We are the jury

September 14, 1994|By Jeffrey Abramson

WALTHAM., MASS. — WALTHAM, Mass.--EVEN BEFORE jury selection starts, the O.J. Simpson case has fueled two dangerous misconceptions about jury trials.

The first is that jurors often deadlock along racial lines. The second is that pretrial publicity destroys the impartiality of every prospective juror who follows the news closely. Neither of these cynical caricatures of jury justice is supported by the evidence.

When it comes to race, jurors certainly are not perfect. The first Rodney King trial reminded the nation of all that can go wrong when all-white juries sit in judgment of black defendants or victims.

And studies show that black jurors are less trusting than whites of police testimony and more apt to side with the defendant.

This is not an issue of racial loyalty. Black jurors are just as likely to doubt police credibility when the defendants or victims are white.

Mr. Simpson's lawyers have fashioned a strategy that seeks to parlay black suspicion of the police into a hung jury. You can't object to any defense lawyer probing for ways to convince jurors that the state's witnesses are lying.

But part of the strategy cynically depends on injecting race into a case that, unlike Rodney King's, is not about race at all. The defense has waged the equivalent of a political campaign, setting up a toll-free telephone number and using race to woo the votes of potential jurors.

Not only tabloids but also well-respected magazines like The New Yorker have helped the defense publicize unsubstantiated rumors about how one supposedly racist detective planted a bloody glove on Mr. Simpson's property.

Can such a strategy work? Many polls suggest that it could, showing a society divided on racial lines when it comes to opinions about Mr. Simpson's guilt or innocence.

But polls are one thing and trials are another. Although racial appeals to jurors are occasionally effective, every serious study shows that racial block voting is rare and that the prime determinant of verdicts is the strength of the evidence, not preconceptions rooted in race.

The second Rodney King jury united across racial lines to make careful distinctions among the four white defendants, convicting only two of beating Mr. King. As for hung juries, they occur in less than 5 percent of all criminal trials.

The polls are misleading too, because they isolate race's impact from other influences operating on potential jurors -- for example, their sex, income level and attitudes toward domestic violence.

And the polls are incapable of reflecting what may prove to be an important hidden influence in this case -- that jurors may perceive Mr. Simpson foremost as wealthy and privileged.

The multiple influences at work on jurors explain why the best jury selection experts dismiss predictions based exclusively on race as "blatant voodoo," according to scholar, Shari Seidman Diamond.

When jury selection starts, Judge Lance A. Ito should do his utmost to dispel any public suspicion that the outcome of the trial depends on the race of the jurors; he can start by rigorously enforcing the Supreme Court's safeguards on jury selection, which prohibit lawyers from challenging jurors because of race.

The judge has another delicate task in jury selection: how to rule when potential jurors are challenged as biased by pretrial publicity.

Historically, the right to an impartial jury never meant that jurors needed to approach the case with complete ignorance. Charles Manson, Jean Harris and Jeffrey Dahmer all were convicted of murder by jurors exposed to saturation levels of publicity. Few such convictions are overturned on appeal.

The most recent study estimates that press-induced bias is a serious problem in just 1 of 10,000 cases.

Of course, the Simpson case is exceptional. Through the summer, the prosecution and defense took turns lamenting media coverage, all the while shrewdly using it to get the jump on reaching potential jurors via television.

Once jury selection starts, lawyers typically sing a different tune and challenge would-be jurors on the sudden assumption that all the publicity favored the other side. Judge Ito may understandably think it safest to search for jurors only among those who paid least attention to the news.

That would be a mistake. It would recall the folly of the Iran-contra trial of Oliver North, where jury selection favored those like the panel member who said she "saw North on television but it was just like watching the Three Stooges or something."

Jury selection that discriminates against informed members of the community can only undermine public confidence in the integrity of jury verdicts.

Jeffrey Abramson, professor of politics and legal studies at Brandeis University, wrote this for the New York Times.

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