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Trying a Case in the Court of Public Opinion

<i> Suzanne Garment, a contributing editor to Opinion, is a resident scholar at the American Enterprise Institute. She is the author of "Scandal: The Culture of Mistrust in American Politics" (Times Books)</i>

When O.J. Simpson’s scientific experts decided not to participate in the prosecution’s DNA testing, they held a press conference to announce this. When they nonetheless showed up at the laboratory the next day to observe the division of the blood samples, they explained that to the press, too. Such behavior is what we have come to expect from the publicity-minded Simpson defense team. But when the prosecution or defense creates this kind of hoopla outside a criminal-case courtroom, does it really affect the verdict?

Let’s put it this way: It’s like the Jewish joke about the man who’s on his death bed when his mother comes to visit and says, “What you need is a bowl of chicken soup.” So the man croaks to her, “Chicken soup? How could that possibly help?” “Well,” she says, a little miffed, “it couldn’t hurt.”

In any single case, no one really knows whether outside publicity will sway the population and the jury. But Simpson’s is a capital case. The stakes are as high as they can be. The defendant has enough money so he can spend in proportion to the size of the danger. And in his situation there’s a chance the publicity will do him some good.

The noise surrounding this trial is hardly unprecedented in our criminal history. For example, it by no means exceeds the public excitement that attended the 1859 murder trial of Rep. Dan Sickles, who emerged from his Washington townhouse one afternoon and shot his wife’s lover dead. The newspapers were beside themselves with anticipation. They spread rumors that his wife was pregnant with her lover’s baby and that this was the reason for the murder. They speculated, alternatively, that Sickles had decided to act because he was about to be humiliated by public revelation of the affair.

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So these things are perennial. But there is no field of endeavor that does not offer room for improvement. Human beings have congregated in the marketplace since time immemorial, but only 20th-Century America gave birth to the shopping mall. Eye-popping criminal cases have always produced lurid public curiosity and attempts to manipulate it, but not until the O.J. Simpson trial did defense attorneys offer the world an 800 number to phone in support for the defendant.

There have been advances on the prosecution side as well. For instance, beginning in the 1960s, adventurous prosecutors began trying to focus public attention on criminal cases that did not feature violence or organized crime. Instead, these cases involved what had once seemed like relatively arcane white-collar crimes, in fields such as tax law.

The trend greatly accelerated in the 1980s, when Manhattan’s U.S. attorney--Rudolph W. Giuliani, now mayor of New York--set the style. In sight of invited TV cameras, he had an alleged Wall Street inside trader arrested and taken away in handcuffs. The Giuliani office worked with the press, giving journalists a close look at the inner workings of big cases.

Yet the effect of the increased publicity on particular cases was not clear. The prosecution had a large advantage, since people are far readier to envision a guilty businessman than an innocent one. The publicity certainly added to the pressure on defendants to plead guilty. But in the courtroom, there were big losses as well as big wins.

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In criminal cases where one side does not have such a huge edge over the other, it is even harder to predict if a publicity campaign will affect the outcome.

The chief reason for uncertainty is that once a criminal trial has begun, it takes on a life of its own. Evidence can look very different in a courtroom from the way it appears on the nightly news, as the first Rodney G. King trial showed. Many of a trial’s crucial decisions are in the hands of a judge, who will apply specialized standards in making them. This judge, when he or she sees lawyers trying to generate publicity to sway the case, is more likely to be annoyed than impressed.

A trial has its own pace: Facts that at first seem explosive can lose much of their power after they have been mauled by challenges and contradictory accounts. Jurors also develop strong opinions about particular defendants, law enforcement officials and other witnesses on the basis of qualities not apparent on the outside.

Indeed, because the relationship between the publicity and the verdict is so tenuous, it is tempting to conclude in these media-logged cases that prosecution and defense are generating press attention to advertise themselves rather than out of any rational eye to what effect they are having on the bottom line.

Yet there are some cases where outside factors have a huge potential to affect the outcome. These factors can not be manufactured by an enterprising attorney; they have to pre-exist in the population from which a jury will be drawn. Race, gender, attitudes toward particular sorts of crimes--these are the types of sentiment that can overwhelm legal argument.

The Simpson case has idiosyncratic features that could serve this purpose. He is a sports hero. He has given pleasure to millions. He has been a man with whom people want to identify and therefore a man they want to think they know.

More than a few potential jurors who judge themselves open and fair-minded probably share the unacknowledged feeling that Simpson’s life record should be taken into account. Some doubtless have the sense that because of this record, Simpson somehow deserves an acquittal.

These are, of course, not attitudes that can be revealed outright. Those who hold them may not acknowledge it even to themselves. But a juror who harbors such feelings will be looking, in the courtroom, for events and facts that he or she can point to as a source of reasonable doubt about a defendant’s guilt.

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In Simpson’s case we can already see from the publicity what lifelines his lawyers may try to throw to these would-be doubters: The DNA tests were performed improperly. The bloody glove was planted evidence. The policeman was a racist and a liar.

Because of the predispositions in Simpson’s favor that already exist, the publicity generated by his lawyers might conceivably reinforce it, and make jurors more receptive to the doubts that the defense team will sow in court. Maybe.

This is a fairly thin chain on which to hang the large amount of effort that the defense is putting into its activity outside the courtroom. But it has been said that the verdict in any murder trial ultimately comes down to whether the jury thinks the victim deserved to die. It might also be said that this verdict will depend on whether the jurors think the accused deserves to live. If many potential jurors already think the answer to this latter question is “yes,” the defense is right to try to give them arguments to support their emotions.*


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