Simpson Jury Makeup Echoes Court’s Wisdom

The noise in the media about the O.J. Simpson trial is so overwhelming that it’s easy to forget that this is a proceeding governed by law, not mindless speculation.

For example, consider the process of peremptory challenges against prospective jurors. No reason must be given for such a challenge. Prosecution and defense attorneys can dump a prospect if they don’t like his clothes, hair length or attitude. But the reason can’t be because he’s part of a racial, religious or ethnic group. Each side has 20 such challenges, and they began using them Thursday.

Even before the peremptory challenges began, defense attorneys Johnnie L. Cochran Jr. and Robert L. Shapiro started to spin a tale of the prosecution systematically attempting to exclude blacks from the jury trying the African American football hero. The prosecution vigorously denied the allegation.

The controversy was nonsense. Both prosecutors and defense attorneys know full well that this is against California law, that the state Supreme Court outlawed group exclusion in 1978. In that momentous decision, the state’s highest court ruled that prospective jurors cannot be dismissed through peremptory challenges simply because they’re black, Jewish, Native American or of German, Italian or Scottish heritage. This constitutes group bias, the court said, and is grounds for reversal of a verdict.

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For a reality check on the juror situation, I read that decision, People vs. Wheeler, where the law on peremptory challenges is laid down in clear, strong language by Associate Justice Stanley Mosk.

Two African American men were charged in Los Angeles County with the murder of a store owner during a robbery. Blacks were included on the panel of jury prospects. But the prosecutor removed them through peremptory challenges.

Defense attorney Edward I. Gritz protested. “There are seven Negroes that have been kicked off the jury by (the prosecutor),” he said. “I make a motion for a mistrial. It is apparent that it is a policy of the district attorney’s office not to permit any Negroes on this jury. Some of them have been kicked off without even questioning them.”

The judge denied Gritz’s motion for a mistrial, and the two men were eventually convicted by an all-white jury. The verdict was reversed by the state Supreme Court.

In his opinion, Justice Mosk started off with the common-sense observation that jurors are members of racial, economic and ethnic groups and “it is unrealistic to expect jurors to be devoid of opinions, preconceptions or even deep-rooted biases derived from their life experiences in such groups.”

Mosk welcomed this. He saw the jury as an intellectual battleground, with diverse elements arguing until they arrive at an impartial verdict. But for this intellectual caldron to function, a variety of groups must participate “so that the respective biases of their members, to the extent they are antagonistic, will tend to cancel each other out.”

Peremptory challenges can’t be permitted to wreck the mix. The jury panel, Mosk said, must remain representative, and not skewed toward or against any particular group.

Certainly, peremptory objections can be filed.

“A prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, (or) because his clothes or hair length suggest an unconventional lifestyle,” Mosk wrote. “In turn, a defendant may suspect prejudice on the part of one juror because he has been the victim of a crime or has relatives in law enforcement.”

What’s important to note about these objections, however, is that they cut across racial, religious and other group lines. “Both blacks and whites may have prior arrests, both rich and poor may have been crime victims,” said Mosk.

So when prospective jurors are dismissed for those reasons, it doesn’t upset the population mix of the jury panel. Debate between members of diverse groups will continue, Mosk said, and the jury will achieve “an overall impartiality by allowing the interaction of the diverse beliefs and values the jurors bring from their group experiences.”

With the Wheeler decision, the job of judges and lawyers became much more difficult. Peremptory challenges suddenly became the subject of judicial review.

Under the decision, lawyers are told to immediately file objections with the judge when they suspect bias. The lawyer “must raise the point in timely fashion and make a prima facie case to the satisfaction of the court.”

What are the guidelines for the judge? “The party may show that his opponent has struck most or all the members of the identified group from the (panel) or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic--their membership in the group--and that in all other respects they are as heterogeneous as the community as a whole.”

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These guidelines were no doubt in the minds of prosecutors and defense attorneys during Thursday’s peremptory challenges.

At day’s end, they had settled on a jury of eight women and four men. Eight are black, one white, two Latino and one part Native American and white. Their ages range from 22 to 52.

This was well within the Wheeler guidelines. No doubt, Wheeler will be observed closely when the picking of alternate jurors begins. The jury looks like a group that has a mixture of backgrounds that will produce debate from men and women from many parts of the community.

Just what Justice Mosk had in mind when he wrote the Wheeler opinion.