Questionable Judgment

By Richard Lacayo

Let's grant that the trial of O.J. Simpson is a case unto itself. What with the consuming attention of the media, the camera-ready lawyering, the surrounding atmosphere -- alternately tragic and coarse, that seems like something from Dostoyevsky read aloud by Jackie Collins -- there's nothing typical about it. This would extend to the jury selection that begins this week. In a nation where jury duty is considered second only to a tax audit among the devices of government-inflicted pain, there are people who are struggling to sit in judgment on this one. Responses to jury call notices in the Los Angeles area have risen by 8% since the Simpson case erupted. One city council member reports being cornered at the gym by would-be jurors. From as far away as Minnesota and Florida, people eager -- avid! -- to do their official duty have been phoning the offices of Judge Lance Ito and District Attorney Gil Garcetti. That out-of-staters are ineligible is no barrier to their civic-mindedness.

And who can blame them? Not many juries promise a continuing spot on daytime television, to say nothing of the prospect of big money for anyone willing to sell an inside account of the verdict deliberations. But even if the Simpson trial is in a class by itself, it still promises to exemplify problems that infect the American jury system as a whole. Those include the likely attempt by lawyers to skew the panel along racial and gender lines, plus a surfeit of dense testimony, in this case about the scientific validity of DNA evidence, in a trial that threatens to go on for so long that jurors will be hard- pressed to remember at the end what they heard at the beginning.

Just in time to put the Simpson trial in perspective, a full, gloomy diagnosis of the larger problem has arrived in a new book, The Jury by Stephen J. Adler, legal editor of the Wall Street Journal (Times Books; $25). Adler describes the several juries he examined from selection through trial proceedings to the deliberations that bumptiously rendered a verdict: "There were lots of sincere, serious people who -- for a variety of reasons -- were missing key points, focusing on irrelevant issues, succumbing to barely recognized prejudices, failing to see through the cheapest appeals to sympathy or hate, and generally botching the job."

All that from a man who supports the institution of juries, which are, after all, a group of ordinary citizens who sacrifice their time, comfort and sometimes income. It's not the jurors who are the problem, says Adler, but the ordeal they are subjected to. First, the most competent citizens are permitted to escape the jury pool. The pool is whittled down further by peremptory challenges, which allow lawyers to strike a potential juror from the panel without giving reasons. The lawyers have reasons, of course, often based on stereotypes of race, gender, age or income that lead them to believe a particular candidate will disfavor their client. Then the trial begins, when jurors face complicated testimony and evidence that judges and lawyers do little to help them understand.

Thomas Jefferson considered juries more important than free elections as bulwarks of democracy. What Adler fears is a jury system that limps along, its prestige in decline and its powers clipped. "Appeals courts are already more freely overturning verdicts as they come to respect juries less," he recently told TIME. "They once would have been much more respectful of the jury's fact-finding." Some corporate groups want to make it official, urging appelate courts to deny the right to jury trial in commercial cases that they think are too complex for ordinary citizens. States are pushing through new laws that put caps on the amount jurors may award to injured individuals.

Much of the maneuvering in last week's evidentiary hearings for the Simpson case was peculiar strictly to a highly publicized trial. Arguments on both sides were aimed as much at the potential jury pool, meaning everyone in the city who follows news of the case -- meaning everyone -- as they were at Judge Ito. In an attempt to disallow evidence seized during searches of O.J.'s residence, defense lawyers claimed they went further than the warrants permitted.

Though Ito admitted the evidence, including blood in the foyer and bathroom of Simpson's house, he gave the defense team a consolation prize by lambasting Philip Vannatter, the lead Los Angeles police detective in the case, for being "reckless" in drafting the search warrant. That gave well-publicized ammunition to the defense argument that Simpson is the victim of bumbling investigators. Later Ito went after the media for an "erroneous" local TV news report that DNA testing had identified Nicole Simpson's blood on socks found at O.J.'s home. At a time when much of the news for the defense side had been unfavorable, Ito's implicit message for potential jurors was, "Don't believe everything you read."

The serious manuevering begins this week with the selection process. Given that the trial may drag on for months, and that the jury may be sequestered, Ito will excuse a great many of the 1,000 potential jurors who can present plausible arguments of hardship. The rest he will interview one at a time, with the lawyers chiming in only when he allows them to. The questions derive from suggestions submitted by the defense and prosecution. The answers will help both sides determine which jurors they most want to be rid of.

At this point the most important people in the courtroom will be the jury consultants, who are either an essential resource of the fully equipped attorney or a kind of quasi-scientific jury tampering -- or worse, both. To clients able to pay as much as $100,000, these experts offer charts, focus groups, surveys and psychological profiles that try to predict how potential jurors will vote. The chief indicators are everything from race, income and gender to personal history and what kind of car they drive.

"Who are the jurors who will find it difficult to set aside the prejudices they know they hold? Who are the people who are unaware they hold prejudices?" asks Donald Vinson, a former marketing professor at the University of Southern California who heads DecisionQuest, a consultancy hired by the prosecution. "Those are the people we want to eliminate." Simpson's lawyers have brought in Trial Logistics, headed by Jo-Ellan Dimitrius, who advised the defense in the Rodney King and Reginald Denny beating trials.

Vinson maintains that race alone is an overrated factor in determining which potential jurors will be most sympathetic to Simpson. "We are not going to base decisions on demographics," he insists. "We are much more interested in their worldviews." The defense side may not be so convinced. Some trial observers are wondering if the increased prominence last week of Johnnie Cochran, the only black member of Simpson's A-team, is a confirmation of reports that the defense hopes to appeal to the racial sympathies of black jurors. Studies show that blacks and whites are both more lenient toward defendants of their own race. African-American jurors may also be more likely to be skeptical of testimony by law-enforcement officers. Women, meanwhile, might be presumed to be more favorable to the prosecution in a case involving a female victim.

But jury selection by race or gender is a tricky game. In the William Kennedy Smith rape trial, defense attorney Roy Black was astonished by jury ^ research showing that conservative women over 40 were the people most likely to acquit his client. "They were most skeptical of claims made by younger women who would go out all night in bars," he says.

In his book, Adler treats jury consultants as a regrettable development, in part because they give further advantage to wealthy clients who already hire the best lawyers. To undercut their influence, he urges the complete elimination of peremptory challenges. The Supreme Court has already disallowed them when used solely for reasons of race or gender. It may eventually abolish them altogether. If not, says Adler, Congress and state legislatures should.

To create a larger pool of qualified jurors, Adler also argues that legislatures should eliminate most automatic exemptions for such professions as doctors and clergy, which allow some of the best educated members of the community to escape service. The disadvantages of a narrow jury pool that has been worked upon by lawyers determined to seat the least qualified members is evident from Adler's account of the trial of Imelda Marcos, the wife of deposed Philippine dictator Ferdinand Marcos. In 1990 she faced charges in a New York City court of transferring Philippine government money to American banks to finance shopping sprees in the U.S. that bought hundreds of millions of dollars in real estate and jewelry for herself and her husband. By the time the lawyers were done, anyone who followed the news closely enough to have knowledge of Imelda's role in her husband's dictatorship had been struck from the panel. One juror was unsure whether Imelda was a man or a woman.

It was a jury ill-equipped to make its way through the complicated financial transactions the case hinged upon. "The net effect on many jurors was panic at their inability to follow the money," writes Adler, who later interviewed the jurors. Unable to sift the complex evidence, they fell back on sheer sympathy for Imelda, who courted it with gusto. Dressed in black, clutching her rosaries, she could be seen at the defense table wiping back tears. Acquitted, Imelda threw a thank-you party for the jurors with roast pig and a belly dancer. She sang Feelings.

To help jurors understand their work, Adler suggests changing rules that bar them from taking a more active part in trial proceedings. For instance, while no law forbids them to take notes, most judges disallow it. Adler would also permit jurors to ask questions, perhaps by submitting them in writing through the judge, who could decide which ones to address to witnesses. Judges should also issue jury instructions at the start of trial, he says, not the end, so jurors will know what to watch for. And he urges simpler instructions, so jurors aren't confounded by legalese.

The pileup of confusions that those reforms might clear away is obvious from Adler's description of the 1989 lawsuit that Liggett & Myers, the giant tobacco company, brought against Brown & Williamson, a rival that Liggett accused of unfair competition. After an eight-month trial that hinged on notions like "predatory price discrimination" and "price-value submarkets," jurors had to rely on memory alone to recall testimony that filled 108 volumes. The judge's 81-page instructions gave them such helpful hints as this one: "You may wish to reject an inference of predatory intent if you find that a substantial motivation of Brown & Williamson's entry into black and white cigarettes was LIFO decrement avoidance tax benefits." No surprise -- the stymied jurors fell back on guesswork before awarding Liggett $49.6 million.

When the verdict was overturned three years later, the Supreme Court ruled that no "reasonable jury" could have concluded that B&W's actions were illegal. Under the rules in place, no reasonable jury could have been chosen. And even a reasonable jury could barely have operated. Does anyone suppose that this is what Jefferson had in mind?

With reporting by Jordan Bonfante and Elaine Lafferty/Los Angeles, Wendy Cole/Chicago and Andrea Sachs/New York