a name for themselves."

He is critical of the judge, of all the lawyers and of the jurors.

"It's no wonder," he says, "that people, looking through the prism of this trial, are asking questions about the viability of the present system. I've been saying for a decade that there's a train wreck coming in televising these celebrity trials."

Of course, he's right. This is a train wreck. Certainly, people are getting hurt. Trials on television have become like sporting events, or maybe like a Roman circus featuring Christian and lions. In this case, the jurors get to play emperor. They give the thumbs-up or the thumbs-down, and everyone's watching. It's heady stuff.

In most cases, people will say anything to avoid jury duty. In Baltimore, as in many cities, they can barely find enough jurors to hold trials. In the Simpson trial, people lied to get on the jury, a whole new concept. Looking at a big post-trial payday, the simple, average, good American turns into an avaricious, mendacious lout. In other words, They become something like the host of one of your TV tabloid shows.

But our loss of faith in juries didn't begin with O.J. If you wonder what the O.J. jury is thinking, how about the first Rodney King jury? There was a video, remember. And yet, one all-white jury thought the cops' beating of King was just fine.

In the Reginald Denny case -- he was the truck driver beaten in the Rodney King riot -- there was also video. There was only one conviction, and on a relatively minor charge. These jurors were apparently worried about another riot. According to a postmortem from that jury room, one juror wrote on a blackboard: "compassion," "unity" and "future."

Amid the fallout from the O.J. case is the concern that black jurors won't convict black defendants. Of course, they often do, as the prison population attests. But that doesn't mean race won't play a role in the Simpson case. On the other hand, you don't have to be a history student to understand there's some irony here, given the ugly and enduring tradition of white juries in matters of race.

What is true is that today's juries often do not share a set of principles and experiences that made convictions so much easier in a simpler time, when jurors wore ties and were almost always white.

But race isn't the only dividing line. Let's the take the case of the Menendez brothers. When the boys came home, Mom and Dad Menendez are sitting in front of the TV set eating berries and cream. Mom is also filling out an application for UCLA for her younger son, Eric. This does not stop the brothers from emptying their shotguns into their parents' bodies. After blowing off Dad's skull, Lyle reloads and shoots dying Mom through the cheek. Then, to show their remorse, they go on a million-dollar spending spree.

Come their day in court, they admit their guilt, with both sons saying parental abuse made them do it. Both get hung juries, split along gender lines. Most of the men vote for Murder One. Most of the women vote for manslaughter.

Justice? When Lyle admitted he reloaded? Well, there will be a retrial.

In the beginning

The modern jury system began somewhere in medieval England. If you were accused of a crime, you had to find 12 neighbors -- 12 peers -- to vouch for your innocence. If you couldn't round up 12 -- a number apparently based either on the number of apostles or the movie "Dirty Dozen" -- you were basically hanging from the nearest oak tree faster than you could say habeas corpus.

Many jurors think they have it tough now. Low pay. Ugly waiting rooms. Too much sitting around. Unsafe parking lots. The inconvenience factor. Well, up until the late 17th century, jurors could be imprisoned and fined for turning in what the judge thought was a wrong verdict. That's even more pressure than an interview on "Hard Copy."

We've had jury trials in America from the beginning. The Sixth Amendment guarantees the right to a jury trial, also a speedy trial. There's no mention of Marcia Clark's hairstyle.

There's also no mention of DNA cases, of corporate opportunity, of the rule of perpetuities and other stuff that juries can barely hope to understand. Not to mention our own adversarial system of justice in which finding the truth is often less important than confusing the issues. Or maybe you think everyone in Los Angeles was involved in a conspiracy to get Simpson.

There was no apparent concern by the Founding Fathers, many of them lawyers, that rich people who could afford attorneys in Armani suits would not face the same kind of justice that a poor defendant with a court-appointed lawyer faces.

"Money is the defining element of our modern American criminal-justice system," writes John H. Langbein, a Yale law professor who is among those calling for jury reform. He argues that many European nations, who use juror-like lay judges in conjunction with real judges to determine guilt or innocence, have systems that are better able to get at the truth.

Adds attorney diGenova: "We all must understand that a trial is not a search for the truth. The old axiom is not correct. Trials are results in search of a vote. That's what they are. It's gamesmanship. . . . Lawyers, as they have in the O.J. case, try to get the jurors to believe unreasonable doubt is reasonable doubt."

Most poor defendants are convicted. Many rich ones -- Claus von Bulow, William Kennedy Smith, to name two -- are not.

Yes, there is a jury-reform movement. It even predates the O.J. trial. Some ideas include note-taking (many judges don't allow -- it), the ability of the jurors to submit questions of the judge (many don't allow that, either), to discuss the case during the trial, to prevent attorneys from excusing jurors except for very good cause, meaning the 12 you get are the 12 you get. The list goes on.

But a few words of caution. Maybe the system is broken. Maybe it isn't. Americans, more than Europeans, believe in the wisdom of the common man. The problem is, people are looking at the O.J. case and thinking they're seeing something that might be remotely typical. They're not.

Here are some other theories.

* It's just California: "What do all these strange cases have in common?" asks Andrew Radding, a Baltimore lawyer and law professor. "I don't think we should take to heart what happens in California."

"The word is out," says diGenova. "If you want to commit a big crime, go to California. This trial would have been conducted differently in all the other 49 states."

Commit a big crime, go to California? Sounds like a possible state travel slogan.

* It's just this one strange case: "This case gives the American justice system a bad name," says Jesse Choper, a professor at the University of California-Berkeley's law school. "It has been greatly overplayed by the lawyers on both sides, They have not, in my judgment, acted professionally. What we've seen is theater, histrionics. They make faces at one another. They insult one another. They challenge one another's motivations. They try the case in the press. I think it's embarrassing. Rightfully, it gives us all a bad name.

"But this is one case. Generally, though the system is highly imperfect, it struggles along and does a decent job.

* It isn't just the jurors' fault: So they seem a little weird, yes. But imagine yourself locked up with 20-odd strangers for month after maddening month. Imagine being bombarded by lawyers, tempted by agents, denied the freedom to just hop in your car and sit in freeway traffic. You get in arguments living with people you love. Some of these jurors don't seem that lovable. On the other hand, if the Mormon Tabernacle Choir were locked up together for sixth months, you might see some fistfights. In that context, it's harder to blame Jeanette Harris for appearing testy.

* Mostly, it's Judge Ito's fault: Once he was our kindly uncle. Now he is seen as the judge who let the trail get away from him. He hasn't reined in the lawyers. He's dismissed too many jurors. He's allowed testimony to go on for so long that any juror, no matter how focused, would lose concentration or just plain start napping.

The most dangerous thing, according to many of the experts, is that Ito has changed his style of courtroom management as a result of reading his notices. Because his critics thought he was too nice, he's become, as one lawyer put it, Genghis Kahn. Blame the TV cameras. Blame the media (I confess.) Blame the judge.

'Bad for the judicial system'

In summation (I always wanted to say that), no trial has been more closely watched than this one. And no trial could have provided a worse lesson in judicial proceedings. We may be cynical about our institutions. But no institution could be this messed up.

One prosecutor in the Simpson case, Christopher Darden, says he has been so embarrassed by this case that he's thinking of giving up the law. (He'll probably, however, write a book about giving up the law.)

"This case has been bad for the judicial system," professor Kamisar says. "It makes you almost defensive about being a lawyer. And when the jury comes out split, people are going to be mad as hell."

That is, of course, if the ever-shrinking jury makes it to the end of this case/war of attrition. The concept of a retrial is almost too big, too scary, to wrap your mind around.

One thing we can be sure of, though: There will be many more than 12 angry men (and women) out there, whatever the verdict.

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