Going, Going and Soon All Gone? : Case of disappearing Simpson jurors points up need for a rethinking of our trial processes

And then there were four. . . .

A specter stalks the O.J. Simpson murder trial. It is the fear that before this marathon is completed, the pool of alternate jurors--now reduced from its original dozen by two-thirds--will have dried up and that Judge Lance A. Ito will find himself compelled to excuse a juror for whom there is no replacement. Juries of fewer than 12 are permitted if both prosecution and defense agree, but in this case it’s quite possible that no agreement would be reached, forcing Ito to declare a mistrial. And then the whole process would begin again. It would occur at redoubled cost to Los Angeles County and to the defendant, and at almost inhuman inconvenience and inevitable psychological strain on the new jury finally chosen after weeks or months of examination and argument. Then the jurors would be expected to sit in judgment with the pretended understanding that they are unaffected by all that has gone before.

Prominent cases, as Southern Californians well know, tend to be prolonged cases, with issues that might once have been decided in days or weeks consuming months or even years of trial time. There are plenty of reasons why. Extensive pretrial news coverage of sensational cases arguably complicates the task of jury selection. “Expert” testimony inevitably invites testimony from counter-experts. Scientific evidence--note how much time has been spent on DNA in the Simpson trial--may well be extremely complicated and bitterly argued. It’s a truism that this is the price we pay for a system that seeks--overall, after long evolution, with marked success--to ensure that justice is done. But does doing justice require sacrificing fairness?

Clearly trials of epic length are grossly unfair to everyone involved--to defendants, to taxpayers who foot the bill for prosecutions and, most of all, to jurors. It is simply wrong to demand of those on jury duty that they give up a significant portion of their lives to a trial. Worse is when they must do sequestered. That’s not public service, it’s punishment.

What we fear is that public revulsion over costly, prolonged, sometimes inconclusive trials will prompt hasty and heedless efforts to rewrite relevant laws. What we hope instead is that thoughtful legislators, disinterested lawyers and legal scholars will join together to see whether the entire trial process can be made swifter, without imperiling anyone’s rights. We don’t know whether there’s a remedy. But what’s clear is that there is a problem and it’s not going to go away or cure itself.