Open season on jurors

August 04, 1994|By Willie L. Brown Jr.

Sacramento -- FOR WEEKS on end, the O.J. Simpson case has transfixed the nation with a compelling combination of horror, suspense, high drama and celebrity.

At the same time, this case has raised serious questions about whether O.J. Simpson -- or anyone else charged with a high-profile crime -- can receive a fair trial. At a minimum, any thoughtful person must wonder how, in the aftermath of such intense media coverage, there could possibly be 12 impartial jurors left in the city of Los Angeles.

One aspect of the Simpson case is particularly troubling: witnesses who have sold their testimony for a fee. Two of the witnesses at Mr. Simpson's preliminary hearing admitted, under oath, to selling their stories to the National Enquirer for $12,500. The testimony of one of these witnesses was particularly disturbing. He had sold his story, he said, "because I thought there should be something in this for me."

And, of course, in the testimony-for-sale market, these gentlemen were strictly small fry. The free-spending purveyors of checkbook journalism have offered mind-boggling sums to Mr. Simpson's groundskeeper ($100,000); his first wife ($100,000); and his friend, A.C. Cowlings ($1 million).

The bid for Mr. Cowlings' story was made by the National Enquirer, which described the offer as "one of the highest fees in journalistic history for an exclusive interview."

Such a practice damages the right to a fair trial in two important ways:

First, it compounds the problem of pre-trial publicity, since there are clearly some people who would not talk to the press without payment.

Second, and more importantly, it intrudes upon the judicial process, because it creates an incentive to lie. That kind of incentive can be devastating in a trial. A witness who tells the truth, but admits to being paid for his or her story, may lose credibility in the eyes of the jury. A witness who has lied in order to get a $100,000 or $1 million fee, on the other hand, could compromise the entire proceeding.

The American judicial system is dependent upon the voluntary participation of citizens -- both as witnesses and as jurors. When such participation is linked to the receipt of large sums of cash, the very integrity of the judicial process is at risk. In criminal cases, where the life and liberty of a defendant are at stake, such practices should not be permitted.

Therefore, when the California legislature re-convenes next Monday, I will introduce legislation to prohibit witnesses from accepting payment or benefit for disclosing evidence regarding a criminal act. Violations will be punishable by either six months in jail, or a fine of up to three times the amount the witness was paid for the information, or both.

Such a restriction will only apply for one year from the date of the alleged criminal act, if there is no prosecution. If a trial is held, the prohibition will apply until a final verdict is rendered. The measure will not apply to compensation paid to: expert witnesses, investigators, other persons engaged in the defense or prosecution of a criminal case, police informants, or print, television or radio journalists.

In addition, the measure recognizes the potential damage that may result when jurors are in any manner compromised by an offer of money in exchange for information in a criminal case by providing that, until a juror is discharged, he or she may neither accept payment nor an offer of future payment for any information relating to the trial.

The Bill of Rights, which guarantees freedom of speech and freedom of the press, also establishes, through the Sixth Amendment, the right of criminal defendants to a fair trial.

This legislation addresses two serious threats to that basic right -- the tainting of witnesses and jurors who sell their stories.

When fundamental rights are in conflict, remedies must be crafted which create a reasonable balance without erring unnecessarily in either direction. I believe this legislation, which is narrowly drafted to address one serious and specific problem, meets that test.

Critics may argue that the spirit and intent of this measure run counter to the free speech guarantees of the First Amendment. This is the slippery slope argument, which says that, once we start down the path of modifying First Amendment rights, it will become more and more difficult to reverse direction.

The framers of the Constitution did not and could not have foreseen the problems which result when jurors or material witnesses are paid for information regarding a criminal case. Surely, however, even staunch defenders of the First Amendment cannot reasonably argue that there is an explicit constitutional guarantee to compensation for giving testimony or serving on a jury.

In striking a balance between the First and Sixth amendments, it is both reasonable and necessary, given the scope and influence of the mass media today, to support free speech, but not paid speech.

Willie L. Brown Jr. is speaker of the California Assembly. He wrote this article for the Los Angeles Daily News.

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