Outrage (52 page)

In light of the dynamics at play and the probable stereotypical perceptions by the conservative Simi Valley jury, the roles of the trial participants were reversed. To the Simi Valley jury, the man on trial was Rodney King, and the main lawyer arguing on his behalf, the prosecutor, was another black man. Assisting the black man was his co-prosecutor, who is Jewish. To many hidebound white conservatives, Jews are liberal, left-leaning
ACLU
types who deep down are really on the side of the criminal. The four white defendants, on the other hand, had four white, Christian, God-fearing lawyers defending them.

Although many law-enforcement-minded people were supportive of the not-guilty verdicts, even the officers’ own chief, Daryl Gates, was appalled by the beating. Inasmuch as Gates has always made it a practice to review personally each case of alleged excessive force, if anyone should recognize it, it is he. And Gates, who said he looked at the film of the beating twenty-five times, says that the beating was “a very, very extreme use of force—extreme for any police department in America.” He described the incident as “revolting and unconscionable. This was something that never should have happened. We have in place procedures to keep it from happening.”

And Gates’s predecessor, the deep-dyed conservative Ed Davis, had this to say: “If that kind of police conduct is lawful, as the jury said it was…then I don’t want to live here. If this wasn’t excessive force, what is?”

The not-guilty verdicts called up memories of the Deep South in the last half of the nineteenth century and the first half of this century, where white defendants were almost invariably acquitted by all-white juries when charged with crimes against blacks, no matter how strong the evidence of guilt was. The verdict of the jury in the King case clearly appears to have been wrong, occasioning a miscarriage of justice which produced momentous consequences.

So the jury system is not infallible. No system, in any field of human endeavor, is. But because there are a few aberrational cases like the Simpson and King cases doesn’t mean that it’s time to overhaul an institution which has served this nation well in literally millions of cases over the past two centuries. That’s just the voice of the unenlightened being manipulated by patently demagogic arguments. This is not to say that some small improvements could not be made. Jury instructions, for one thing, are in many instances poorly drafted and confusing, in some cases (e.g., “guilt or innocence”) actually wrong. A concerted effort should be made to formulate instructions that are a lot clearer and easier to understand for jurors.

Another possibility would be to mandate a minimum educational requirement for jurors who are to sit on highly complex and technical cases. This would be establishing a potentially dangerous precedent, however. If we start making changes in the jury system to meet some perceived need in a particular type of case, the changes may start to be applied to cases that were never intended to be covered by the change. Moreover, at what point, and under what criteria, would a case be considered highly complex and technical? It would be like trying to measure the immeasurable with a rubber ruler. Another proposal, removing highly complex and technical criminal cases from juries completely and placing them solely in the hands of a judge, would of course require a constitutional amendment. I personally would oppose it, having a lot more faith in twelve citizens chosen from the community than in one individual, a politician at that.

I think state laws requiring employers to pay employees when they are serving on juries might be advisable, since this would free up a lot of otherwise qualified people who are being excused at the present time because of hardship reasons. This should be a part of a movement to make jury service more mandatory than it presently is, which will result in a higher quality of juror.

Juries of experts, of course, make no sense at all. But for every foolish idea there will always be some fool to champion it, and this idea has been mentioned a great many times, even by some lawyers and judges. Hundreds of thousands of jury cases are heard every year in the United States. With twelve jurors to every jury, are we supposed to employ (and pay!) millions of experts to hear these cases? When an idea isn’t feasible on its face, why waste a breath talking about it?

One suggestion for change in our jury system which is rarely heard but which, in my opinion, has merit and should at least be given serious consideration is to eliminate all peremptory challenges, challenges for which no reason has to be given. (Only challenges for cause could be made.) This would undoubtedly serve to expedite the trial of a case, and I’m not too sure either side would suffer from it. I say that because many experienced trial lawyers will tell you that after weeks and sometimes months of voir dire, the jury you end up with is more often than not no better than the first twelve in the box. The reason for this phenomenon is that the juror one side wants is nearly always the one the other side does not. As each side excuses jurors who look good for the opposition, little progress is made and neither side benefits much.

Eliminating peremptory challenges would have the additional meaningful benefit of promoting the principal purpose of voir dire—to get a fair and impartial jury. Although each side publicly attests that that is what it is seeking during the voir dire process, what each side is really looking for are jurors who will be biased in their favor.

The change in our jury system which has been broached the most, and one for which I feel there is at least some arguable merit, is to eliminate unanimous jury verdicts in criminal trials, i.e., instead of needing all twelve jurors to convict, ten or eleven out of the twelve would suffice. This, the proponents say, would
substantially
reduce the number of hung juries. But would it? One has to realize that approximately 95 percent of all felony cases in the major metropolitan areas of our country never go to trial. They are disposed of by way of a plea bargain. And of the remaining 5 percent which are tried, only about 10 percent result in a hung jury. (In Los Angeles County it’s usually higher, around 12 or 13 percent.) This is about one-half of 1 percent, a minuscule number. Also, statistics clearly show that most hung juries are not 11–1 or 10–2 anyway. They usually range from 9–3 to 6–6, with most of them 8–4, 7–5 and 6–6. So in the majority of cases, a 11–1 or 10–2 requirement would still produce a hung jury.

In fact, the only two states in the union which have majority verdicts, Oregon and Louisiana, 10–2,
also
have hung juries, although they are always slightly below the national average. Granted, 11–1, 10–2, or 9–3 would eliminate some hung juries. The question is whether the change is worth it.

My personal view is that it’s not. In a criminal case, a defendant’s liberty, sometimes his life, is on the line, and to deprive an American citizen or any defendant in an American courtroom of his liberty or life should require not only a very high burden of proof for the state, but that all twelve jurors agree. It shouldn’t be forgotten that having a hung jury doesn’t mean the defendant walks out of court. You simply retry the case, and the majority of times a conviction is secured the second time around.

A unanimous verdict gives a legitimacy and finality to a verdict that a majority verdict, by definition, could never have. And I find no problem with securing convictions where a unanimous verdict is required. In those cases where the defendant did, in fact, commit the crime, if the police do their job and the DA does his, there is normally no difficulty at all persuading all twelve jurors to vote guilty. Making it easier to get a guilty verdict, it seems to me, increases the likelihood that law enforcement, instead of being more diligent and more competent in putting their case together, as we want them to be, will become less diligent and competent, feeling they don’t have to work quite as hard to secure a conviction.

Also, human nature being what it is, it would seem that under the majority system, those jurors in the majority wouldn’t have as much of a motivation to listen carefully, if at all, to the views of the minority jurors, because they would know the vote of these jurors wasn’t necessary for a verdict, and this is not a healthy circumstance. A majority verdict would eliminate the type of situation portrayed in the movie
Twelve Angry Men
—a hold-out juror (Henry Fonda) finally convinces the other eleven of his point of view. Surprisingly, this isn’t an uncommon phenomenon. Although one juror turning around eleven is very rare, two or three turning around a majority is not. A University of Chicago study a few years back found that in roughly 10 percent of all cases, which would translate into thousands of cases, the minority jurors eventually succeeded in persuading the original majority to come over to their side.

Despite some recent bad experiences, I still have confidence in the jury system. And I view it as perhaps the most fundamental safeguard against tyranny we have. When you stop to think about it, in America only a jury can cause a fellow human being to end up behind prison bars. For instance, unless a defendant in a criminal case gives up his constitutional right to a jury trial, no judge can find him guilty and place him behind bars. Even the president of the United States cannot put someone behind bars. Law enforcement—the police, the
FBI
, etc.—can put you in the pokey, but if you are not convicted in a court of law, they can’t keep you there. Only a jury made up of everyday American citizens can cause someone to end up behind prison bars. So in a very real sense, the American jury is all that stands between the accused and his loss of liberty. And this realization is at once awe-inspiring and supremely reassuring. I think that one can see at a glance the very high and delicate ground the American jury occupies. It should be tampered with very little, if at all, and always with caution.

Louis Nizer once said: “I would rather trust twelve jurors with all their prejudices and biases than I would a judge. I think the reason democracy works is because as you multiply judgments you reduce the incidence of errors.” Richard Lempert, a professor of law and sociology at the University of Michigan, adds that “the jury benefits from diverse perspectives. The janitor may know something about pipes, and somebody else might know something about how the police work.”

I have found that like Truman rising to the presidency, jurors usually rise to the occasion. They normally put aside their petty biases and differences because they know they have a tremendous responsibility to do the right thing—they’re judging a fellow human being, and it’s something they’re going to have to live with for the rest of their lives. By and large, they are very conscientious and honorable, and base their verdict exclusively on the evidence that comes from the witness stand.

The jury system, throughout the years, has been subject to many attacks, but no one has yet come with a better system, in my opinion, to determine the fate of one’s fellow man.

One thing is clear, however. The Simpson verdict, being a terrible miscarriage of justice, and one of the darkest days ever
for
American justice, has had an injurious effect on Americans’ faith in the jury system. The majority of Americans believe O. J. Simpson is guilty, and they saw the issue of his guilt being subverted by the fabricated and extraneous issue of racism. Justice, of course, was the victim. What happened in the Simpson case takes one back to what Supreme Court Justice Oliver Wendell Holmes, Jr., said to a young whippersnapper lawyer who injected the word “justice” one too many times into his oral argument before the Court: “I must remind you, young man, this is a court of law, not a court of justice.”

The fate of O. J. Simpson

It will be interesting to see if, with the passage of time, O. J. Simpson is accepted back into the good graces of the majority of American people. So far, he has not been. In fact, he isn’t even welcome in his own community of Brentwood, the board of directors of the Riviera Country Club expelling him from club membership. And many of his neighbors, by signs such as “Welcome to Brentwood, home of the Brentwood Butcher,” have let him know he is
persona non grata
. Also, the Hertz Corporation did not renew his contract, and his agents, International Creative Management, dropped him. My guess is that Simpson will eventually be able to ease his way
partially
back into normal society. However, because there was such a massive torrent of publicity in this case, and over such a protracted period of time, the beliefs of those who feel he is guilty have hardened and become more immutable than they would normally be. And therefore his road to rehabilitation will reach a point beyond which he will never proceed.

It should be noted that crowds of tourists, mostly white, still congregate daily outside the gates of Simpson’s Rockingham estate, hoping for a glimpse of him. When, on occasion, he decides to grace them with his presence, they swarm about him, hugging him, seeking his autograph, and, if especially fortunate, even securing a photo of themselves smiling with Simpson. There’s less to these people, of course, than meets the eye.

The other possibility is that Simpson will become an even greater national pariah than he already is, and like another person acquitted of a double murder just over a century ago, be forced to live an even more ostracized life. In 1892, Lizzie Borden, like Simpson, was acquitted of a highly publicized double murder—that of her stepmother and father, in her parents’ home in Fall River, Massachusetts. Also like Simpson, Lizzie Borden did not testify in her defense, and like the Simpson jury, the Borden jury deliberated only briefly, a little over one hour. The trial, however, lasted but thirteen days.

Despite her acquittal, Lizzie Borden was shunned and scorned by the people of Fall River, who believed her to be guilty, and she led a reclusive existence until her death in 1927 at the age of sixty-six. Her presumed guilt became immortalized not just in a spate of books and plays on the case, but in this well-known ditty:

bq.

bq.
Lizzie Borden took an ax