Divining Potential Jurors’ Real Racial Attitudes a Daunting Challenge

One of the most difficult tasks in preparing the questionnaire for prospective O.J. Simpson jurors is how to write questions that will accurately determine their attitudes toward race.

Jury candidates, undergoing the voir dire questioning process, are filling out a 75-page questionnaire prepared by Judge Lance A. Ito and the prosecution and defense teams. It seeks to determine the panelists’ feelings about the Simpson case.

Race is one of those areas under examination.

Simpson, who is African American, is charged with the brutal stabbing murders of his former wife Nicole Brown Simpson and her friend Ronald Lyle Goldman, both of whom were white. A Times poll, taken last week, showed some racially polarized attitudes about the trial. Of those who have made up their minds, most whites, Latinos and Asian Americans think Simpson is guilty while most blacks believe he is not guilty.

But, importantly, the survey also showed that 47% of whites, 55% of Latinos, 48% of Asian Americans and 50% of blacks had made no judgment. It’s also important to remember that Simpson was a football hero, his appeal cutting across racial lines so strongly that he became the Hertz Corp.’s longtime television rent-a-car salesman.

Even with this multiracial appeal, however, the Simpson defense team thinks it’s important to determine racial attitudes. “The question is: ‘Are you in touch with your biases? Can you put them aside?’ That’s what we’re really talking about,” Simpson attorney Johnnie L. Cochran Jr. said recently.

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It’s unlikely that the prospective jurors will be confronted with such blunt questions. Students of public opinion have long known that people lie to pollsters when asked directly about race. “It is very difficult to get at prejudice,” said Susan Pinkus, assistant director of The Times Poll. “People know what to say so other people won’t think they are prejudiced.”

On Tuesday I talked to an expert in figuring out jury attitudes, David B. Graeven, president of Trial Behavior Consulting Inc., a San Francisco firm that advises attorneys on jury selection. The company has prepared 750 jury questionnaires in the past decade.

Earlier in the year, I’d read an article by Graeven in Los Angeles Lawyer, the L.A. County Bar Assn. magazine, in which he’d dealt with how to squeeze the truth out of potential jurors with questionnaires.

“One of the greatest fears people have is speaking in public,” Graeven wrote. “Potential jurors are no exception. They report that during oral voir dire, they feel uncomfortable and are afraid of embarrassment. . . . To protect themselves, jurors will minimize the length of their answers or say they have no opinion. When jurors shut down in this way, it is difficult for an attorney, no matter how skilled, to obtain enough information.

“On a juror questionnaire, it is possible for jurors to reflect more of their own views about the issues in a case without the social pressure of speaking in public. Questions can be arranged in a careful sequence that will guide potential jurors through their attitudes about an area of controversy.”

When we chatted on the phone Tuesday, I asked Graeven about the questions he uses to cut through to true racial attitudes.

“I ask questions in a number of different ways,” he said. “One is, ‘Is there any reason why you would hesitate to buy a Japanese car?’ ”

Rather than ask outright about interracial marriages, Graeven said, he’d pose such questions as: How comfortable would you be having a friend who is in an interracial marriage? How would you feel if your child were in an interracial marriage? Do you have objections to interracial couples having a child? Do you think interracial marriages have a chance to succeed?

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The reaction to Simpson’s interracial marriage is one of the most puzzling and interesting issues facing those charged with selecting the jury.

When I discussed this with Joe Duff, an attorney and president of the Los Angeles NAACP chapter, he talked about “the Jack Johnson syndrome.”

Johnson was an early 20th-Century black world heavyweight boxing champion with a white lover. America was outraged and Jackson was prosecuted and convicted of violating the Mann Act--transporting a woman over state lines for immoral purposes. He jumped bail and fled to Canada and Europe, eventually marrying the woman.

The Jack Johnson syndrome, Duff said, cuts two ways. Among African Americans, “being champion is good, but the champion who has a white wife is not. People will turn on him.” But on the other hand, he said, African Americans are watching whites “to see what is going to happen with this guy. Did he step too far? Is he going to get it because of that factor, the Jack Johnson syndrome?”

These questions involve America’s deepest and most secret attitudes, shaped and even inflamed by unprecedented news coverage. No matter how much thought and preparation went into the questionnaires now being filled out in the courthouse, they may never be answered truthfully.