THE O.J. SIMPSON MURDER TRIAL : Unanimous Verdicts Also On Trial

You don’t expect defense attorneys to sympathize with the prosecution, but a lot of them are privately hoping that O.J. Simpson is convicted.

That unusual twist is prompted by the strong possibility that a Simpson acquittal or a hung jury will give unbeatable momentum to a proposal that will change the way criminal trials are decided: It would permit verdicts with less than unanimous votes by juries.

Momentum seemed to be gaining Wednesday when Gov. Pete Wilson, a candidate for the Republican presidential nomination, endorsed the idea. Given the national fascination with the Simpson trial, it will give Wilson a topic more interesting to New Hampshire and Iowa audiences than his struggles with the California budget.

It’s this national fixation with the Simpson double-murder case that has the defense bar rooting for the prosecutors.

“Some of the defense counsel are hoping for a conviction to defuse the movement,” said Prof. Myrna Raeder of Southwestern University Law School.

Defense attorney Elizabeth Semel of San Diego agreed. She said there is a “history of bad legislation in this state. Some aberrational occurrence takes place and we have not got the wisdom or patience to analyze whether what has occurred is some systemic problem or just an aberration. We assume there must be some systemwide deficiency.”

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In his speech supporting the plan, Wilson reflected much of the popular feeling fueling the movement to permit 10-2 verdicts in most criminal trials. Unanimous verdicts would still be required in death penalty cases.

“At present, 10% of all criminal jury trials in my state result in hung juries,” Wilson told the National Assn. of District Attorneys convention in Las Vegas. “Some, like the Menendez case, earn headlines, scorn, even ridicule. As you’ve seen in the Simpson case, it’s a question of whether it’s Simpson on trial or the legal system or both.”

As is the practice in political speeches, Wilson slanted the story.

While it is true that about 10% of jury trials end in hung juries, said Los Angeles Public Defender Michael Judge, this is a very small percentage of the criminal caseload. The overwhelming majority of criminal cases--about 95%--never go to trial, but are dismissed or disposed of by plea bargain.

And in blasting the Simpson case, Wilson seems to be assuming the defendant will be acquitted or the jury will be hung--far from a foregone conclusion. Wilson also might have mentioned that both Lyle and Erik Menendez face death penalty charges and thus would not be covered by the proposed change in the law. Anyway, there were never more than five first-degree murder votes for Erik and three for Lyle.

But let’s not quibble. Wilson is making his case in broad strokes, and that is how the issue will be viewed in the Legislature and by the voters, who will ultimately have to decide on the proposed amendment to the state Constitution. The amendment is now before an Assembly committee.

First, some background.

The unanimous jury verdict has been around a long time. In his book “We, the Jury,” Jeffrey Abramson said the first recorded unanimous verdict occurred in 1367 when an English court refused to accept an 11-1 guilty vote. “Steadily afterward,” Abramson wrote, “the requirement of unanimity took hold.”

The requirement was eased in 1967 when English juries were authorized to bring in 10-2 verdicts. In 1972, the U.S. Supreme Court approved less-than-unanimous-verdict laws in Oregon and Louisiana.

The movement in California is part of a longstanding drive to toughen crime laws, led by California district attorneys and grass-roots groups organized by crime victims and their families. The most recent example is the “three strikes” measure, providing harsh penalties for three-time losers.

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Advocates say the Simpson and Menendez cases prove their point. On Tuesday, I talked to a liberal lawyer, Melanie Lomax, former president of the Los Angeles Board of Police Commissioners. She said that in high-publicity trials such as Simpson’s, jurors have “become empowered in a way that was not contemplated by the Constitution. They have become players and it is far too easy to manipulate them, to inflame them, and far too difficult to be sure there is exclusive focus on the evidence. That means society needs a safety net, some safeguard that would prevent some mindless, mean-spirited or preposterous kind of person” deadlocking the jury.

But opponents reply that 10-2 verdicts will cut down jurors’ examination of the evidence. “Unanimous verdicts require full discussion,” said Beth Bonura, president of the National Jury Project, which advises lawyers on jury selection. If a jury quickly votes 10-2 for guilty, then the two dissidents will not be heard.

As Judge of the public defender’s office said, referring to Henry Fonda’s famous portrayal of the holdout juror in the film “12 Angry Men”: “They don’t have to listen to Henry Fonda. They can just get the hell out of there.”

That is a chilling thought to defense lawyers, frightening enough to make them cheer for their prosecutorial foes.