PERSPECTIVE ON THE O.J. SIMPSON TRIAL : Are Commentators Useful to the Public? : Yes, when they stick to explaining the law, not when they guess at what’s unknowable, like which side is winning.

For the past eight months I have been one of the seeming legion of lawyers and law professors offering regular commentary on the O.J. Simpson murder trial. Increasingly, I have begun to wonder what purpose we serve. People are understandably most interested in how the jury is perceiving the case and, especially, how the jury is likely to vote. Commentators can only guess as to this and our predictions are meaningless. Every lawyer knows that it is impossible to forecast a jury verdict, particularly when it is still relatively early in the prosecution’s case.

There is a temptation on the part of the media to treat the trial like a sports event. Frequently, we are asked about who won a particular day or week or who is winning so far. Days and weeks, of course, are not won or lost in a trial. There is only one verdict at the end of the proceedings. If anything, trials are more like two jigsaw puzzles, with one put together and presented to the jury by each side. Each day new pieces are added to the puzzle. Often it is impossible to appraise the significance of a particular piece until others are added days, weeks or months later.

Therefore, the public should be very skeptical when pundits talk about how the jury is reacting or who is winning. In fact, tempting as it is to answer these questions from reporters and anchors, we as commentators do the public a disservice when we try because we misrepresent the nature of the legal process.

If commentators serve any purpose, it is in explaining the law and the likely basis for strategic choices by the lawyers. As anyone watching the trial knows, legal proceedings are filled with jargon and shorthand references. As an educator, I view being a commentator as a chance to help inform more people about the law than I will see in all the classrooms combined during a lifetime as a professor. At the same time, people are interested in understanding why the attorneys and the judge acted in a particular way. Commentators, it is hoped, can help explain.

Very frequently, though, what reporters and anchors want is not explanations, but appraisals. Is the lawyer doing a good job in a specific line of questioning or with a particular witness? The inherent problem with answering such questions is the ambiguity of vantage points. Is it to be answered from the sole perspective of the commentator? The jury’s perspective is impossible. Lawyers and professors undoubtedly focus on different things and perceive matters differently than will a jury with no legal training and with few members having college degrees.

The jury’s ultimate verdict may well be a product of the interpersonal dynamics within that particular small group, something commentators can’t have a clue about. Also, the importance of race cannot be ignored. This jury is largely African American; many commentators, including me, are white.

There is no doubt that race matters, especially in how the police are perceived; no one can even guess as to how much that will matter with this jury.

Therefore, when critiquing the lawyers and the judge, commentators can speak only from their own perspective. Even then there are dangers in expressing such evaluations. Commentators generally have no inside information as to the overall strategic plan of each side; what might seem a terrible choice one day can later seem brilliant, and what seems terrific at the time might later prove awful.

None of this is meant to criticize the media for using commentators. Quite the contrary. Months of daily contact with the press have caused me to have enormous respect for the journalists covering the case. Almost without exception, I have found them to be highly intelligent, incredibly hard-working and deeply committed to accurate reporting.

I am less charitable in assessing the performances of the commentators, particularly my own. The use of lawyers and law professors as regular analysts on a pending case is very new. There needs to be a great deal of thought given to the ethics and craft of this position. At a minimum, being a commentator means making an enormous commitment of time to follow the entire trial and to research the many unexpected issues that arise. Even more difficult is the need to think carefully about what questions we, as commentators, can and should answer and what is our proper role.

These issues should not be taken lightly by the media or the commentators, because ultimately the Simpson trial, more than any other single event in American history, will be the basis for the public’s knowledge and attitudes about the American legal system.