In comments that could preview opening statements in the O.J. Simpson murder trial, prosecutors and defense lawyers urged prospective jurors Wednesday to set aside issues such as race and celebrity in weighing the evidence against the football Hall of Famer.
Each side was given 75 minutes to address 41 people who have undergone weeks of questioning about their suitability to serve on the jury, and the lawyers made the most of it, mixing philosophical lectures with more pointed remarks addressed to specific panelists.
Simpson's lawyers took the opportunity to again raise the theory that more than one killer committed the June 12 murders of Nicole Brown Simpson and Ronald Lyle Goldman--and that Simpson has been tragically and falsely accused of those crimes. Prosecutors, meanwhile, called on jurors to trust their common sense and not be misled by conspiracy theories or wild speculation about how the killings occurred.
"There will not be a sign outside the jury room that says: 'Check your common sense at the door,' " said Deputy Dist. Atty. William Hodgman, one of the lead prosecutors in the case. Hodgman repeatedly emphasized that jurors should rely on their common sense, advice that several pledged to follow.
The comments from the lawyers came as both sides prepared to begin exercising peremptory challenges, those used to excuse jurors without having to state a reason. Superior Court Judge Lance A. Ito and the lawyers had hoped to embark on that phase Wednesday, but delays forced them to wait a day.
Instead, they are scheduled to begin this morning, resuming a jury selection process that has bogged down repeatedly as the two sides have winnowed out jury candidates with biases or other obstacles to their service. On Wednesday, Ito said it is likely that some of the estimated 200 prospective jurors who are on call for possible service in the case will be brought in and questioned as well. That could take almost a month, and may force opening statements to be postponed until early next year.
Before starting to exercise their peremptory challenges, the lawyers were given the opportunity to question the panelists one more time and to address all 41 at once--one prospective juror called in sick, leaving the group short of its full complement of 42.
That was a rare chance to address the people who may decide the case, and the lawyers took full advantage. Attorneys on both sides approached the prospective jurors graciously, effusively thanking them for their efforts so far and gently pitching the defense and prosecution versions of the murder case under the guise of questioning panelists about their preconceptions.
First up was Johnnie L. Cochran Jr., one of Simpson's lead attorneys and one of Los Angeles' most experienced trial lawyers. Cochran reminded prospective jurors that the Los Angeles County district attorney's office has lost a number of high-profile cases in recent years and that law enforcement officials, like other people, sometimes lie under oath.
"Everybody here is an adult," Cochran said. "Everybody here lives in the real world. . . . We know that people will sometimes swear to tell the truth and then absolutely lie."
Cochran's gentle lecture, in which he suggested that several people may have been responsible for the June 12 murders but that Simpson was not one of them, was in contrast to the more pointed questions of his colleague, Robert L. Shapiro. Shapiro questioned jurors one at a time, challenging two who seemed to indicate that they would hold Simpson responsible for establishing his own innocence, rather than forcing prosecutors to prove his guilt.
"That's what keeps me up at night," Shapiro told the panelists. "It's (the prosecution's) burden. It never switches."
Simpson's lawyers and prosecutors met later with Ito outside the presence of the jury panel. The two prospective jurors who expressed confusion about whether it was Simpson's responsibility to prove his innocence were excused by Ito.
"I felt I would be an excellent juror," said Abe Englander, a 77-year-old World War II veteran who had lobbied hard for a spot on the jury. "It was something of a letdown."
In his questioning, Shapiro also touched on a key strategic decision that awaits Simpson's attorneys by asking prospective jurors whether they would hold it against Simpson if he chose not to testify. That decision, Shapiro said, would be made by Simpson and his lawyers--and was one that jurors were not to second-guess.
Both Shapiro and Cochran used their time to insist that jurors see Simpson as a human being, not merely as someone charged with a horrible crime. Pointing to Simpson, Cochran reminded prospective jurors that he is not just a "defendant," as prosecutors typically refer to him.
"That's Mr. O.J. Simpson over there," Cochran said. "This is about human beings."
During the questioning, Simpson looked as though he were a working member of the defense team, studying the list of jury prospects, talking with his jury consultant, establishing eye contact with the panelists.
When it came her turn to address the panel, Deputy Dist. Atty. Marcia Clark said there was nothing wrong with calling Simpson the defendant and added that she has never sought to dehumanize him.
"He is the defendant, right?" she said, speaking softly but occasionally jabbing the lectern for emphasis. "He is Mr. Simpson, and he is the defendant."
In fact, Clark said, when she looked at Simpson she could not help but think of "the man I saw in 'Naked Gun' and made me laugh."
"He's such a famous guy," Clark said. "He's such a popular guy that there's going to be a real pull to do something different from what the law requires."
But she reminded members of the jury panel that Nicole Simpson and Goldman were human beings, too, and that while O.J. Simpson is in the courtroom to defend himself, they are not.
"Nicole and Ron will be referred to as victims," Clark said. "They lived and they breathed and they walked and they were human and they had a right to live. They were people, too."
Citing a number of issues that loom in the background of the case--such volatile topics as interracial marriage, spousal abuse and fame--Clark asked: "Does everyone agree that this is not the time to even the score on any of those issues?"
Some jurors nodded. None disagreed.
Both sides broached the issue of race in the case directly, with Cochran saying the defense did not want to make an issue of Simpson's race but adding that "if you live in America, you would be foolhardy to say that race does not play a role" in the criminal justice system.
"The defendant's race will not count for him or against him--can I have your assurance of that?" Cochran asked the prospective jurors. They mumbled agreement.
Clark echoed that theme in her remarks. "Race is not a reason to acquit," she said. "Race is not a reason to convict."
The prosecutor peppered her comments about race with observations about the trouble it can cause when the issue surfaces in trials, citing the trial in Simi Valley of four Los Angeles police officers charged with beating Rodney G. King. That case, she said, "looked like a slam-dunker for guilt" until it was sent to a predominantly white community where it was heard by a jury that included no blacks.
She condemned those verdicts, prompting defense attorneys to object later, out of the earshot of potential jurors.
"What do you think these jurors will think?" Cochran told reporters, explaining the defense objection. "They will think they'll be attacked."
In court, Ito joined in criticizing Clark's remarks about the Simi Valley case, and when prospective jurors reassembled in the afternoon, she apologized to the panel.
"I hope I didn't offend you by my comments," she said. Several of the potential jurors shook their heads, signifying that they had not been bothered by the remarks.
Picking jurors for the case has been laborious, and Ito predicted that the current group of panelists, which stands at 40 after the dismissal of two prospective jurors Wednesday, will not be large enough to yield a jury of 12 along with 15 alternates--an expanded group that lawyers said is intended to ensure that even if some become exposed to publicity in the coming weeks, enough will remain to hear the case.
Calling in more prospective jurors will prolong the process, however, and Ito said Wednesday that he no longer expects to begin a DNA hearing in mid-November, as scheduled. Instead, he is hoping to begin that hearing by Dec. 1.
Because that hearing is expected to last three to five weeks--and because Ito intends to recess the trial around Christmas--it appears increasingly unlikely that opening statements in the trial will begin before January.
Originally, Ito had said he wanted to select 12 jurors and eight alternates, but he expanded the number of alternates to deal with any possible attrition during the time that the lawyers are arguing over the admissibility of DNA evidence and other pretrial questions. Although jurors will certainly be asked to avoid any coverage of those hearings, a number of panelists have reported difficulties in steering clear of the media, and the extra alternates may help prevent the need to start the process over again if too many are disqualified in coming weeks.
The increased number of jury alternates made it highly unlikely that a full panel can be chosen from the 40 people who remain eligible for service after undergoing several weeks of sometimes-grueling questioning. Each side is allowed to exercise 20 peremptory challenges.
The racial undercurrents of the case have persuaded some legal experts that Simpson's attorneys may seek to have as many blacks as possible on the jury. At the same time, experts say that allegations of spousal battery against Simpson may make prosecutors inclined to seek as many women as possible.
As they exercise their challenges, however, both sides must be mindful of Supreme Court rulings that prohibit them from intentionally seeking to keep out jurors because of their race or sex.
* THE SPIN: The prosecution attacks two potent issues in the trial, columnist Bill Boyarsky writes. B1