PERSPECTIVES ON THE SIMPSON CASE : Even in the most sensational L.A. cases, jurors have shown they can decide on evidence admitted in court. : Pretrial Publicity Isn’t a Hindrance

The dismissal of the grand jury that was considering an indictment of O.J. Simpson has fueled concern as to whether he can receive a fair trial. Countless commentators have wondered whether it will be possible to find jurors who have not heard of the crime and the media’s stories about the rumored evidence against Simpson. But this worry fundamentally misconceives what is required for a fair trial before an impartial jury. The Constitution does not dictate that prospective jurors be unfamiliar with O.J. Simpson, the murders or even the purported evidence. Rather, what is required is careful selection to find 12 individuals who can be trusted to decide solely based on the evidence presented in the courtroom.

In recent years, Los Angeles has had far more than its share of highly publicized trials. In each instance, there were widely expressed concerns as to whether the defendant could receive a fair trial and avoid a jury that would convict based on the pretrial publicity. Among the cases that drew these speculations were the McMartin Preschool trials, the two trials of the police officers accused of beating Rodney King and the prosecution of Damian Williams and Henry Watson for beating Reginald Denny and others. In each instance, the press was saturated with stories and rumored evidence, and in the beating cases, videotapes of the crimes. Yet the McMartin case resulted in acquittals. The first trial of the police officers for beating King ended in an acquittal of all four officers and the second trial resulted in two being acquitted. Damian Williams and Henry Watson were acquitted of the most serious charges against them.

These experiences, and a long history of juries trying highly publicized cases, show that it is possible to find individuals who will decide cases based on the evidence presented in court. Studies confirm what trial lawyers know: Juries tend to be very conscientious, take their responsibilities very seriously and work hard to follow the judge’s instructions. As a jury sits in court and hears the days and weeks of evidence, the trial proceedings, and not the pretrial media stories, dominate its thoughts and perceptions.

Thus, the criticism of the media for reporting leaked evidence and thereby preventing O.J. Simpson from getting a fair trial is misguided. In fact, the media’s coverage is not only an exercise of its First Amendment freedoms; it also can be beneficial. If there had been no leaks of any evidence against Simpson, there would be loud cries that he was being persecuted and perhaps charges of racism. Even with the rumored evidence linking him to a horrible crime, there is substantial sympathy expressed for him. The city is well-served by knowing that O.J. Simpson is now in jail because there is evidence against him that justified his arrest and his being held without bail.

Nor are the lawyers on either side to be criticized for using the media to present their views. The defense certainly has the right to publicly question the strength of the prosecution’s case and to try and build sympathy for Simpson. But so does the prosecution have the right to remind the public that two people were brutally murdered and that there is evidence linking Simpson to the crime.

At the preliminary hearing that is scheduled to begin on Thursday, everyone will learn the evidence that the police and the prosecutors have amassed against Simpson. Even if there had not yet been a single leak of evidence, the preliminary hearing ensures that everyone will know prior to trial the essence of the case against Simpson. All of the rumors and leaks will be irrelevant as a judge decides whether there is sufficient evidence to try Simpson for the murders. If there is a trial, there is every reason to believe that it will be possible to find 12 individuals who will decide based on the facts presented in court. That is the fair trial that the Constitution guarantees Simpson and all criminal defendants.