THE O.J. SIMPSON MURDER TRIAL : The Waiting Game : After Months of Sequestration, the 2 Alternate Jurors Begin a New Phase of Isolation
Juror 1386, a young white woman, used to be a manicurist and personifies the term big hair . She favors dramatic burgundy lipstick and tight tailored suits.
Juror 165 is an elderly black man. He wears conservative suits and was often seen in court sucking on little pieces of candy he pulled out of his pocket.
For the last nine months, these two could proudly count themselves among the 14 survivors--the 14 jurors who endured the tedium and the ordeal of sequestration and made it to court for every bit of the evidence in the O.J. Simpson double murder trial.
But when the other 12 were dispatched Friday by Superior Court Judge Lance A. Ito to begin deliberations, Jurors 1386 and 165, the two alternates, were left behind--abruptly reduced to understudies, relegated to a juror’s never-never land where they will be deprived of the chance to do what their peers now finally get to do: talk about the case.
Unlike the lucky dozen, who can now vent or rage or cajole to their hearts’ content, this pair suddenly faces an empty existence, with nothing to do except sit and wait and then to be thanked for their unflagging devotion to civic duty--and sent home.
“It must be not only a difficult position, it must be an intolerable one when you’re required to be sequestered for this length of time,” said Myrna Raeder, a law professor at Southwestern University. “It’s not simply a time commitment but a lifestyle commitment. They are in that gilded cage just as well as the actual jurors.”
If the Simpson trial was being held across the street, at the U.S. Courthouse, Jurors 1386 and 165 would have been sprung Friday afternoon from that cage. Under the federal system, alternate jurors must be dismissed upon the beginning of deliberations, according to Mark J. Werksman, a former federal and state prosecutor and now a criminal defense lawyer.
In practice, that means that if one of the regular jurors takes ill or is excused for some other reason, the trial continues with 11 jurors, Werksman said. If a second juror is dismissed, lowering the count to 10, “that’s it, the case is over, it’s a mistrial,” said Assistant U.S. Atty. George B. Newhouse Jr.
But in Superior Court, the rules are different. Alternate jurors must wait until the case is over on the chance they will be needed.
In the Simpson case, 10 of the alternates have, in fact, been seated in the box. The jury that got the case Friday is made up of nine African Americans, two whites and one Latino. There are 10 women and two men.
If any of those 12 is excused during deliberations, state law makes it clear that one of the two remaining alternates takes the dismissed juror’s place, and then deliberations must begin anew. But, jury experts said, that is a tough situation on all involved.
“It’s kind of like being a pinch-hitter,” said Robert Hirschhorn, an attorney and jury consultant based in Galveston, Tex. “The problem is, how do you get into the flow?”
The other problem, Hirschhorn said, is that although all 14 jurors have been sequestered together since January, the onset of deliberations is likely to divide the group into two--the 12 in the box and the two alternates. And the alternates, he said, will be seen as outsiders.
“If, in the movie ’12 Angry Men,’ Henry Fonda had been an alternate who’d come in, there would have been a guilty verdict,” Hirschhorn said, speaking of the movie in which Fonda convinces the others on a jury that the accused is innocent.
“It’s very difficult for what is essentially an outsider--believe it or not--to come in,” he said. “And either will absolutely be seen as an outsider, even though they’ve all been living together for nearly a year.”
Nonetheless, lawyers and other jury experts wonder what deliberations involving the two alternates might be like.
Well-spoken and articulate, as revealed in court transcripts, Juror 1386 is 25, lives in Altadena, is married to a black man and said in jury selection that there is a “somewhat serious problem” of discrimination against blacks in Southern California.
She sat at the end of the jury box, in the back row--next to Juror 2457, an elderly black woman. The two seemed to share a warm friendship, with Juror 1386 looking after Juror 2457’s comfort in court, and Juror 2457 seeming to smile at her in a maternal way.
“You can see the [jurors] who form bonds with the alternates. It’s almost like the parting of a friend after a vacation--you look at them and, when the jurors go into the room, you see the longing,” said Jack Earley, a prominent Newport Beach attorney who specializes in murder cases and has defended, among others, La Jolla socialite Elisabeth Anne (Betty) Broderick.
Juror 165, a 73-year-old Inglewood man who works as a security guard, said during jury selection that he had experienced “many racial incidents.”
“Because there are so many women on this jury, I believe this elderly black man would be a powerful force,” Hirschhorn said. “In baseball terms, he could very well be the cleanup hitter. But--he’s sitting on the bench.”
Superior Court rules, in fact, make it quite clear that alternates are not permitted in the jury room during deliberations. And Ito went even further Friday in court, emphasizing that the two alternates would have to be kept apart from the other 12 during deliberations.
But after consulting with the prosecution and the defense, the judge ruled that Jurors 1386 and 165 could mingle with the others at the hotel where all 14 have been sequestered, saying that was the “humane” thing to do.
It remained unclear, however, how the two alternates will spend their days while deliberations are ongoing. “We’ll have the bailiffs take charge of the two alternates,” Ito said Friday in court.
So Juror 1386 and Juror 165 have time on their hands.
During the first murder trial of Lyle and Erik Menendez, which concluded in January, 1994, the two alternates on the Lyle Menendez jury (the case featured two juries, one for each brother) cooked up an innovative routine to fill the time.
Mornings were for quiet time, a few hours to read magazines or books in the empty Van Nuys courtroom where they were passing the days, said Judy Zamos, one of the two alternates, a Woodland Hills woman who teaches nursing.
After quiet time, she and the other alternate would rearrange the furniture and, using the rackets she had brought in, play badminton inside the courtroom. After that, they watched videos.
Zamos said being an alternate was a “mixed bag.” There were “flashes of disappointment” at not being involved in deliberations, but also “a sense of relief at not having to have someone’s life in your hands,” she said.
But, speaking of the time she spent during deliberations, Zamos said, “We never had a bad day.”