2 THE LAW SCHOOL RECORD Once I was invited to dinner by an elderly gentleman from

China. When my host discovered that I was a law student,

he talked about the American legal system. "There, in the

courtroom," he said, "are two lawyers.

And above them, at the head of the

courtroom, is the judge. He is even older, URY even wiser, even more experienced, and even more respected than the lawyers.

But who decides the case? Twelve people brought in from

the street!" The old man laughed.

With youthful enthusiasm, I sprang to the defense of

the jury system. Law is too important, I said, to be left to the

people who do it for a living. I argued that the jury offers an

essential check against overzealous prosecutors and against

high-handed judges. To my surprise, the more I talked, the

more the old man laughed.

Today's newspaper stories, particularly the ones from

California, offer good reason to believe that the old man was

right. Our jury system appears to have grown preposterous.

Perhaps one should not criticize a particular verdict without

undertaking a review of all the evidence before the jury.

When viewed in the aggregate, however, the news accounts of

jury verdicts in recent high-profile cases seem troublesome. By ALBERT W. ALSCHULER Volume 41, Fall 1995 3 The Menendez brothers drove an Alfa gloves appearing in one photograph were acquittals have come mostly in cases in Romeo recently given them by their Aris Isotoner Lights, model 70263. The which the asserted victims of crimes of vio­ father to San Diego where they purchased glove found on o. J. Simpson's estate was lence were members of racial or other a twelve-gauge shotgun. Two days later, only one of nearly three dozen blood minority groups and in which the defen­ they used the gun to kill their father and exhibits connecting Simpson to the mur­ dants were non-members of these groups. their mother. Ambushing their parents as ders. Abundant other evidence pointed to In 1979, a jury that included no homo­ the couple watched television, the young his guilt. sexuals tried Dan White for murdering men fired the gun sixteen times before Following an eight-month trial, a jury George Moscone, the mayor of San they were done. Two juries heard their deliberated three hours and forty minutes Francisco, and Harvey Milk, a San essentially uncorroborated (though tear­ before finding O. J. Simpson not guilty of Francisco Supervisor and prominent gay ful) claims of sexual abuse and of a pater­ . Mark Fuhrman, the detective who activist. The jury accepted White's partial nal threat to kill them if they made the testified that he had found the bloody defense of diminished capacity, a defense abuse public. In addition, jurors heard glove at Simpson's estate, had perjured often called "the Twinkie defense" expert testimony concerning scientific himself before the jury by denying his use because a defense expert testified that research on snails and the "rewiring" of of racial epithets. Moreover, when prose­ junk food was one of the influences that Erik Menendez's brain that followed his cutors required Simpson to tryon the Aris had deprived White of the capacity to act father's abuse. In a legal system that seems Isotoner gloves at trial, the gloves did not with malice. Following the verdict, 5000 sometimes to trust jurors implicitly and fit. (A pair of the same model and size gay men marched on city hall, smashed sometimes not to trust them at all,· the that had not been soaked in blood or sub­ windows, and overturned and burned jurors were not permitted to hear about a jected to forensic testing, however, did eight police cars. play that Erik Menendez had written 20 fit.) The defense theorized that Fuhrman In 1991, a jury that included months before his crime-one in which a had discovered a bloody glove at the crime no Jews acquitted El-Sayyid Nosair of killing young man kills his parents with a shotgun scene that had gone unnoticed by others, , the founder of the Jewish for their money. Neither of the juries that Fuhrman had concealed this glove in Defense League. The judge who presided at could agree that the Menendez brothers his sock or elsewhere and carried it to the trial declared that the jury's verdict was had committed murder. Simpson's estate, and that Fuhrman, with­ "against the overwhelming weight of the

When Nicole Brown Simpson and out knowing whether Simpson had a evidence and ... devoid of common sense Ronald Goldman were murdered, the man­ provable alibi or whether another person and logic." Jews in New York and took ner of their killings suggested a crime of could be shown guilty of the crime, had to the streets in protest. passion. At the crime scene, the police dis­ "planted" the glove. In 1992, a jury without covered a brown, extra-large Aris Isotoner Many observers were stunned by Jewish members acquitted Lemrick Light glove, model 70263. This glove's Simpson's acquittal. Many found the fail­ Nelson, Jr. of killing Yanke 1 Rosenbaum mate was found at the estate of o. J. ure to convict the Menendez brothers dis­ during a violent encounter between Simpson, the abusive former husband of turbing. Many also raised their eyebrows African-Americans and Jews. Rosenbaum Nicole Simpson. Soon after the killings, a (at least) when juries acquitted John and had identified Nelson, an African­ limousine driver kept an appointment at Lorena Bobbitt of brutalizing one another; American teenager, as his attacker, and the estate, but no one appeared to be at acquitted Damian Williams and Henry the murder weapon had been found in home. After the driver repeatedly called Watson of the most serious charges Nelson's possession. Thousands of Hasidic the house, he saw a man who looked like against them following their videotaped Jews gathered in protest. O. J. Simpson enter the darkened doorway. attack upon truck driver Reginald Denny; The worst race riot in American history Simpson then answered the buzzer, saying acquitted Dr. Kevorkian of aiding suicide began on April 29, 1992, the day that a that he overslept. DNA testing revealed after he had placed a mask over the face of California jury failed to convict any of four that stains on the glove found at Simpson's a man with a degenerative muscle and Los Angeles police officers of misconduct estate matched the blood of Nicole nerve disorder, then pumped carbon despite the fact that most of these officers Simpson, Ronald Goldman, and o. J. monoxide into the man's lungs for twenty had been videotaped kicking and beating Simpson. Also on the glove were a hair minutes; and acquitted Oliver North of all Rodney King as he lay on the ground. Los matching Nicole Simpson's and fibers charges of lying to Congress, convicting Angeles Mayor Tom Bradley voiced the matching the carpet of o. J. Simpson's him only of a single count of obstruction sentiment of many Americans when he Bronco. Nicole Simpson had purchased and of two other relatively minor crimes. said of the videotape, "We saw what we two pairs of Aris Isotoner Light gloves, Although none of these cases brought saw, and what we saw was a crime." The model 70263, just before Christmas in protesters to the streets, George Fletcher of jury's action led to two days of violence 1990; at most 200 pairs of these gloves the Columbia Law School notes that a that cost fifty-eight lives and nearly one were sold. Photo-graphs and videotapes number of jury verdicts of the past two billion dollars in property damage. showed o. J. Simpson wearing similar decades have. Earlier in our history, As Fletcher notes, protesters who take gloves at football games from shortly after Americans marched to protest convictions to the streets following jury verdicts are Christmas, 1990, through early 1994, the such as those of Sacco and Vanzetti, but the unlike other protesters. Whether violent year of the . An expert testified recent verdicts sparking outrage and protest or nonviolent, these protesters do not that he was "100 percent certain" that the have all been full or partial acquittals. These have an agenda for change; they simply

4 THE LAW SCHOOL RECORD mourn the denial of justice. Perhaps their said that she read only Cosmopolitan and accused, often on doubtful evidence, of protests signal an unreflective demand for Water Ski Magazine was accepted. Forty­ raping white women and of homicide. vengeance against any outsider accused of five percent of the 196 people summoned Recent studies of the discriminatory a member their In as victimizing of group. jurors for the 1974 trial of John Mitchell administration of the death penalty as well the embrace of "identity politics," these and Maurice Stans had attended college, as the first Rodney King verdict suggest to protesters may cheer for African­ but only one of them served on the jury. many that the jury remains an instrument Americans over white police officers, or The Simpson jury included only two of racial oppression. This year, the Florida for over gays straights, or for Jews over college graduates. It included no Repub­ Supreme Court ordered an evidentiary Muslim or fundamentalists. licans independents. Most jurors indicat­ hearing in a civil case in which a member "The new form of protest may, however, ed that they obtained their information pri­ of an all-white jury reported that some of indicate as the failure of American justice marily from "early evening 'tabloid news' his fellow jurors had compared an African­ much as or more than it does the programs." One juror reported that she American witness to a chimpanzee, used Balkanization of American civic life. The never read anything "except the horse racial epithets, and joked that the plaintiffs' indignation of the protesters usually sheet." Three-quarters answered yes to the children were probably drug dealers. appears justified. Americans take to the question, "Does the fact that O.J. Simpson In a reversal of historic roles, whites streets following criminal trials because our excelled at football make it unlikely in your have begun to fear black jurors too. The unlike west­ justice system, those of other mind that he could commit murder?" acquittal of O. J. Simpson by a predomi­ em democracies, frequently acquits people When the lead prosecutor, early in her nantly African-American jury, the appar­ whose of violent crime seems guilt obvious. closing argument, encouraged jurors to take ently jubilant response to this verdict of When a a jury reaches verdict incon­ notes, only two did. One juror appeared to many African-Americans, and the strong sistent with our predilections, we should doze off repeatedly. racial division concerning Simpson's guilt be able to say that the jurors have heard Criticism of the qualifications of jurors revealed by public opinion polls have more of the evidence we than have and is, to be sure, not new, and neither is heightened their concern. So have the have with it struggled harder, yet many of acquittal of the apparently guilty. acquittal of Lemrick Nelson, J r. of the us find it increasingly difficult to say, "We American juries often have seemed more murder of Yankel Rosenbaum and the par­ must have been wrong." Perhaps our fel­ tolerant of self-help and of violence t.han tial acquittal of Damian Williams in the low citizens cannot be trusted, or perhaps the law on the books says they should be, beating of Reginald Denny. In and lawyers, judges, television broadcast­ and "trying the victim" long has been a Washington, D.C., an African-American ers have to done something them on the standard defense strategy. Even without juror forced a hung jury in the case of an to the forum and inside it. way the assistance of psychologists who testify African-American accused of murdering a that women who hire thugs to kill abusive white aide to Senator Richard Shelby; the Juries all of represent us, but jury husbands suffer from "learned helpless­ jury's foreman had earlier sent a note to selection in publicized cases currently seems ness," juries have recognized that some the judge accusing this juror of racism and tilted toward the less informed members of people just need killing more than others. of refusing to discuss the evidence. In the community. For example, two-thirds of American juries have been especially Smith County, Texas, African-American the prospective jurors in the case of Oliver tolerant of violence when victims were jurors blocked the conviction of an North were dismissed because they had black and defendants white. Skin color African-American accused of sexually viewed of part North's Congressional testi­ sometimes has been, for jurors, a good assaulting a white woman and then cited on television or had read many about it. indicator of who needed killing. In 1955, as a reason the earlier failure of a grand Among those who remained eligible were an all-white Mississippi jury took less than jury to indict a white police officer for the jury's eventual forewoman, who report­ an hour to acquit the defendants accused killing a bedridden African-American ed that she never looked at the news of killing Emmett Till, a l-l-vear-old widow during a botched drug raid. because "it's depressing," another member African-American visitor from Chicago That enough African-Americans to of the who that he read a jury panel said only who had accepted dare and spoken to a block conviction may be playing "payback" comics one and the horoscope, who white woman. One juror explained, "If we or otherwise may be unwilling to convict recalled that North was "a head of soldiers hadn't stopped to drink pop, it wouldn't African-Americans of crimes of violence or another something like that," and still have taken that lang." (The acquitted against whites is terrifying to many. Whites who declared that he "didn't understand defendants later told a journalist that they have begun to experience a glimmer of the whatever I heard about this case." "had" to kill Till when he refused to beg fear of American justice that African­ The jurors who tried Imelda Marcos for mercy.) Southern juries in the 1960s Americans and other members of minority included one never her who had heard of repeatedly failed to convict defendants races have experienced throughout our his­ and who could not say whether she was a accused on strong evidence of killing civil tory. Of course most African-American and woman or a man-and another who had rights activists (notably, Medgar Evers, white jurors seriously seek to do justice, and not heard of Ferdinand Marcos either. A Viola Liuzzo, and Lemuel Penn). At the multi-racial juries often reach unanimous man who said that the media had made same time, all-white juries voted not only verdicts in cases of interracial crime. "Most" him as think of the Menendez brothers in the Scottsboro prosecution but also in and "often" may not inspire confidence, wealthy, spoiled kids was struck from the many others to impose the death penalty however. In a nation divided by racial senti­ Menendez jury for cause. A woman who on African-Americans who had been ment and tolerant of violence, trial by jury

Volume 41, Fall 1995 5 may appear to be a procedure well designed for themselves through a broadcast that her client, he or she typically works to to promote lawlessness and self-destruction. could only harm their client. On reflec­ demonize someone else. This lawyer may The perception that racism on juries tion, however, I decided that the lawyers suggest that Fuhrman cannot be distin­ now cuts both ways is one reason why the were better strategists than I. They realized guished from the Fuhrer, or counsel may mistrust of juries, particularly on the part that the more the Simpson case came to be portray a murdered and therefore voiceless of whites, may be greater than in the past. seen as a television drama, the better their father as an unalloyed monster. As on tele­ More importantly, the American jury now client's chance of escaping punishment. vision, someone must be cast as the "other" suffers from some of the problems that "Cinematization" of the case might make and someone else as the real victim. plague other democratic institutions. more plausible the scenarios that talk-radio callers, defense attorneys, and jurors would The American jury trial needs reform. Although in most governmental invent: O. J. Simpson's son, whose DNA The following measures would help: matters, the framers of the Constitution is much like his father's, killed Nicole 1) Eliminate or greatly restrict the abili­ preferred representative to direct democ­ Simpson and Ronald Goldman. Or ty of lawyers to challenge prospective jurors racy, they trusted citizens, not their elect­ Colombian drug dealers with very bad eye­ peremptorily. The frequent exercise of ed representatives, to resolve civil and sight committed the crimes to punish Faye peremptory challenges on the basis of group criminal disputes. Lawyers, however, now Resnick for not paying her debts. Or racist stereotypes is demeaning to the jurors who hire experts to help them maneuver jurors detectives planted bloody evidence to pun­ are dismissed, and peremptory challenges in the same ways that candidates for pub­ ish O. J. Simpson for marrying a white facilitate lawyers' efforts to stack juries. lic office hire experts to tell them how to woman. Or the real murderer is the shoe These challenges also ensure that, contrary push voters' hot buttons. When clients salesman who testified that O. J. Simpson to our rhetoric, juries rarely are composed have enough money, these lawyers retain always wears size 12 shoes; it is evident of a defendant's peers and rarely reflect a consultants to survey community attitudes that this witness lied, for no one always cross-section of the community. and to determine which demographic wears the same size shoe as he shifts from 2) Eliminate or greatly restrict the use characteristics indicate favorable jurors. brand to brand. of lengthy jury questionnaires and voir They also hire field investigators to inter­ A basic rule of screenwriting is never dire examinations. Personal questions that view neighbors or visit courthouse to write "on the nose." A scene must not no lawyer would dare ask a judge are also restrooms to see what reading materials be quite what it seems or what the char­ insulting and invasive of privacy when prospective jurors are carrying. With the acters say it is, for the writer must leave directed to prospective jurors. help of psychologists, they draft endless room for the imaginative participation of 3) Eliminate all professional exemp­ pages of complex, multiple-part questions the audience. Jurors, like talk-radio tions from jury service. Doctors, firefight­ probing attitudes, histories, beliefs, mem­ callers, love to play detective. As Judith ers, morticians, and lawyers should be berships, reading habits, viewing habits, Gardiner has noted, children now spend expected to serve. and more. Judges then order prospective more hours in front of television sets than 4) Enforce jury summonses. In some jurors to answer these privacy-invading in contact with their parents, and as their jurisdictions, as many as two-thirds of all questions upon penalty of perjury. The substantive encounters with other human jury notices are disregarded, and despite lawyers conduct lengthy voir dire exami­ beings grow less frequent, some of them the warnings printed on the notices, noth­ nations designed partly to determine jury find it increasingly difficult to distinguish" ing happens. qualifications but mostly to indoctrinate media representations from reality. 5) Do not disqualify prospective jurors jurors. They sometimes hire shadow juries A view of the world through the televi­ who have seen news accounts of a case to observe trials and debrief the lawyers at sion set offers blameless victims, uncompli­ unless they have been exposed to inadmis­ the end of each court day. cated villains, capable police investigators, sible evidence or appear unwilling to Television may make it easier for trial and perfect proof-images that make it easy judge the case on the basis of the evidence lawyers with seemingly hopeless cases to to be tough on crime in the voting booth admitted in court. confound fantasy and reality-something and difficult to be tough on crime in the 6) Do not sequester juries or order that the lawyers for O. J. Simpson appar­ jury room. As Stephen Schulhofer has changes of venue simply because a case has ently realized from the outset. As prosecu­ noted, our cultural dehumanization of been the subject of very intense publicity. tors at the preliminary hearing in the offenders provides an easy opening for 7) Reduce the influence of professional Simpson case presented a wealth of defense attorneys who can show that their jury consultants-perhaps by making their incriminating evidence, some of which clients do not fit the jury's image of the reports available to both sides. If a lawyer the defendant's attorneys were seeking to generic Pusher-Mobster-Mugger. A youth could not gain any partisan advantage by suppress, I wondered why the defendant's who has killed his parents with a shotgun hiring a jury consulting firm, he or she prob­ lawyers had not sought to have the televi­ may sob in apparent anguish as he recounts ably would not bother to pay the $10,000 to sion cameras removed. Broadcasting the the abuse allegedly suffered at his father's $250,000 per case that these firms charge. preliminary hearing would ensure wide­ hands, and a person accused on strong evi­ 8) Offer jurors instructions on the law spread knowledge of the damaging evi­ dence of stabbing and nearly decapitating at the outset of the trial. As Judge William dence even if the judge suppressed it. his ex-wife may be a charming sports hero Schwarzer has observed, the current judi­ My first guess was that the lawyers whom all of us thought we knew. As cial practice resembles telling jurors to were just grandstanding-seeking publicity defense counsel seeks to humanize his or watch a baseball game and determine who

6 THE LAW SCHOOL RECORD won without telling them the rules until demonstrated that what people have heard appointed to represent indigent defendants the game is over. about Rambo trial lawyers is true, as in New York City submit no vouchers for Redraft standard instructions to 9) jury Johnnie Cochran and Marcia Clark played investigative expenses in seventy-three enhance their comprehensibility, and per­ games of legal "gotcha" (Did an inade­ percent of their homicide cases (and mit jurors to take written copies of the quately coached witness mention his belief eighty-eight percent of their other felony court's instructions with them to the jury that the defendant had an alibi? Why, that cases). These lawyers file no legal motions room. Allow judges to offer further instruc­ means that the defendant's unsworn state­ in seventy-five percent of their homicide tions without fear of reversal for imprecise ment should be admitted so that he can cases (and ninety percent of their other statements of the law unless these state­ avoid cross-examination), as ten of the ini­ felony cases). Defendants charged with ments seem very likely to prove prejudicial. tially impaneled jurors and alternates were felonies frequently are given only fifteen 10) In a lengthy trial, permit and discharged for their sins (mostly avarice seconds to decide whether to accept the encourage lawyers to present mini-summa­ and dishonesty), and as witnesses were plea agreements offered by calendar judges, tions and arguments as the trial proceeds. never permitted to explain their answers. and when a judge sees a defendant wince 11) Permit and encourage jurors to take The legal profession has formulated its as his lawyer describes the offer, the judge notes. A minority of courts still forbid response to people who see in the may say, "[The defendant] doesn't appear even in cases a note-taking in which the Simpson trial tale of legalism and obfus­ to like it. Tell him, Mr. [defense counsel], . lawyers must carry personal computers to cation: This trial was atypical. It tells us .. that it is going to go up next time, six to track of the keep evidence. Other courts, nothing about the American justice sys­ twelve [years]. McBride is going to get four without formally prohibiting note-taking, tem. Besides, things would have been dif­ to eight if he is smart, six to twelve if he is fail to supply paper and pencils or to advise ferent if Judge Ito simply had said "pro­ dumb." Would a champion of American jurors that they are welcome to take notes. ceed" more often or if the trial had not criminal justice prefer that we forget O. J. and 12) Permit encourage jurors to ask been televised. Simpson and evaluate our legal system on questions of witnesses after submitting In fact, the Simpson trial was atypical, the basis of a typical case? these questions in writing for review by and it tells us a great deal about the The taxpayers spent more than $S mil­ the court and counsel. American legal system. It shows how read­ lion on the Simpson trial, and the criminal As helpful as these measures would be, ily this system can be used, confused, and justice system's taste for champagne and all of them together cannot fix what is fun­ abused when skillful lawyers have the caviar in the few cases that reach trial damentally wrong with the American jury resources to press it hard. It shows a sys­ seems to be causing its starvation in the trial. The vices of this institution, which tem in which, in Justice Hugo Black's many cases that do not. Moreover, to judge regularly come to you live from Los Angeles, phrase, the kind of trial a man gets from the Simpson trial, even the caviar cannot be corrected simply by improving depends upon the amount of money he does not taste good. The Simpson trial fea­ the care and handling of jurors. Repairing has. It shows a system that can survive tured a "dream team" of defense attorneys our defective evidentiary rules and trial pro­ only because very few litigants have the that few defendants could have afforded, cedures is much more important. resources to invoke the procedures that it the most talented team of prosecutors that The opponents of televising trials once offers on paper. It shows a system with a SSO-lawyer office could field, the finest that viewers watch argued would only lurid serious structural flaws: Apply, if you like, expert witnesses that money could buy, cases such as those in which football a discount because the judge did not and a specially assigned and (until the heroes were accused of killing their ex­ importune the lawyers more often or trial) highly respected trial judge; and still wives. The proponents insisted that broad­ because the trial was televised; the over­ the trial mortified even lawyers. casts would educate the public about the proceduralization of this system remains. During a recent discussion of the workings of the third branch of govern­ Because our legal system cannot deliv­ Simpson case, someone described what the ment. Both were right. Viewers might er on its extravagant promises (that is, case meant to her elderly father-that he have tuned-in the Simpson trial for enter­ cannot afford to give O. J. Simpson-style could no longer believe in something in tainment, but many were appropriately trials to anyone except celebrity defen­ which he had believed all his life, the appalled as Judge Ito forced lawyers end­ dants whose cases are front-page news), American justice system. The Simpson trial lessly to "rephrase the question" for reasons lawyers and judges have effectively is likely to be remembered mostly as a flam­ that no one could understand, as he repealed the right to jury trial. Ninety-two boyant media event, but it conceivably admonished jurors twice a day to perform percent of the defendants convicted of could prove to be something more. This the astonishing task of forming no opin­ felonies in state courts plead guilty trial could mark a turning point in our legal ions while they heard the evidence (they because prosecutors and judges tell them history, the moment when the need for disobeyed), as he excluded obviously sig­ in effect, "You have a right to jury trial, America to reinvent a fair and workable nificant evidence, as lawyers on both sides and we have the right to sentence you to trial procedure became too obvious to deny. forced witnesses to repeat their testimony fifty years if you exercise it." interminably (How long does it take some­ Albert W. Alschuler is the Wilson­ one to say that he heard a dog barking at The quality of justice in American Dickinson Professor at the Law School. A 10:lS p.m.? In an American courtroom, criminal cases is suggested by a recent slightly different version of this article will the answer seems to be about two hours), study by Michael McConville and Chester appear in the Winter 1996 issue of The as Christopher Darden and F. Lee Bailey Mirsky, which reported that the lawyers Public Interest (#122).

Volume 41, Fall 1995 7