Did the Simpson jurors ignore the dictates of the law and heed their social consciences and Johnnie L. Cochran Jr.'s call to send a message about racism in the Los Angeles Police Department?
One by one, the jurors are surfacing to explain their surprisingly quick verdict and to emphasize that it was their doubt about the evidence that caused them to acquit O.J. Simpson, not Cochran's eloquence or any desire to make a social or political statement.
But, truth be told, if the jurors were to shout from the rooftops that they acquitted Simpson for reasons unrelated to the evidence, they would be squarely within the American legal tradition, and the English tradition upon which it is based.
The controversial doctrine--known as jury nullification--holds that jurors can disregard the law if they see a higher moral imperative.
"Jury nullification has been a part of the American tradition since the days when the colonials were the defendants and the [English] were the prosecutors and judges," said Robert Weisberg, professor of law at Stanford.
There is even a slow-moving national effort based in Montana that proposes that juries everywhere be instructed from the bench that they need not follow the law. So far, only Oklahoma and Arizona have even nibbled at the idea, but the activists, who are meeting this weekend in Salt Lake City, are convinced that time and a rising tide of anti-government sentiment is on their side.
Don Doig, one of the founders of the Fully Informed Jury Assn., said that the Simpson verdict is not jury nullification because no one in their right mind would want to nullify the law against murder. Still, the acquittal is a kind of "peripheral" jury nullification because it shows a heightened sensitivity to the Bill of Rights, Doig said.
"Jury nullification is a way to control an out-of-control government, which clearly the Simpson jurors wanted to do," said Doig. "It is a good method that has been repressed because the authorities don't want to share power."
Legal procedure prohibits an attorney from making a pure jury nullification argument that a client is guilty but deserves to be acquitted because the law is bad, corrupt or racist. That does keep attorneys from calling on jurors to see the larger implications of their decision, which some legal analysts see as jury nullification through the back door.
In fact, Prosecutor Marcia Clark complained that Cochran was using a forbidden "jury nullification" argument in closing statements. Judge Lance A. Ito responded that Cochran's argument had indeed been "artful" on that point.
Another artful use of such an argument was used in the Simi Valley trial of the police officers accused in the beating of Rodney G. King. One of the defense attorneys told jurors to remember that only a "thin blue line" of police officers willing to risk their lives keeps the law-abiding safe from the criminal element. A certain amount of force is inevitable in maintaining law and order, he argued.
Judges, including Lance A. Ito, vigorously warn jurors that they have sworn an oath to uphold the law. Prosecutors are pained at the very mention of jury nullification.
"I almost wish there were not a word for it," said Greg Thompson, assistant district attorney in San Diego County, "because it gives status and dignity to what is basically violating your oath as a juror to follow the law."
Despite the bad rap it has among judges and prosecutors, the concept has been part of Anglo jurisprudence since the freethinking Quaker William Penn convinced an English jury in 1670 not to convict him of breaking a law banning publications critical of King Charles II.
The crown put the jurors in prison but later backed down, forever establishing the supremacy of jurors, not the Establishment, in criminal cases. When British subjects settled in the colonies, they brought the Penn tradition with them as a way of asserting independence.
The jury system in the colonies, said UCLA law professor John Shepard Wiley Jr., was meant as a kind of "mechanism of institutionalized civil disobedience" against authority and for "sending messages" about injustices that transcend the individual case involved.
In fact, the very presence of the trial by jury in the U.S. Constitution hinged on perhaps the most famous case of jury nullification in our history, the acquittal of John Peter Zenger, the New York printer, on charges of libel and sedition, Wiley said.
"There has been the possibility from the outset [of American justice] that jurors won't apply the law as written," Wiley said. "That has never been the goal of the system but it is has been a definite byproduct."
Alan Scheflin, a law professor at Santa Clara University, has written extensively about jury nullification and believes that it is a way to restore the public's faith in the courts.
"American juries have always risen above the law in cases of great moral claim and voted to acquit," Scheflin said.
During the Vietnam War, lawyers for draft resisters asked juries to consider the war a bigger crime than burning a draft card. Attorneys for abortion protesters have argued that terminating an unborn life is more sinister than blocking a doorway.
Among those attracted to the jury nullification movement are people who oppose gun laws, seat belt laws, the income tax, legalized abortion, marijuana laws and statutes that restrict alternative medicines. Jury nullification also has become an organizing cry for the militia and "patriot" movements.
Before the trial of the Branch Davidians in Texas, activists distributed 50,000 pamphlets outside the courthouse in hopes that jurors would learn that they could acquit the cultists without fear of official reprisal. Similar pamphlets were distributed outside the Los Angeles courthouse during jury selection in the Simpson case.
"We have no indication any jurors got one of our pamphlets, but who knows?" said Jim Harnsberger, a San Diego jury nullification activist convicted of violating a court order there banning him from distributing his pamphlets near any of San Diego County's five courthouses.
Appeals courts, in considering jury nullification, have agreed that the right exists "but they don't want to let judges announce it to jurors or legitimize it too much," Weisberg said.
Even before the Simpson case went to the jury, prosecutors cried foul over Cochran's impassioned plea about racism and an alleged police cover-up to the predominantly African American jury.
Cochran, at his post-acquittal news conference, bristled at the notion that he had won because the jurors indulged in jury nullification. "If you watched this trial, if you watched the arguments, then you know that this idea of jury nullification, this idea that we didn't have the facts, is just preposterous," he said.
Jury consultant Beth Bonora, founder of the Oakland-based National Jury Project, does not believe that the Simpson verdict was jury nullification. But after conducting thousands of post-trial interviews with jurors, she notes that it is difficult to determine just why a juror voted a certain way.
"Everybody brings to the jury box his life experiences and attitudes," Bonora said. "Those things affect how they evaluate the evidence, the witnesses and even the jury instructions."
"There are certain shut-offs in jurors' minds," Weisberg said. "If a juror is sufficiently concerned with a certain political or social problem, that might cause him not to look at certain facts in the case very carefully."
Although jury nullification is often associated with questions of individual freedom, it also served as the tactic used by all-white juries in the South after the Civil War to acquit white men accused of lynching blacks, Wiley noted.
"Before we start celebrating jury nullification too much," he said, "we ought to consider what 'community justice' can look like."