THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Monday, November 7, 1994 TAG: 9411060003
SECTION: DAILY BREAK PAGE: E01 EDITION: FINAL
SOURCE: BY JON FRANK, STAFF WRITER
LENGTH: Long : 127 lines
NOW THAT THE JURY for the O.J. Simpson trial has been chosen, the next question to ask is will justice be served or will it be mocked by the expensive, psuedo-scientific method used to select the eight women and four men who will sit in judgment?
That's because the trial's jurors went through a selection process that was probably unprecedented in its thoroughness.
Jury consultants were hired. Questionnaires drafted. Psychologists consulted. Handwriting samples analyzed. Mock trials held. Weeks of trial time were devoted to the process.
But now the psuedo-science is over, right? And the job of determining guilt and innocence can begin. Right?
No, that's not right, according to Steven D. Penrod. Penrod, a law professor at the University of Minnesota with a special interest in jury matters, believes that analysis of juror behavior is far from over in the Simpson case. It will continue right through the trial, he says.
Penrod expects, for instance, that a ``shadow jury'' will be used by the defense to assess the impact of various types of evidence presented during the trial.
If used, the shadow jury would be chosen to match the real jury as closely as possible. Shadow jurors then would be available after each day's testimony for questioning about how the evidence presented during that day of the trial impacted them. Shadow answers would then be used to determine what strategic changes should be made. Jury consultants, psychologists and possibly body-language experts may be needed to interpret shadow jury responses.
``I would say that if the resources are available, there would be useful information from doing that,'' said Penrod.
Those kind of strategic questions are a big part of what makes the Simpson case so fascinating, says Tom Munsterman, director for the center for jury studies of the National Center for State Courts.
``You don't know what the strategy is or if the strategy is correct,'' Munsterman said. ``That is why Americans are having such fun with this case.''
All the strategy and expenditures of money - by both Simpson and the prosecution - are certainly within the rules of American justice. But are they in keeping with the spirit of what the Founding Fathers had in mind when they wrote the Sixth Amendment of the Constitution to guarantee defendants a fair and speedy trial before a jury of his or her peers?
That may be a question the Simpson case helps answer because the whole thing was done while the world watched the jury pool surgically pared down from 300 to 12.
The key word is surgically. Make no mistake about it, says Court TV's Gregg Jarrett, attorneys on both sides of the O.J. Simpson case did not try to choose a fair and impartial jury to determine if O.J. killed his former wife, Nicole, and her male friend Ronald L. Goldman in June.
``Every case dictates different desires for jurors,'' Jarrett said. ``In this case, they are looking for bias. They would love to have bias.''
Jarrett says that each side wanting a different sort of bias is what saves the process from being a joke. But that hasn't stopped the criticism of a system that doesn't seem to try for a jury of peers so much as it does a jury of sheep.
Some experts believe Simpson's defense attorneys had one goal in mind in choosing a jury: Find the most uninformed and easily manipulated group of people possible. Then structure the defense so that it appeals to the easily aroused emotions of the 12 that will sit in - um, err - judgment.
Voila! An acquittal. Or a hung jury, at least, since only one juror needs to balk in order for the Simpson jury to be hung.
The prosecution attorneys, most experts say, wanted females appalled by the very idea of domestic violence to predominate on the jury. A less than enthusiastic opinion of professional sports and those who participate in them is another characteristic that was sought in jurors by the prosecution, some experts say.
And then there is race. A study conducted by two Regent University professors - William J. Brown and Benson P. Fraser - indicates that African Americans are much more prone to believe that Simpson is innocent than are members of any other racial group. City of Los Angeles Prosecutor Marcia Clark has requested the study's results. And it seems safe to assume that as much as the defense wanted African Americans on the jury, the prosecution probably did not.
But the O.J. case isn't the first time that the effectiveness of the jury system in determining justice has been called into question.
Other recent, high-profile, cases have had jury verdicts that brought the same kind of criticism. The Menendez brothers in California confessed to shotgunning their parents to death, but two hung juries could not see the logic in convicting them of a crime. The first Rodney King trial produced a not-guilty verdict that also seemed to fly in the face of reason. And Lorena Bobbitt got away with mutilating her husband when a jury found her not guilty by reason of insanity.
O.J.'s case will challenge public perceptions of the jury system like no other.
``I think this case is like nothing we have seen before,'' Munsterman said during a recent telephone interview. ``This may be the real test of the system.''
``There is nothing standard about the O.J. Simpson case,'' said Shari Diamond, a professor of psychology at the University of Illinois and a senior research fellow at the American Bar Foundation. ``It is a nightmare kind of case, and my heart goes out to the judge. It makes it hard to handle jury selection well, and it seems complicated by the fact that some jurors seem more interested in serving on the jury than is healthy.''
Peremptory challenges - a key element to the jury selection system - may come under particular fire following the Simpson trial. Peremptories allow attorneys to strike potential jurors from the jury without giving a reason. They are the way that attorneys can most subtly mold the composition of a jury. Each side has 20 in the Simpson case, with the option of appealing for more.
The Supreme Court already has trimmed the use of peremptories by ruling that attorneys cannot strike jurors on the basis of gender or race. Further trimming is possible, experts say.
``We really don't know how how effective peremptories are anyway,'' Munsterman said ``But eventually I think we are going to see them reduced. It has already been done in some states.''
``We might see peremptory challenges eliminated or reduced substantially,'' Penrod said.
Some argue that a better way is the Canadian and British approach of choosing a jury by virtually pulling names out of a hat. But Penrod is not convinced.
``I'm not sure you would have the best jury with the first 12 through the door,'' he said. ``We need some mechanism where challenges can be used.'' ILLUSTRATION: Associated Press color photo
Jo-Ellan Dimitrius, jury consultant for the defense, talks with O.J.
Simpson in court.
by CNB