THE O.J. SIMPSON MURDER TRIAL : Balky Trial Could Help Ignite Move to Radically Alter Jury System

When Californians feel the criminal courts are failing them, they often react by voting for swift and radical changes in the law.

That happened in 1994, when voters approved the “three strikes” measure, mandating 25-years-to-life sentences for repeat felons with three convictions. It was also the case more than a decade earlier when the electorate supported a major toughening of the criminal laws known as the Victims’ Bill of Rights.

But those changes could seem like small change compared to the time bomb now ticking at the Criminal Courts Building, where O.J. Simpson is being tried in the murder of his ex-wife Nicole Brown Simpson and her friend Ronald Lyle Goldman.

The Simpson trial has been under fire by some observers from the beginning for a lack of discipline and visible progress. But its potential to inspire truly revolutionary change wasn’t really clear until Friday when 13 jurors went on strike to protest Judge Lance A. Ito’s removal of three sheriff’s deputies acting as guards for the jury.

This sounded like a stalemate. If the split continues through the trial, it could assure a long-predicted outcome, a hung jury.

The specter of a long, expensive trial that yields no decision has inspired discussion about another radical legal proposal--permitting defendants in criminal trials to be convicted by 10-2 or 11-1 votes instead of the unanimous approval now required.

It would be a departure from centuries of Anglo American legal tradition, eliminating the possibility of one or two holdout jurors who are deaf to the arguments of their peers.

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The first signs of the movement are visible in Sacramento.

Charles M. Calderon (D-Whittier), chairman of the Senate Judiciary Committee, said his group is considering a bill to eliminate unanimous votes for juries in misdemeanor criminal cases. As far as felony trials are concerned, Calderon said, “I would support a less-than-unanimous decision if the vote were 11-1.” But he would not apply the change to death penalty cases.

Part of what is motivating him is the Simpson case, he said, and part is public resentment over the hung juries in the trials of Erik and Lyle Menendez, charged with the murders of their parents.

Legislative aides report that constituents are calling lawmakers demanding the change. “I think the combination of the O.J. Simpson case and the Oklahoma City bombing are going to lead to increased pressure to change the system to make it easier to convict people,” said Santa Monica defense attorney Gerald Chaleff. “It absolutely increases the possibility of a ballot measure.”

Unanimous verdicts, according to a decade-old Senate Judiciary Committee report, have been part of AngloAmerican law for more than 600 years. In 1769, the famous legal scholar Dr. William Blackstone wrote that the conviction of the accused should be “confirmed by the unanimous suffrage of 12 of his equals, indifferently chosen and superior to all suspicion.” This requirement, he said, should remain “sacred and inviolate.”

The U.S. Supreme Court in 1972 decided that, while the Constitution required unanimous verdicts in federal court, states were allowed to use a less stringent standard. Louisiana and Oregon permit non-unanimous verdicts in all cases; Idaho, Oklahoma and Texas allow them in misdemeanor cases.

In California, however, the courts have consistently held that the state Constitution requires a unanimous verdict in criminal cases. It would take a constitutional amendment, voted on by the people, to remove the requirement.

Opponents of such a change protest that it would cut off debate in the jury room and allow the conviction of innocent people.

But proponents say the change would save money by eliminating many retrials of hung jury cases. But it’s uncertain just how many trials end deadlocked. Los Angeles County Dist. Atty. Gil Garcetti’s office said it didn’t know. An early 1980s study by the office showed that 15.5% of all juries couldn’t agree.

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Similar proposals have failed in the Legislature before, and there’s never been the grass-roots support to get the measure on the ballot with a petition drive.

But there’s never been anything quite like the Simpson case, a trial pounded into public consciousness every day on television, radio and in print.

Political strategist and pollster Arnold Steinberg said he thought a Simpson hung jury would stir up agitation for a change in the law.

“But I think the political impact is unlikely to be perceived immediately,” he said. “A lot of these trials and events result in sea changes in opinion that are felt later. Look at affirmative action. A few years ago, people never would have thought of doing away with it. Now they are.”

Expect the movement to start in the state’s law enforcement establishment in the event of a deadlocked Simpson jury. That’s been the birthplace of other changes in the criminal justice laws.

If it is successful, convictions would increase. But so would the number of innocent people going to jail.