The Forensic Uses of Race

March 03, 1995|By CLARENCE PAGE

WASHINGTON — Washington. -- Could the salt-and-pepper racial makeup of the legal teams in the O.J. Simpson trial be a thinly veiled attempt to impress a mostly black jury?

Could the jury's racial makeup explain why Christopher Darden, a black prosecutor, argued so long and ultimately unsuccessfully to keep ''the n-word'' out of testimony while black defense lawyer Johnnie Cochran argued just as passionately to keep it in?

Could the jury's makeup have anything to do with the defense efforts to blame Mr. Simpson's arrest on a setup by racist cops who didn't like Simpson's interracial marriage?

Was it only coincidental that Mr. Cochran asked a police detective whether the detective had taken an item ''to your home in Simi Valley?'' Or could that have been a subtle reminder to the jury of the place where four white police officers were acquitted of brutality in the beating of Rodney King, which triggered the 1992 Los Angeles riots?

Could Mr. Simpson's race and that of the two white victims have had any impact on the results of a Harris Poll released in February that shows 61 percent of whites believe Simpson is guilty while 68 percent of blacks believe he is innocent?

Whoever said that a trial is a contest to see who has the best lawyer would have been impressed with the Simpson case. Arguments between these blue-ribbon legal teams often have not the slightest thing to do with the former football and movie star's guilt or innocence. They have everything to do with whether he is a good person or not, and whether those who are testifying for and against him are decent folks or pure-bred scoundrels.

Anything goes in court and the defense has an advantage, since it has only to convince just one juror to dissent to get a hung jury while the prosecution has to convince all 12 to get a conviction. Perhaps that might explain why a recent poll found that an overwhelming majority of lawyers polled thought Simpson would not be convicted.

No matter which way the trial comes out, a certain number of people will blame the issue of race. The emergence of the ugly ''race card'' in this trial is ironic since Mr. Simpson owes much of his public fame to his refusal to make a big deal of the fact that he is African-American.

But, now that Mr. Simpson is in trouble, his race in the context of racially troubled America becomes reason enough for a shadow of doubt in many minds about the charges against him. If some of those minds happen to be on his jury, rest assured that his lawyers will not miss very many opportunities to play to their doubts. None of which makes the jury system look very good.

Ironically, it brings to mind the all-white juries that convicted many innocent blacks in America's less-enlightened past. To many black Americans, the past is not so far past, especially in California, where the Simi Valley jury's leniency presaged a rise of backlash against immigrants in last November's elections and an expected ballot back- lash against affirmative action in 1996.

Legal and social critics varying in gravity from lawyer groups to the McLaughlin Group have been questioning whether a hung jury or ''not guilty'' verdict might destroy public faith in America's system of justice and encourage more people to take the law into their own hands.

A version of that appeared in the riots after the Simi Valley verdict. Another version appeared in irate radio talk-show calls from angry whites after a jury sentenced the rioters who attacked white trucker Reginald Denny to lighter sentences than prosecutors had requested.

In the best of all possible worlds, Mr. Simpson should be judged on the evidence, not on jury prejudices. Yet, juries were designed, it must be remembered, to ensure that community values would be expressed in the judicial process.

As dissatisfying as our jury system always will be to somebody, its virtue is found in its measure of the public mood. A divided, dissatisfied community produces a divided, dissatisfying process. It is not the fault of the courts that white people have moved away from the cities where juries for high-profile cases are chosen.

Nor is it the fault of the courts that a sharp attorney like Mr. Cochran, who also represented Mr. Denny during the trial of his attackers, can put the police department on trial in a city where for years black complaints of police brutality were not taken seriously enough.

If justice has a tough time getting over the hurdle of race in this case, the rest of us should take that as a wake-up call, just as the King trial, the Denny trial and so many other episodes of aroused racial tension across the country have been in recent years.

Instead of heeding the wake-up call, we too often push the ''snooze'' button and roll back over. We might put a lid on our boiling social divisions by changing the jury system, but that won't keep our national melting pot from boiling over. First, we have to turn down the heat.

Clarence Page is a syndicated columnist.

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