As jury selection begins this week in the O.J. Simpson murder trial, debate continues over whether it is possible to find 12 impartial people to decide such a highly publicized case. Stephen Adler, 39, legal-affairs editor of The Wall Street Journal, says that deeply ingrained flaws in our legal system will make the task harder. In his new book, The Jury: Trial and Error in the American Courtroom (Times Books), Adler examines seven criminal and civil trials and demonstrates how jurors can endup “missing key points, focusing on irrelevant issues, succumbing to barely recognized prejudices, failing to see through the cheapest appeals to sympathy or hate, and generally botching tire job.” Adler is married to Lisa Grunwald, 35, a novelist, and lives in Manhattan. He spoke with staff ‘writer David Ellis.
Is justice being served by our present jury system?
Most of the 150,000 jury trials each year take place outside the limelight, and jurors tend to do a good job. But juries have developed a reputation akin to baseball’s Chicago Cubs, who always seem to lose their biggest games. When it comes to high-profile cases, like the Menendez murders or the beating of Rodney King, it is not uncommon for a jury to reach a verdict that seems sharply at odds with the evidence.
What leads juries to do thus?
Well, the first thing is that there’s press coverage, and the lawyers can try to influence potential jurors by leaking evidence and pandering to the media. In the Simpson case, lead defense attorney Robert Shapiro has even been signing autographs outside the courthouse, which is very unseemly.
Is it possible now to impanel an impartial jury in the Simpson case?
It would be almost impossible to find people who have never heard of O.J. Simpson, and even if you could, those people would be so odd and isolated they would not be good jurors. On the other hand, you don’t want jurors who have been obsessed with the case. The most important thing is to find good citizens who are able to concentrate on evidence presented in the courtroom and listen to the judge’s instructions. I think there will be many people in the jury pool who will fit that description, but they may not be the ones who end up being selected.
The defense and prosecution will each have 20, rather than the typical six, peremptory challenges, to dismiss jurors without having to give a reason. Lawyers use these challenges to try to stack a jury by selecting the kind of people opinion researchers indicate will be partial to their client or to exclude thoughtful decision makers in favor of people who are easily confused and swayed by their feelings. Gerry Spence, the famous trial lawyer, prefers overweight people in a criminal case because he feels that they are more forgiving of people who might not be able to control impulses.
If you were on O.J.’s defense team, whom would you want on the jury?
His attorneys will look for people who don’t identify with society, and people who will be willing to consider the possibility that there is a vast conspiracy against the defendant. Assuming the prosecution will rely heavily on DNA blood tests, the defense will also look for jurors who are confused by scientific matters and get impatient or angry about highly technical evidence!
What kind of jurors will the prosecution be hoping to get?
They will probably look for churchgoers and others who identify with the institutions of the community. Homeowners are more desirable than renters because they tend to be more concerned with maintaining law and order.
What prompted the prosecution’s decision not to seek the death penalty?
It would have been much more difficult to get a conviction from a jury. The prosecution’s best chance of winning the case is to emphasize the theory that it was a crime of passion—that perhaps Simpson’s actions, while premeditated and cruel, were basedon emotions that overwhelmed him. Because of his celebrity, no jury would find him a monster and condemn him to death.
What role have jury consultants played in the Simpson case?
Both the defense and prosecution have hired jury consultants to stage mock trials. Typically you bring in 12 people you think might mirror the eventual composition of the jury, present the case to them and study their responses. None of the lawyers have been anxious to reveal results of these mock trials. But accounts from people who participated in them indicate they are generally coming out with hung juries. The insidious part about this is that no matter how shaky your case may be, you can make it look good if you have enough money to pretest it.
How would you fix the jury system?
Now jury service is more like a volunteer army than a draft, and too many people successfully avoid it. If you are called, you should serve. Also peremptory challenges must be curtailed. I’d preserve challenges for cause, which allow for jurors to be dismissed because of obvious bias. But we should not go through this strategic game of challenging jurors because of their looks, race, sex or occupation. This is contrary to what our whole jury system should be about. When jurors show up at the courthouse, I think that with very limited exceptions we should seek to put the first 12 people into the jury box.