Lack of death penalty will aid in Simpson jury picks

September 11, 1994|By Los Angeles Times

LOS ANGELES -- The decision by the Los Angeles County district attorney's office not to seek the death penalty against O. J. Simpson alters many aspects of the trial, most notably the jury selection process, legal analysts and others said yesterday.

At the same time, the move probably means that the Simpson trial -- which has already sparked public discussion about hot-button issues such as domestic abuse, racism and police conduct -- will not become a vehicle for prolonged debate about yet another volatile topic, the death penalty. And it also may expose the county's chief prosecutor to potential political fallout.

The analysts predicted that the decision will shape the panel of ++ prospective jurors, shorten jury selection and possibly leave prosecutors with a pool of potential jurors less inclined to convict Mr. Simpson.

Prospective jurors who cannot support the death penalty are automatically excused from cases where capital punishment is being sought. But Friday's decision means that those people now may sit on the Simpson jury.

Because they tend to be more liberal, capital punishment opponents generally are considered more likely to vote to acquit criminal defendants, and thus the decision not to seek the death penalty may work against prosecutors' main objective: to have Mr. Simpson found guilty of the murder of his former wife and her friend.

Like several others, Charles J. Ogletree Jr. of Harvard Law School said the decision "has shifted the advantage to the defense in selecting the jury. There are many jurors, and particularly jurors of color in California, who are opposed to the death penalty and who would have been disqualified from serving. This ensures a more diverse pool of potential jurors and increases the likelihood of a hung jury or an acquittal."

Some observers said the decision, although it may cost prosecutors some tactical points and gain them others, was in many ways a bow to the inevitable.

"What the D.A.'s office has admitted by making this decision is that the horror of the offense is never going to outweigh the humanity of the alleged offender," said Gigi Gordon, a Los Angeles criminal lawyer. "You can't dehumanize a guy who's been sitting in your living room for 27 years. No jury would execute this man. He will never be a thing. He will always be O. J. Simpson."

In the short run, opponents of capital punishment say the Simpson case may call new attention to their efforts, which have met with little support from the general public.

"Simpson's case has educated people about the importance of having adequate legal representation as well as having access to independent experts, and that is what is missing in so many capital cases," said Stephen B. Bright, director of the Southern Center for Human Rights in Atlanta.

For District Attorney Gilbert Garcetti, the issue is not likely to go away so quickly. Few topics in criminal justice are as charged as capital punishment, and some political analysts predict that if Mr. Garcetti runs for re-election, he will have to fight off accusations that he yielded to pressure in the Simpson case.

Already, in fact, some critics have accused his office of playing politics by not seeking the death penalty against Mr. Simpson while nevertheless pursuing it against the Menendez brothers, who are charged with first-degree murder in the shotgun killings of their parents.

Others attacked the district attorney for failing to seek the penalty in a case where domestic abuse is alleged. And still others criticized him for their perception that prosecutors relied on a focus group that met last month in Phoenix to help decide whether to try to execute Mr. Simpson.

Most legal observers backed the district attorney's move, saying that the Simpson case did not meet the district attorney's criteria for capital punishment.

In fact, had the decision been announced soon after Mr. Simpson was charged, most observers said prosecutors probably would have faced little criticism.

But even among observers who supported the decision, many criticized the district attorney's office for not acting more quickly. Prosecutors originally had said they would have a decision no later than Aug. 31. Mr. Simpson's attorneys complained that the delay hampered their efforts to prepare for trial, and their concerns were echoed by the judge and other legal observers.

Moreover, by failing to disclose their reasons for not seeking the death penalty, the district attorney's office raised questions about what distinguished this case from others in which prosecutors ask for executions.

The Los Angeles district attorney's office has 12 criteria to assess whether to seek the death penalty, but prosecutors did not reveal Friday which of those criteria were applied in the Simpson case.

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