The Jury System Is Also on Trial Amid the Spectacle

The day before the opening of O.J. Simpson’s preliminary hearing, I had a long talk with Los Angeles County Dist. Atty. Gil Garcetti.

The D.A. isn’t playing a visible role in the daily courtroom drama and has kept away from TV after a flurry of controversial early appearances. In fact, Garcetti told me he wouldn’t discuss the Simpson prosecution. But I couldn’t forget it--and I doubt he could either--as we explored the main topic of our conversation, the vagaries of jurors. For it is jurors who, if there is a trial, will determine Simpson’s fate.

The case is also likely to influence Garcetti’s own future. The last two D.A.s, Robert Philibosian and Ira Reiner, were defeated when prosecutors fell short of public expectations in big cases. Having overwhelmed Reiner in the 1992 election, Garcetti knows how such failures can become major campaign issues.

This has been especially true in the two decades when crime has become a dominant issue in California politics. In this state’s highly charged atmosphere, when public attention is fixed on crime, the outcome of courtroom proceedings has often resulted in major changes in the law, as well as making or breaking political careers.

Most people never gave the California State Supreme Court a second thought until Rose Elizabeth Bird became chief justice and presided over the overturning of 64 of 68 death sentences brought before her court.

That led to the recall of Bird and two other liberal justices, Joseph R. Grodin and Cruz Reynoso. UC Hastings College of Law Prof. Evan Lee, whom I spoke to after my conversation with Garcetti, said “the rising tide of anger” that kicked the justices off the bench also helped build voter support for Proposition 115, a 1990 measure that greatly strengthened the hand of the prosecution.

The same sort of anger prompted voters to approve another pro-prosecution measure, the Victims Bill of Rights, several years before. And remember when a San Francisco jury convicted Dan White of manslaughter, rather than first-degree murder, for killing Mayor George Moscone? White used the “Twinkie defense,” claiming his addiction to junk food worsened his depression. This defense, called diminished capacity, was quickly limited by state law.

“It’s a combination of perceptions that crime is getting worse and criminal defendants are being treated more leniently,” Lee told me. “Whether that is true is questionable, but the perception is there. Perceptions are all that matter in a democracy. That is our system. People vote on the basis of perceptions.”

*

As I talked to Garcetti about juries, I thought he might be tapping into a similar perception, that juries have gone awry, especially in high-profile cases. You could understand why he might feel that way. The Menendez brothers’ first murder trials ended in hung juries. And the jury that heard the trial of the men accused of beating trucker Reginald Denny returned verdicts much lighter than those sought by prosecutors. The D.A.’s office wins most of the time, but these high-profile cases add up to big losses in the minds of voters.

“Are we really getting a representative cross-section of our community?” Garcetti asked. “When I hear from CEOs that they are cutting back on the amount of time they will pay their employees to serve on juries or to eliminate it entirely, it is very frightening.

“So who are the people who are willing to come forward?” he asked. “Are they people who are bright, and who want to participate and give something to the community, do what is right?

“Perhaps (some) have a particular cause. . . . Do you have jurors in high-profile cases who say: ‘Here is a chance for my day in the sun? I know I will be interviewed, I will be on national television when this is over.’ Do you have people who are coming in with personal or political agendas, who will find it impossible to accept the obligations and responsibilities as a juror to truly put aside their personal feelings and biases and accept the law, accept those responsibilities that are placed on them?”

Garcetti also wondered about the spin of these trials, how the opinions of jurors and potential jurors are shaped by the news and talk shows.

“The pervasiveness of the media is a factor that has been dramatically underestimated,” he said. “In terms of the radio talk shows and your TV talk shows like ‘Oprah,’ you have all these rationalizations or excuses as to why we should be forgiven for every wrong act, criminal act or not. We have been willing to accept to a large degree that any particular conduct can be excused and that we . . . are not responsible.”

I asked if he thought that was the case in the Menendez trials. “Without a doubt,” he said. “We have the very difficult burden of trying to convince each juror there is such a thing as individual responsibility. Are we getting jurors who are influenced by some of those shows?”

*

Garcetti had some solutions. He is trying to persuade corporate executives to free employees for long jury service. Garcetti is also working with the judges to make their instructions to the jurors easier to understand.

His most controversial suggestion is to study whether California should adopt less-than-unanimous jury verdicts in all criminal cases, except the penalty phase of death penalty cases. Several states have adopted the practice.

Local judges have told Garcetti they don’t like the idea. Garcetti himself once opposed it. “I won’t say outright I’m in favor, but I am more inclined than I was. It’s something we should explore.”

Whether the idea takes off could depend on the outcome of the Simpson case. That’s why it is more than just another tragedy turned into a tabloid spectacle.