Richter cartoon from the New Yorker shows a...


September 29, 1994|By THEO LIPPMAN JR.

AN OLD Richter cartoon from the New Yorker shows a defendant and his lawyer standing before a judge in a courtroom. The judge says:

"Since you've already been convicted by the media, I imagine we can wrap this up pretty quickly."

Ah, if only that were so. But as the O. J. Simpson trial demonstrates conclusively, media coverage of a case does nothing to speed things up. Nor, I would add, does it prejudice the case against an accused.

Judge Lance Ito, Simpson's judge, has been warning potential jurors to avoid exposure to the media. But everybody in Los Angeles County has already been overexposed to the media coverage of this case. Everybody everywhere has, for that matter.

Simpson's lawyers say the media coverage has in effect convicted him. But the prosecutors in the case held a sort of mock trial or "focus group" session with people in Arizona pretending to be jurors, and they voted not to convict.

No matter what criminal defense lawyers say, jurors usually make up their minds on the basis of what they hear in the courtroom, not what they read in the checkout line at the supermarket.

A 1977 scholarly study of the influence of news coverage on juries concluded:

"For the most part juries are able and willing to put aside extraneous information and base their decisions on the evidence."

I know that I could do that, even though I, like Judge Ito, am pretty sure as of now that Simpson is guilty. I can admit that. He can't, not in public. But I've heard more than one judge say that when an indicted defendant comes before him, he always presumes guilt.

Understandable. According to U.S. Department of Justice's Bureau of Justice Statistics, when felony defendants go to trial, they almost always are convicted. A 1990 BJS study of the 75 largest counties revealed that 98.5 percent of defendants whose cases were not dismissed, deferred or diverted were convicted. In cases where murder was one charge, the conviction rate was 88 percent (63 percent for murder, 25 percent for lesser charges).

I think I'd make a good juror, but if I were a criminal defense lawyer I wouldn't want me. I'd try to get the judge to dismiss me "for cause," and if that failed probably use a "peremptory challenge" to keep me off the jury. A peremptory challenge is one without cause, just a lawyer's hunch (or advice from a consultant) that a prospective juror is not a safe bet. According to a 1986 study, 30 percent of all Americans called for jury duty are sent home that way.

Lawyers and prosecutors often use peremptory challenges against would-be jurors just because they are members of groups -- racial or gender -- they think are as a general rule more likely to be antagonistic or sympathetic to the defendant.

The Supreme Court says that's a no-no, but you can bet the farm that the lawyers on both sides in the Simpson case will try to get away with it.

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