A nation became a jury

THE BALTIMORE SUN

For the first time in history, an entire nation served as unofficial jury in a murder trial.

Looking in on the proceedings on television as often as real life allowed, citizens reached conclusions about the guilt or innocence of O. J. Simpson without having heard all the evidence.

Even the most addicted courtroom voyeurs could hardly see as much as the jury saw. And none shared the responsibility of those who endured every minute of the nine-month trial.

The jury-at-large had the luxury of relying on passions, preconceptions, conspiracy theories -- anything.

Every few days, a statistically valid sample was asked by pollsters to render a verdict. Without considering the perils of poll-taking, those surveys were a preposterous exercise: "Facts aside, Mr. and Mrs. America, did he do it?"

Then came the horror of the answers, surprising to some: Whites, preponderantly, said yes, guilty. Blacks, in similar proportions, said no, not guilty. Though widely seen as judgments based on race, some commentators have frequently pointed out that the split probably had more to do with life experience than with race.

Had we been asked during the trial to say if the Los Angeles Police Department lied, the black-white split might have been roughly the same until the latter stages of the trial, when two homicide investigators became entangled in a web of untruths and prevarications.

Thus did the Simpson trial become a giant fun-house mirror held up to the soul of America. Were we willing to decide the guilt or innocence of a man accused of double murder exclusively along racial lines? So said the jury of millions, according to the simplistic polls.

Probing questions coming after the bottom line, poll-takers adduced something like the following from blacks, according to one expert: Well, he may or may not be guilty, but the one thing I'm certain of is that the Los Angeles Police Department is guilty.

When the real jury's verdict was delivered last week, instant analysis suggested that race had been a dominant motivator -- not the facts of the case, but the race of the official jury's members. Three of the 12 were not African-American, but never mind.

Jeffrey Abramson, a Brandeis University professor, had argued earlier that the jury would behave responsibly.

"Although racial appeals to jurors are occasionally effective," he wrote, "every serious study shows that racial bloc voting is rare and that the prime determinant of verdicts is the strength of the evidence, not preconceptions rooted in race."

Shortly after the verdict, though, he had a different conclusion: .. "There can be little doubt that race emerged as the primary magnet in this case. It took the jurors and just moved them way away from slow and cautious consideration of the evidence.

"This was a case with unbelievable mounds of evidence. Those mounds had difficulties, but they couldn't have been discussed in three hours. It had to be a jury nauseated by the behavior of the L.A. police."

The speed of the verdict, he said, may have been part of a "message." The jurors acted "with lightning speed to reject the prosecution and to say how little respect they had for the case. It's a classic case where racial reality just can't be shut out of the courtroom."

Nor should it be, argues Paul Butler, a professor at the George Washington University Law School, an African-American and a former prosecutor in the District of Columbia.

"The law doesn't always lead to a just result," he said. "The reason we have juries instead of a computer is for juries to apply common sense." Sometimes, he argues in an article prepared for the Yale Law Journal, it is appropriate in cases involving nonviolent crimes for black juries to free defendants they believe are guilty.

Defense of nullification

Mr. Butler encourages blacks to engage in what is called "jury nullification" -- a message of outrage and controlled rebellion to what he called "a racist" criminal justice system. In its current form, he said, "racism seeps through" and should be challenged. Sentences for cocaine use are a prime example of the bias, he said: Penalties for use of crack cocaine, a "black" form of the drug, are tougher than for use of cocaine in powder or "white" form. As a result, he said, large numbers of young black men find themselves in jail, on probation or on parole: one in three, according to a study released last week by the Sentencing Project, a Washington-based organization advocating alternatives to prison.

While monthly figures show that blacks make up 13 percent of the nation's drug users, they constitute 35 percent of drug possession arrests, 55 percent of convictions and 74 percent of prison sentences, U.S. Department of Justice and Census Bureau figures show.

Those who would reject a call for acts of nullification, Mr. Butler said, should know one thing: "Black juries are already doing it." Prosecutors in District of Columbia courts have observed it, he said -- and the Joel Lee robbery-murder case in Baltimore led to a similar outcome. In that case, a majority-black jury rejected the testimony of four eyewitnesses and acquitted Mr. Lee's alleged killer, a black man.

Mr. Butler's own study reported in the Yale Law Journal article confirmed what his colleagues suspected.

"They are willing to use a vote in a political way. They might as well follow my program. If it's done willy-nilly, it leads to some nullifications that aren't a good idea. What I hope I'm doing is providing an effective way of channeling the anger," he said.

Speaking before the Simpson jurors began to explain their thinking, Mr. Butler said he did not think the jury's agenda was, strictly speaking, nullification. The different experiences of blacks and whites, though, may have had some impact.

"Reasonable doubt can be racially based," he said. He agreed with Mr. Abramson's first conclusion about black juries: "Usually blacks don't nullify in violent crime," Mr. Butler said. For one thing, blacks are often victims of violent crime, so they would be anxious to punish offenders and protect the community.

Different definitions

As for "reasonable" doubts, he said, blacks and whites would almost certainly have different definitions.

"What's reasonable to a black juror may not be reasonable to a white. Whites don't believe what blacks say about cops. They didn't believe until they heard it from Mark Fuhrman [the retired Los Angeles police detective who lied about using a racial epithet and prattled about planting evidence]. Black people don't have to be shown. It's their experience."

A 34-year-old native of Chicago who went to Yale University and later to Harvard Law School, Mr. Butler offers his own first encounter with the police.

"I was 10 years old, riding my bike in an all-white neighborhood. A cop car pulled up, and the guy says, 'Is that your bike?'

"I said, 'Yeah, is that your car?' and then I sped away. I told my mother what I had done, and she gave me a spanking. She said 'Don't you know what happens to black kids who mouth off to police?' "

More of us in the National Jury know now -- after the Rodney King and Simpson cases -- if we didn't before.

The knowledge may serve to highlight complaints with the system, complaints that are now virtually unaddressed in a political climate dominated by calls for three strikes and out, abolishing parole and strict enforcement of life-in-prison sentences.

If juries are to subordinate their basic responsibility to political concerns, though, the implications for the system are alarming to some of Mr. Butler's colleagues, including Mr. Abramson.

"I think it's a crisis point," he said. "The reaction across the board will be [that] justice depends on the skin color of jurors. Maybe we're learning the hard way what's been going on."

Another student of juries, Nancy J. King of Vanderbilt University Law School, says the Simpson case may help to focus the authorities on problems in society they had avoided or simply missed.

"Perhaps there is a new broader definition of what the merits of a case consist of," she said. "If that's happening, we have to look long and hard at why and not have knee-jerk reactions to it."

:. C. Fraser Smith is a reporter for The Sun.

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