THE LESSONS OF THE TRIAL

By JAMES WALSH

IF O.J. SIMPSON IS A FREE MAN TODAY, he leaves behind a machinery of law that looks as twisted as any Los Angeles freeway after an earthquake. Critics of his acquittal point to issues that took the trial where it had no business going, from the defense plea for racial reparations to breathless news bulletins on Marcia Clark's hairdo. Yet even within the strict letter of the law, the case unfolded with such grotesque distortions of what most Americans think of as normal justice that the system itself ended up in the dock. Verdicts are now coming down, and they are not pretty. From police irregularities to the issue of trial by jury itself, what the British writer G.K. Chesterton called "the awful court of judgment" has acquired a modern spin on the adjective.

Of course, extraordinary cases always run the risk of producing exaggerated lessons. In response to the abduction and murder of Polly Klaas, California and other states rushed to pass "three strikes'' sentencing laws with little thought for their effect on prisons and the courts. Now many legal observers worry about what changes, intended and unintended, the Simpson spectacle may engender. "Reforms will come speedily and without great caution or thought,'' predicts Brandeis professor Jeffrey Abramson, who wrote We, The Jury: The Jury System and the Ideal of Democracy. Says Yale Kamisar, a professor at the University of Michigan Law School: "If I were teaching criminal law tomorrow, I couldn't look my students in the eye. What I'm teaching them seems unrelated to what's going on in the real world."

Some legacies of the biggest case ever to unfurl continuously under the public eye are already evident. DNA sleuthing, exotic beyond belief a short while ago and still quite expensive, is becoming more common--as are more skeptical defense questions about lab procedures. "There is less need to proffer this evidence as if it's from some alien culture," says law professor John Dwyer of the University of California, Berkeley. "It's still not quite akin to, 'Here's a fingerprint--how can you possibly contest it?' but it's way different than it was 12 months ago." Already overburdened courts are bracing for the prospect of more criminal defendants who refuse to cop a plea, opting instead for an O.J. dash for daylight before a jury. Potential jurors may be loath to perform a duty that in the Simpson case proved to be a kind of medieval torture.

Other lessons will be drawn as politicians, police and the justice system propose steps to prevent some of the excesses of the Simpson trial from recurring. Just what those lessons should be, however, is a matter of debate--a prosecutor's needed reform may be a defendant's constitutional grievance. Among the points of contention:

POLICE PROCEDURE. To blacks who read the acquittal as a righting of scales that had been weighted against them, the glaring injustice for O.J. was police negligence, not to mention Detective Mark Fuhrman's bigotry. Investigators came off looking like Keystone Kops, which will certainly prompt a new skepticism about police testimony in all sorts of proceedings. Suggests prominent San Francisco trial lawyer John Martel, a Simpson prosecution consultant: "Perhaps an enlightened society has to pay a price like that to learn of the depth and cost of police misconduct, not just in Los Angeles but elsewhere."

Gerald Uelmen, the Santa Clara University law dean who served on the O.J. team, agrees that the trial was a much needed crash course in Fourth Amendment rights. "I think there's just a sense out there of, 'I'm never going to be charged in a criminal case, so what the hell should I care if the police go over my wall and search without a warrant?' I think we've got a job to do in terms of convincing people that we really are all winners when that system is respected." Peter Barnett of Forensic Science Associates, a DNA lab in Richmond, California, acknowledges the nightmare created by attacks on incautious handling of blood specimens. "People in the profession now recognize the necessity of increasing their own professional standing and activities," he says.

THE LAWYERS. The carnival atmosphere surrounding the courtroom led to so many antics that the case's substance of a horrible double murder was often lost in the din. West Los Angeles public defender James Bendat believes judicial gag orders on lawyers in spectacular cases are the best remedy. "That would have been the right decision in terms of dealing with the media and preventing this buildup of frenzy," he says.

Some reformers would go further and put new restrictions on lawyers' conduct inside the courtroom as well: California Governor Pete Wilson wants to restrict an attorney's right to use political rhetoric in front of the jury, like Johnnie Cochran's urging them to "send a message" about racist misconduct. This sort of jury nullification, wrote syndicated columnist George Will, in which the panel is motivated by something other than the particulars of the case, amounts to "approximately what Groucho Marx said in the movie Duck Soup: 'Who are you gonna believe, me or your own eyes?'" Legal scholar Kamisar notes that juries now and then will use latitude to ignore law and free a defendant on principle, "but as a general proposition, you can't tell them when they can exercise it." Prosecution consultant Martel agrees that Cochran went "somewhat over the top in terms of a lawyer's duty as an officer of the court."

THE JUDGE. Aside from Judge Lance Ito's lax hand on the whip, which allowed the lawyers to grill witnesses endlessly and argue and reargue points of law, Professor Barbara Babcock of Stanford Law School observes that Judge Ito was often late to arrive and took time to usher celebrities into his chambers. "If you sequester a jury, there should be pressure on everyone to go as fast as you can," she says. "I've never seen a sequestered jury treated this way. I think the message they got was that neither their time nor they were important." Motions should be heard "before court starts, and after court, and on Saturdays," says Babcock, who believes that in the Simpson case "the jurors became a little band with their own agenda, in opposition to the court and the system." Kamisar agrees that Ito "simply didn't take charge. There's no way you should let a witness stay on the stand for eight days."

THE JURY. The nearly instant decision after nine months of trial and what prosecutor Clark described as a "mountain of evidence" was the ultimate "embarrassment," in Kamisar's view. "The 12 smartest people who ever lived couldn't have sorted through the evidence and evaluated it in four hours," he declares. "I have to accept the verdict, but I don't have to respect the jury that rendered it because of their unseemly haste. They could at least have stayed in deliberations for nine hours--one hour for each of the million dollars it cost to prosecute the case."

What happened? Of its 266 days in very trying isolation, the jury spent only about half that time actually in court, the rest under virtual detention. Many knowledgeable critics are convinced that sequestration is not all it's cracked up to be. Uelmen "can't imagine" trying such a ballyhooed case as Simpson's without shielding jurors from prejudicial publicity, but he believes "we need to find some sort of middle ground" so that jurors do not end up as soul-sapped prisoners. "I think where the system is most vulnerable is the pool of people willing and able to serve," says Simpson prosecutor Brian Kelberg. "How are we going to get a surgeon or a bank president?" The potential jurors for big, sequestered cases tend to be unrepresentative: older, less educated and largely female. Moreover, sequestration is "a far cry from the foolproof system we think it is,'' says Kamisar. "Things slip through the seal"--conjugal visits, for instance.

Jury expert Abramson also believes that asking jurors to sit silently throughout a trial and not talk about a case is onerous and unreasonable. At the very least, he contends, jurors facing a welter of technicalities thrown at them without a clearly understood context should be allowed to ask questions screened by the judge. But Abramson would go further: "I favor allowing jurors to start talking [among themselves] about the one thing that's overwhelming their lives.''

THE TV CAMERA. The "self-consciousness of everyone concerned" dragged out the case, in the view of Vincent Blasi, a Columbia University law professor and courtroom-cameras advocate. Uelmen agrees that the "entertainment medium" took command: "We had witnesses who treated their testimony like a gig. We had witnesses who were afraid to testify, who were afraid of what it would do to their reputations." But, adds Uelmen, "evidence was uncovered because of television coverage. All those photos of O.J. wearing gloves at football games, for example, came from volunteers.'' Of his own experience with TV trials, Midwest lawyer Stephen Jones, counsel for Oklahoma City bombing suspect Timothy McVeigh, reports, "I only did one, and I regretted it then, and I would never repeat the same mistake. I think it's irresistible to play to the gallery." Late last week the judge who will retry Erik and Lyle Menendez on charges of murdering their parents barred cameras from those proceedings to "protect the rights of the parties, the dignity of the courts.'' Both those precious commodities, most observers agree, will need some rehabilitation after the Trial of the Century.

--Reported by Adam Cohen/Atlanta, Patrick E. Cole, Dan Cray and David S. Jackson/Los Angeles and Andrea Sachs/New York

With reporting by ADAM COHEN/ATLANTA, PATRICK E. COLE, DAN CRAY AND DAVID S. JACKSON/LOS ANGELES AND ANDREA SACHS/NEW YORK