Lawyers for the four Los Angeles police officers accused of violating Rodney G. King’s civil rights have one central question they would like to ask anyone called to serve on the jury: Would you hesitate to find the defendants not guilty if you knew your vote might trigger another riot?
Under normal circumstances, the question would be absurdly inappropriate. But given the history of this case, it strikes many observers as not only apt but unavoidable.
“Is it going to give them pause? Of course it is,” said John Gilleland, director of research for the Chicago-based Jury Analysts Group. “The question then becomes: Can they put that consideration aside and be fair?”
With jury selection scheduled to begin this week, lawyers on both sides are wrestling with one of the most vexing problems ever confronted in a courtroom: how to pick a jury in the shadow of the riots. Most observers say a fair and impartial jury can be found, but they agree that it will not be easy.
“A lot of cases have had a lot of publicity,” said Ira Salzman, who represents Sgt. Stacey C. Koon. “But this case has a riot. What can compare with that?”
“There’s never been a situation like this,” said Harland W. Braun, who represents Officer Theodore J. Briseno. “What courage it will take for this jury to do its job.”
And what scant reward jurors will receive for their efforts.
If, as prosecutors have suggested, U.S. District Judge John G. Davies models an order after one used during the trial of fired national security aide Oliver L. North, the 12 jurors--accompanied by several alternates--will be sequestered under such strict conditions that they will not be allowed to watch television without a chaperon. Their newspapers will be censored and their visitors screened. They will not be able to meet privately with anyone, including their spouses or other family members during the course of the trial, which could last two months.
Not surprisingly, there has not exactly been a stampede to serve.
When the jury commissioner in Los Angeles federal court recently notified about 6,000 Southland residents that they had been picked as prospective jurors for “an important trial” scheduled to begin Feb. 3, only 380 said they would be available.
Who are these 380 people? Are they good Samaritans, willing to brave any possible backlash to do their civic duty? Are they activists, armed with an agenda and motivated by a desire to see their brand of justice done? Or are they people who have no idea what awaits them when they report for duty Wednesday?
Lawyers and jury experts say it is impossible to guess. What is clear is that almost no one among those 380 is likely to be ignorant of the defendants or of the riots that swept Los Angeles last spring.
In September, a librarian in the U.S. attorney’s office in Los Angeles ran a computerized search of newspaper articles about the case and turned up 14,000 in which King was mentioned, according to a declaration filed last year. A similar search last week by The Times turned up another 1,745 newspaper and magazine articles since September--more articles than have mentioned Gov. Pete Wilson and almost twice as many as have included references to U.S. Sen. Dianne Feinstein.
Can anyone have missed all of that? Few think so.
“It is unlikely that any potential jurors are unexposed to the publicity surrounding the beating of Rodney King and related events,” prosecutors said in a recent motion.
The task, then, is not to find jurors who have not heard of the case, but to weed out ones whose feelings are so strong that they cannot impartially consider the facts. That job will fall to four defense lawyers--Salzman, Braun, Michael P. Stone and Paul R. DePasquale--and two lead prosecutors, Steven D. Clymer and Barry F. Kowalski. They will use a combination of extensive questionnaires and carefully crafted follow-up questions, posed by themselves or the judge.
Their quest: to find a panel of citizens who can set aside their feelings about King, his videotaped beating at the hands of police and the riots that ravaged Los Angeles after these four defendants were found not guilty in state court.
“The dangerous juror is someone who’s lying,” Gilleland said. “If the judge is careful and the right questions are asked, you will find those people. But it’s a delicate process.”
The best safeguard against biased jurors, experts said, is aggressive and meticulous questioning. Sometimes that means asking the same question in several ways and analyzing the answers for hints of deception.
Take the prospective juror who admits that last year’s riots would cause him or her to hesitate before acquitting the defendants. That alone would not necessarily disqualify the juror, experts said, but the judge and lawyers would want to know whether that juror could ignore his or her feelings and come to a verdict based solely on the evidence.
To help answer that question, other attitudes will be probed. Jurors can expect to be questioned about their feelings toward police; they may be asked whether they have been arrested, whether they are afraid of police officers and whether they believe officers make mistakes.
That last was raised with prospective jurors in the state trial, and it is especially controversial this time because the defendants could argue that the beating of King was unreasonable but not a violation of his rights if it was merely an angry reaction or a mistake, not an intentional act by the officers.
The touchiest aspect of jury selection will probably be the question of race. Although prosecutors are not obliged to prove that the officers beat King because he is black, the case is so laden with racial overtones that there will be no avoiding the subject during jury questioning.
As a result, prospective jurors can expect to face a battery of queries intended to ferret out their feelings about race relations. They could be asked whether they have reservations about interracial marriage or whether they consider individuals of some races to be more intelligent, trustworthy or law-abiding than others.
Those are hard questions even for well-meaning people to answer, as prejudice is often deep-rooted, experts say. Lawyers or the judge might be able to draw jurors out, but there are potential pitfalls in conducting the inquiry.
Prosecutors obviously cannot afford to accept a juror who secretly believes that King deserved to be beaten because he is black. But they must ask their questions in a way that does not antagonize any juror who is selected.
One solution is to have Judge Davies ask the questions, which is the common method of probing jurors in federal court. Prosecutors favor that approach and said in a recent motion that it would save time and would prevent defense lawyers from using the jury questioning process to “become friendly with potential jurors.”
However, jury consultants and other legal experts say that in a case so freighted with preconceptions, the defendants should be allowed to ask their own tough questions.
“The attorneys should have the opportunity to fully represent their clients and be very dogged in questioning jurors,” said David Graeven, who heads Trial Behavior Consulting in San Francisco. “I think they’re entitled to that.”
Regardless of who poses the questions, defense lawyers say they will focus intently on any prospective juror who is African-American--not, they stress, out of bias but out of legal necessity.
During last year’s trial of the four officers in Simi Valley, every prospective black juror who was questioned said he or she felt too strongly about the case to be impartial. Because of that, every black jury candidate was excused.
The continuing tension around the case, combined with its deep resonance in the African-American community, raises a possibility that is disturbing even to the lawyers defending the officers: The panel in this case, like the last one, may end up without black jurors.
“Let’s say you have an African-American juror from South-Central,” said defense lawyer Braun. “I want to ask: ‘How are you going to go back to Adams and Crenshaw and tell your neighbors that you voted not guilty in this case? Aren’t you going to hesitate before you do that?’ ”
If the answer is yes, that juror would have to be excused, defense lawyers say.
Impaneling an all-white jury for the federal trial, virtually everyone agrees, would greatly increase the chances of violence if the officers are acquitted again.
“The idea of an all-white jury on this case scares the hell out of me,” Braun said. “As a member of society, I want a mixed jury. But I have to be a realist too. People are not computers.”
In all discussions regarding jury selection, Davies has stressed the importance of protecting jurors from harm. Jury experts commend that decision, noting that anything that threatens jurors’ safety could jeopardize a fair trial.
“If you can’t protect jurors, we have no jury system,” said Richard Roth, who heads the Jury Research Group of Arthur Andersen and Co. in New York. “They are the foundation of this process.”
Davies’ response has been to proceed with nearly all aspects of jury selection in secret. He said he does not intend to release the jurors’ completed questionnaires, even though they will not have the jurors’ names attached. He has also declined to release the blank questionnaires and has indicated that he may conduct oral questioning in a closed courtroom.
But some community leaders who are watching the trial worry about the ramifications of that tactic.
If Davies sticks to his position, it means that Koon and Officers Briseno, Laurence M. Powell and Timothy E. Wind--all of whom are white--will be the only audience for the jury selection in a case that many view as a litmus test for the justice system’s treatment of blacks. The jury will be picked by two white prosecutors and four white defense lawyers, and a white judge will preside.
Imagine the outcry, some observers warn, if the doors to the courtroom swing open a few weeks from now and the public gets its first look at an all-white jury picked by six white men.
“That’s not going to go over very well,” said Angela Oh, a criminal defense lawyer in Los Angeles who is active in community affairs. “When the stories hit that this is going to go on behind closed doors, you’re going to hear reaction from the community.”
State Sen. Diane Watson, whose district includes many of the riot-ravaged areas of South-Central Los Angeles, agreed.
“The case is so important, and we are looking for justice,” she said. “Because of that, this entire process needs to be public. We can’t conduct this trial in secret.”
The prospect also is troubling to the defense lawyers. “It concerns me greatly,” said DePasquale, who represents Wind. “As I have learned . . . the appearance of justice is as important--even, absurdly, more important--than actual justice.”
While some aspects of the jury selection process could be controversial, on other points there is little disagreement. Davies has said he expects to let the jurors remain anonymous and will have them sequestered throughout the trial. Neither of those suggestions has much opposition.
Both steps will help protect the safety of jurors. They will also make the experience grueling on those who are selected to serve.
“The average person is not under this type of scrutiny,” Roth said. “Chances are that most people never are under this type of scrutiny during their entire lives.”
In addition, Roth said, isolation from friends and family, combined with the violent nature of the charges in the case and the intense public interest in its outcome, can make serving as a juror enormously stressful.
“There’s no question that two months of living under those conditions is going to be very difficult,” he said, adding that in such stressful cases, jurors sometimes suffer from physical or emotional breakdowns--anything from the flu to hysteria.
But Roth, like most longtime analysts of the jury system, remains confident in the process. He and others firmly believe that 12 citizens, chosen after a painstaking process intended to weed out those with preconceived ideas about a case, can be counted upon to consider the facts of even the most difficult trial and return a just verdict.
“When the average citizen becomes a juror, they do their best to be fair,” Roth said. “They bend over backward, which is what we ask of them.”
Keeping Watch on a Jury
U.S. District Judge John G. Davies has not released the order governing how jurors in the Rodney G. King civil rights trial will go about their business. But prosecutors have asked Davies to consider modeling his order on a 1989 order used in the trial of fired national security aide Oliver L. North.
In that case:
Jurors were given free breakfast, lunch and dinner.
During the evenings, jurors were allowed “some type of modest refreshments, including but not limited to coffee, tea, milk or soft drinks and something to accompany those drinks.”
Jurors could make and receive telephone calls, but could only speak with immediate family members.
Jurors were allowed to read newspapers and magazines, but only after marshals had clipped out any stories relating to the case.
Jurors were allowed to watch television or listen to the radio but marshals were ordered to monitor the viewing and listening and to turn off broadcasts if necessary.
Visits from family members were permitted, but only in groups and only with a marshal present. That ruled out conjugal visits.
Mail for jurors was either held or was opened and edited by marshals.
Jurors were allowed to visit their houses of worship when they were not deliberating.