Of Course Juries Are Confused

It may be too early to write the history of the early 1990s, but I wouldn’t be surprised if this time comes to be known as the “The Era of Confounding Juries.”

Last month, two Los Angeles juries could not agree on what crimes Erik and Lyle Menendez committed--first-degree murder? second degree? voluntary or involuntary manslaughter?--when they killed their parents. The defense contended that a long history of abuse by the parents led to the shotgun killings, while prosecutors contended that the brothers acted out of hatred and greed.

And a Virginia jury deemed Lorena Bobbitt, who cut off her husband’s penis, not guilty of any crime by reason of temporary insanity because of years of abuse. What’s more, another jury in an earlier trial found her husband not guilty of raping her on the night she grabbed the knife.

These are two cases in which the victimization of the defendants was presented as a defense for extremely violent behavior. And although I think most people agree that such issues must be considered in the courtroom, the notion that juries have lately extended too much sympathy toward defendants is under discussion almost anywhere you go: on talk radio, on newspaper Op-Ed pages, at dinner parties.

We’re confused--about the jury process, about family violence, about how to weigh claims of abuse against crimes committed.

So why shouldn’t juries be confused as well?

They are, after all, only a reflection of society.

It’s only been in recent years that battered women and children have been able to successfully defend themselves against murder raps by showing that killing an abuser--usually a husband or father--was perceived as the only way to avoid sure death.

We know so much more about abuse than we used to, so much more about the cycle of violence, so much more about why the abused take the law into their own hands to end it. These days, you might think only an ignoramus would ask why a battered woman doesn’t just leave .

But the fact is, you hear the question asked all the time.

And we wonder why juries are mixed up?

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In the long run, there may be a limit to society’s compassion for victims who attack their abusers.

This worries Denver psychologist Lenore Walker, a pioneer of the Battered Woman Syndrome defense, who is often called to testify on behalf of women who kill their abusive partners.

“There is part of me that is very pleased that the issue of abuse against women and children is now being understood better by the general public because of the media’s fascination with these cases,” she said. “On the other hand, I am worried about backlash because many people say, ‘Well, victims are getting away with it.’ ”

Letting victims off the hook, she says, has never been the intent of introducing abuse as a mitigating factor in a violent crime.

“My intention when I introduce this (kind of) testimony is to allow the context within which a criminal act was committed to be fully understood by a jury--and then the jury makes up its mind,” Walker said. “I have always felt it was not justice to only give part of the story. For women and children, the context is something the legal system has often discounted and invalidated.

“In our country, one of the things we like to do is personalize gore and violence,” she said. “We learn about abuse through people’s tales. That is, of course, what happened in the Menendez and the Bobbitt cases, and I predict it is going to happen in Tonya Harding’s case.”

Walker, who has studied hundreds of battered women, thinks ice skater Tonya Harding, whose domestic disputes have been chronicled in police reports, could easily fit the profile of a battered woman.

“I can conceptualize her as a woman who is being battered by her husband and (the attack on Kerrigan) was his attempt (to control Harding). It was not just Kerrigan’s leg being smashed. I can just hear a batterer saying to Tonya Harding, ‘If you don’t do what I say I will smash your legs or your knees.’ Maybe it was a warning to her.”

This is either an excellent insight or a ridiculous leap. Such is the burden we lay at the feet of juries.

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Twenty years ago, I was a freshman at the University of California when a young newspaper heiress who lived a few blocks away was kidnaped by terrorists. The whole episode seemed unreal--and until a deadly shootout in Los Angeles--the terrorists like a dangerous joke.

The 19-year-old kidnaping victim, christened “Tania” by her captors, was blindfolded, kept in a closet for almost two months and then was dramatically photographed in guerrilla garb, toting a gun during the robbery of a San Francisco bank.

Last week, as we spoke about the Menendez case at lunch, a friend asked if I didn’t find it amazing that Patty Hearst was convicted and sentenced to seven years in prison. Hearst’s claim that she was brainwashed by the Symbionese Liberation Army didn’t sway her jury, although President Jimmy Carter commuted the rest of her sentence after she served nearly two years.

“Why should I feel guilty?” she told an interviewer in 1988. “They kidnaped me.”

It is hard to imagine a jury convicting Hearst of anything today.

And easy to imagine a confounded public’s distress.