Veil Is Lifted Off a Jury Under Pressure

Defense attorney Barry Scheck dug into prosecution criminalist Collin Yamauchi with his usual brutal thoroughness, but Tuesday’s real O.J. Simpson story wasn’t found in the exchanges between these two foes.

We in the media are more worried about the dwindling jury, a phenomenon that is rapidly becoming the dominant force in Simpson’s trial in the murders of Nicole Brown Simpson and Ronald Goldman.

The media concern echoed what I heard non-journalists talk about during the past three-day weekend. When people discussed the trial with me, they invariably asked about the vanishing jurors and their impact on the trial.

Ever since the trial began, the media and the public have been intensely interested in the jurors, who have been elevated to stardom.

We saw question-by-question coverage of the tests devised by prosecution and defense consultants who compiled psychological, intelligence and character profiles of prospective jurors. Looking back on it, the search for the perfect juror seemed naive.

Despite the preparations, the jurors, placed under strict sequestration, began falling soon after the trial started--two in January, one in February, two in March, one in April, two in May. Eight jurors gone, replaced by alternates. Some had withheld information during voir dire. One was writing a book and another was accused of planning a book, although she denied it.

Instability had taken hold.

What went wrong? Did the screening process let a bunch of lemons slip through? Or are more complicated forces at work?

*

Social scientists will be studying these questions for many years. Even before the Simpson trial, jury dynamics had been the subject of growing study by legal scholars, sociologists and psychologists. The high visibility of the Simpson case, and the erratic behavior of its sequestered jurors, will stimulate the studies.

I’ve been consulting with another kind of student of jury behavior, Keith Rohman, a Los Angeles private investigator who specializes in looking into allegations of jury misconduct. Rohman’s clients often are attorneys who want him to turn up instances of misconduct so they can get a new trial for their clients.

I called him Tuesday morning, the first day of the trial since the dismissal Friday of Francine Florio Bunten, the last juror to go.

Rohman blamed the instability on the high-pressure nature of the Simpson trial.

“I don’t think this jury engages in more misconduct than any other in a long trial,” Rohman said. “In any jury, even a non-sequestered jury, there is misconduct going on every day.”

From our previous conversations, I knew that while the phrase “jury misconduct” has a felonious sound, it usually refers to milder events, such as a juror disregarding a judge’s instruction and visiting the crime scene for an independent investigation.

On Tuesday, Rohman told me about one of his cases that is now on appeal. In his post-conviction interviews with jurors, he found that two of them had car-pooled each day and discussed the trial going to and from the courthouse. Neither lawyers nor the judge knew of the car-pooling arrangement during the trial.

I heard of two other kinds of irregularities from a colleague who had covered a mob-related criminal trial a while back.

A man and a woman juror, he said, were suspected of having an affair, giving them plenty of time to discuss the case in private.

Another juror in the same trial had a highly personal confrontation with police during deliberations when her daughter was arrested. Attitudes toward the police, of course, had a direct bearing in the trial.

Yet, the judge kept all three of the jurors on the panel, with the agreement of prosecution and defense attorneys. Everyone wanted the trial to go on. It ended with the conviction of some of the defendants and the freeing of others because the jury deadlocked on their cases.

*

What was striking about the examples cited by my colleague and private detective Rohman was that the jurors remained on the job despite their conduct.

But the dynamics of the Simpson trial don’t permit such a relaxed and even practical attitude.

Someone--a neighbor, a work rival, a hostile relative--passes on some dirt about a Simpson juror. Judge Lance Ito investigates, a probe that often involves other jurors. In the course of their questioning, they may give Ito dirt on other jurors, touching off a chain reaction. “Part of what is going on is that it is feeding on itself,” said Rohman.

This is what happened when Jeanette Harris was dumped from the jury. She went on television to blast some of the sheriff’s deputies guarding the jurors as being hostile to blacks, which resulted in the transfer of some of the deputies and the jurors’ revolt.

“In a normal trial, the jury is a cipher,” Rohman said. “You don’t know what they are thinking. What is really going on here is we are getting a look beyond the jury veil.”

As the veil is pulled away, we see the tremendous pressure and examination that is the lot of this jury.

No doubt more jurors will fall. The trial has become a race between the rapidly diminishing number of jurors and the time needed for the Simpson case to play itself out.