NEWS ANALYSIS : How Many Jurors Does It Take to Reach a Verdict? : Courts: Some say Simpson case can proceed with fewer than 12 panelists. Others say state Constitution forbids it.

If they were pupfish or fringe-toed lizards, the jurors in O.J. Simpson’s double murder trial already would be protected by the Endangered Species Act. But as their numbers continue to dwindle, speculation has increased dramatically over what will happen if the number of panelists falls below 12.

The trial’s original 24-member panel now stands at 12 jurors and four alternates. But a ruling on the fate of one juror may come today and the status of two others is believed to be under discussion.

Simpson’s lead defense lawyer, Johnnie L. Cochran Jr., has already said his client would consent to a verdict rendered by fewer than 12 jurors; Los Angeles County Dist. Atty. Gil Garcetti has refused to commit himself on the question.

On Thursday, Superior Court spokeswoman Jerianne Hayslett said: “If both sides stipulate to continuing the trial with fewer than 12 jurors, then they can do that. But both sides will have to stipulate. If one side will not stipulate, the judge will have to declare a mistrial. I talked with the judge about it today.”

Thus, the ball is firmly in Garcetti’s court. But whether he agrees to go forward or asks Judge Lance A. Ito to declare a mistrial, the prosecutor’s options--like nearly everything else connected with the Simpson trial--appear fraught with novel perils, both legal and political.

In fact, even the legal side of the equation is less straightforward than commonly believed. It generally has been assumed that the trial can go forward with fewer than 12 jurors, if both sides agree. The federal system permits such situations, and they have occurred in a handful of California cases.

But the state Supreme Court never has spoken explicitly on the issue. Leading legal scholars, therefore, are divided over whether the state’s Constitution permits felony verdicts by fewer than 12 jurors. Similarly, experienced criminal lawyers say there is no precedent on whether the prosecution’s refusal to proceed with a smaller jury creates the “legal necessity” that would allow Ito to declare a mistrial without triggering Simpson’s constitutional protection against double jeopardy. If a higher court were to rule that the prosecution’s refusal to proceed did not amount to legal necessity, then the former football star could not be tried again for the murders of his ex-wife Nicole Brown Simpson and her friend Ronald Lyle Goldman.

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Among those analysts who believe that the trial cannot legally go forward with fewer than 12 jurors is Santa Monica appellate lawyer Dennis Fischer, a leading authority on the State Charter. “I think the controlling case on this issue is called the California Constitution,” he said. “It says: ‘In criminal actions in which a felony is charged, the jury shall consist of 12 persons. In criminal actions in which a misdemeanor is charged, the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.’

“The people of California have added the language allowing the parties to agree to a lesser number only in misdemeanors,” Fischer said. “In the Simpson case, if the parties on both sides should somehow agree to a lesser number than 12, would Judge Ito be allowing a violation of the Constitution if he permitted it?

“I think the answer is yes, because such an agreement would render superfluous the explicit constitutional limitation on such agreements, which clearly applies only to misdemeanors.”

Other legal analysts disagree, among them former University of Santa Clara Law School dean Gerald Uelmen, the constitutional expert on the Simpson defense team. He contends that the state constitutional provision cited by Fischer “simply forbids a stipulation in advance that a case will be tried with less than 12 jurors.”

To buttress his position, Uelmen cited a 1975 California appeals court decision called People v. Ames. In that case, a Stanislaus County Superior Court judge noticed that one of the jurors was sleeping during the defense lawyer’s closing argument. The judge called a recess and in chambers said he would grant a mistrial, if the defendant requested it. After consulting his client, the defense lawyer said they were willing to go forward with 11 jurors and the prosecutor agreed. The defendant was convicted, and then appealed.

A California appeals court overturned the conviction, though not because the verdict had been reached by fewer than 12 jurors. Instead, the court based its ruling on the fact that the defendant had not personally expressed her consent to an 11-member jury.

In their decision, Uelmen said, the justices reasoned that because the state Constitution allows a defendant to give up his right to a jury trial altogether, he also can stipulate to a panel of less than 12.

USC law professor Charles D. Weisselberg found Uelmen’s reasoning sound--”as long as there is agreement by both sides,” he said. “I don’t see why with a waiver you couldn’t have a jury of any number that is agreed on. After all, with agreement of both sides, there can be a waiver of the jury altogether.”

Defense attorney Gerald L. Chaleff, a former president of the Los Angeles County Bar Assn., agreed, citing an even more recent precedent. “In 1990, the state Court of Appeal ruled in People vs. Trejo that--by the consent of both parties expressed in open court--there could be a jury of less than 12. The California Supreme Court refused to hear an appeal in that case, so it still is in force.”

In that case, an appellate court rejected a Fresno man’s attempt to overturn his conviction on drug charges by a jury of just six people.

“The common law conditions which bode against waiver of rights by the accused no longer exist under our modern system of criminal justice,” the justices wrote. “Since 1928 the California Constitution has permitted a criminal defendant to waive a jury trial. . . . That the jury at common law was composed of 12 persons is a historical accident . . . without significance except to mystics. . . . The purpose of the jury is to prevent oppression by the government. This function is not tied to a specific number of jurors.”

Other analysts, however, are less confident of the scope of the Trejo ruling.

“That decision by a Fresno appellate court fails to engage the fundamental issue,” constitutional expert Fischer said. “Instead it focuses on the question of when--not whether--such waivers are appropriate. It also arose in a case in which the parties agreed from the outset to a six-person jury. Frankly, this is simply another nightmare for Judge Ito.”

Legal analysts do agree that prosecutors’ refusal to stipulate to a jury of less than 12 could create the “legal necessity” in response to which Ito could declare a mistrial without triggering Simpson’s constitutional protection against double jeopardy. They note, however, that because the situation never has arisen before, there are no legal precedents to guide the judge.

“Double jeopardy is a very complex issue,” said Los Angeles defense attorney Michael Lightfoot. The state Constitution explicitly “says that a felony jury shall be 12 persons. Doesn’t that give the prosecution a constitutional right to a jury of 12? If the prosecution decides they don’t want to give up the right to a 12-person jury, and Ito agrees that the prosecution has the same right as the defendant, then Ito might be forced to grant a mistrial. But it is by no means a settled question.”

San Diego defense attorney Elisabeth Semel said that if Ito grants a prosecutorial request for a mistrial, she sees little chance his decision would be overturned. But she finds the situation paradoxical. “Usually, the government is willing to settle for less because it wants a guilty verdict,” she said, “and any time you reduce the number of jurors you increase the probability of conviction. But for every rule, there’s an exception and the Simpson case is nothing but exceptional.”

But the legal complexities Garcetti confronts in the Simpson case pale before the political implications.

Former Los Angeles County Dist. Atty. Ira Reiner sees the political situation in stark terms. “The defense loves this jury and likes the way the evidence has come in,” he said. “The prosecution would love to bail out now. They’d like to start over with a different jury. But from a political standpoint, it is impossible for the district attorney’s office not to agree to go ahead with a jury of less than 12. Millions of dollars and months of testimony would go down the drain if they don’t.

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“The public reaction would be virtually universal in its condemnation of this decision. No matter how much the office would like to start over with a different jury, it couldn’t withstand the firestorm. Boxed in does not begin to describe their situation,” Reiner said.

But to pollster Arnold Steinberg, who advised Garcetti during his campaign, the situation is politics as usual.

“The case has been handled in a political way from the start,” he said. “The district attorney’s decision not to seek the death penalty in a double murder clearly was a political one, and so was his decision to move the case from Santa Monica to Downtown.

“When the judge granted a television interview to a reporter from Channel 2, it was a political decision,” Steinberg added. “When the lawyers for both sides posture for the press, they’re essentially campaigning to win the votes of jurors in a potential retrial. So, this is a political case in every sense.”

Steinberg, who has worked as a public opinion consultant in a number of major trials, believes a mistrial would be “a mixed bag for Garcetti. If people feel he’s given it his all, there’s a natural knee-jerk, law-and-order response in his favor. If, on the other hand, the mistrial is seen as a result of his office’s failures, it could bring the vultures out.”

Houston-based jury consultant Robert B. Hirschorn anticipates public criticism of a mistrial’s cost. But, he said, “a loss would cost the prosecution substantially more than trying this case again. They will prosecute the case regardless of cost, because they have to save face with the citizens of Los Angeles County. The elected D.A. has announced to the people that this is an open-and-shut case. And the D.A.’s office has suffered a string of losses in high-profile cases. Their reputation is riding on this verdict.

“The prosecution would rather have a conviction that costs $10 million than an acquittal that costs $6 million. Imagine spending $6 million and losing,” Hirschorn said.

One veteran deputy district attorney, who asked not to be identified, said the D.A. also must keep an eye on the situation within his own office. “If Garcetti decides against going forward with 11 jurors, he’s a dead man,” the prosecutor said. “The only possible reason you could put forward is that we screwed up in where we filed, picking the jury or presenting the case. Those are all reasons you can’t acknowledge publicly. So he would be left with finding some other reason to explain why we should go back to ground zero and spend millions more. I don’t know what it would be.”

* SIMPSON TRIAL: After a debate about three jurors, testimony resumes. A28