Simpson trial nightmare: Possibility of a hung jury

April 09, 1995|By ROGER SIMON

It is nightmare time at the O. J. Simpson trial.

The trial has been halted and is not scheduled to resume until Tuesday.

"Nobody knows what is going on anymore," a court official told me Friday. "It's chaos here."

The chaos began when a dismissed juror (the sixth juror to be dismissed since January) gave a TV interview last week in which she said jurors have been discussing the case among themselves and have been discussing the case on the phone with outsiders.

If the jurors really have been discussing the case among themselves, this would be a violation of Judge Lance Ito's orders, but probably not fatal to the trial.

The claim that sequestered jurors are being "polluted" by outsiders, however, would be enough to have a mistrial declared in most ordinary cases.

But this, as everyone knows, is no ordinary case.

For practical reasons, Judge Ito needs the agreement of the defense to declare a mistrial, after which a second trial would begin.

And, normally, Simpson's lawyers would readily agree to a new trial for at least three reasons:

They now know the prosecution's entire strategy.

At a second trial they might get all the evidence gathered at the Simpson estate, including the bloody glove, thrown out.

And a new trial would give lead defense attorney Johnnie Cochran a chance to re-craft what has become an embarrassing opening statement -- one in which he promised to present testimony from two defense witnesses he may now never present.

So the Dream Team normally would be delighted to get Simpson a second trial rather than risk two murder convictions.

But, as I wrote months ago, one person would not be delighted: O. J. Simpson.

Unlike the rest of America, he does not view what is happening to him as a nifty daytime soap opera.

To him it is agony.

He has been in jail for almost eight months and the prospect of a second trial, which could easily extend his stay by another year if not longer, is something he does not want to contemplate.

Instead, he wants out of his 9-by-7-foot cell, and he is convinced he will be found not guilty by his current jury.

But even if Judge Ito can solve the problems with this jury, this case may not be over soon. The jury has been sequestered for nearly three months, but because of the lengthy arguments among the lawyers, has not heard all that much testimony.

And several weeks ago, the prosecution darkly hinted to reporters that this trial could go to September or October.

(The second murder trial of Lyle and Erik Menendez is scheduled to begin June 12, the one-year anniversary of the murders of Nicole Brown Simpson and Ronald Goldman. Many hoped the Simpson trial could be wrapped up by then.)

Normally, lengthy trials with sequestered juries help the prosecution. This is why:

The prosecution goes first. The jurors see witnesses called by the prosecutors and cross-examined by the defense attorneys.

And then one day the prosecutor stands up and says, "The people rest, your honor."

And the jury breathes a sigh of relief and figures the whole thing will be over soon.

But wait! Now, the defense lawyers stand up and begin their case.

And the jury gets angry and blames the defense for every day the trial drags on.

Not that the defense is forced to present any case or any evidence.

O. J. Simpson is presumed innocent and the burden is entirely upon the prosecution to prove him guilty beyond a reasonable doubt.

But the defense almost always does present a case. And there are hundreds of names on the defense witness list in the Simpson case.

If the newly dismissed juror is to be believed, however, (and it should not be forgotten that she is angry and humiliated over being dismissed) none of this might matter.

She says she thinks there may be black jurors who will not vote for guilty and white jurors who will not vote for innocent, no matter what the evidence shows.

In which case, there will be no verdict.

There will be a hung jury.

And this entire trial will have been for nothing.

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