ULTIMATE COURT : History: The 13th Juror

Neal Gabler is the author of "An Empire of Their Own: How the Jews Invented Hollywood." His new book is "Winchell: Gossip, Power and the Culture of Celebrity" (Knopf)

Shortly after the O.J. Simpson jury returned its not-guilty verdicts Tuesday, CNN's Greta Van Suster, one from the legion of lawyers who had become color analysts for the trial, soothingly assured viewers that the jury has spoken and everyone must now accept the result. That set Dominick Dunne, the Vanity Fair writer whose daughter was murdered several years back and whose voice of sane outrage had been a moral beacon throughout the trial, to quake with anger. The jury was wrong, he yelled, ripping the microphone from his tie. The jury was wrong.

According to polls, most white Americans share Dunne's opinion, and many, I suspect, also share his anger. After a pre-verdict night of elation, with Americans seemingly hoping against hope that a largely black jury had weighed the evidence and decided against Simpson, the result struck like a blow--probably the point all along. For the black Simpson jurors, this apparently was pay-back time, time to stick it to white America as they feel white America has always stuck it to them. Send a message, said defense attorney Johnnie L. Cochran Jr. in his summation. They did.

In a narrowly legal sense, of course, everyone must respect the jury's verdict, regardless of how the jurors arrived at it or what motivated them. But the 12 jurors have only resolved this case as a matter of law. There is, as UCLA law professor Peter Arenella has said, a 13th juror--one who has, thanks to television, not only seen and heard all the evidence the jury saw and heard, but a good deal more. And there is another verdict, arguably far more important, to be rendered by that 13th juror. The juror is us, and the verdict is the verdict of history.

To those who believe in the sanctity of the legal system this may sound like heresy. But it has been the traditional role of the 13th juror to "reverse" the legal verdict when it is egregiously wrong. That is what public opinion did when Southern justice routinely exonerated whites who did violence against blacks. That is what it did when the jurors in the first Rodney G. King-beating trial rendered their verdict in gross contradiction of the evidence. That is what it did when El Sayyid A. Nosair was acquitted of murdering Jewish militant Rabbi Meir Kahane--though the crime was committed before a crowd in a hotel ballroom. The larger society had to issue condemnations because the system hadn't.

If Southern justice required it then, many Americans believe Simpson justice requires it now. It requires it not because we are vindictive or racist--most would feel the same way if Joe Montana had been on trial and not Simpson. Rather, it requires it because verdicts, particularly those in high-profile, inflammatory cases, must provide closure and catharsis after the grueling ordeal. They must reassure us that justice has been done, that it is all behind us, that we can now rest.

That is why Americans welcomed the conviction of Lindbergh baby kidnaper-murderer Bruno Richard Hauptmann. It relieved the national anxiety and put an end to a national tragedy. And that is also why, for more than 30 years, we have debated the circumstances surrounding the death of President John F. Kennedy. By murdering suspected assassin Lee Harvey Oswald, Jack Ruby denied us the trial that could, theoretically, have brought both closure and catharsis.

For the nearly 80% of white Americans who believe in Simpson's guilt to have that catharsis now, the 13th juror must convict him in the court of public opinion--just as it convicted King's assailants. It must, by coagulating the sentiments of the vast majority of Americans, stigmatize Simpson and ostracize him. It must not allow him to behave as if this was his nightmare, not the Browns' and Goldmans'. It must deprive him of the opportunity to exploit the deaths for profit.

Already, HBO and CNN have rebuffed offers from Simpson's representatives to air his pay-per-view interview. Unfortunately, someone else will air it, just as someone will publish Simpson's apologia or sell his paraphernalia. Indeed, in a society where notoriety increasingly melds into celebrity, where Oklahoma City bombing suspect Timothy McVeigh can get a glamour shot of himself on the cover of Newsweek, Simpson may get rehabilitated and become an even bigger star--unless the 13th juror prevents it.

It can. In 1845, in New York, Richard Robinson, scion of a prominent family, was arrested for the brutal murder of a 19-year-old prostitute named Helen Jewett. Robinson was the last person seen with Jewett. He had whitewash on his pants matching the whitewashed fence over which the murderer had fled behind the brothel. A blue cloak and ax found at the murder scene were both identified as Robinson's. And his roommate, the Kato Kaelin of the day, couldn't account for Robinson's whereabouts that night. Nonetheless, Robinson's own expensive three-man legal dream team promptly won his acquittal in what was the trial of that century. It took the jury only 10 minutes of deliberation.

But now came the 13th juror. The penny press, playing to public dissatisfaction, seized on the lunacy of the verdict, conducted its own investigations and convicted Robinson in print, if not in law. "Everything which has as yet transpired in relation to this unnatural case goes so strong against the unfortunate young man," concluded the New York Sun. The Herald was blunter: Robinson was "a villain of too black a dye for mortal."

In the end, the papers'--and public's--verdict overwhelmed the jury's. Thus has it passed into history--as it would with Lizzie Borden, who was acquitted of her parents' murders and Byron de la Beckwith, who boasted of killing civil-rights leader Medgar Evers.

America is a notoriously forgiving nation, and Simpson, with his call-in this week to "Larry King Live," has already begun his campaign to re-ingratiate himself with the public. But the 13th juror isn't likely to be as forgiving as the 12 in Los Angeles. It is now deliberating, its verdict to be issued in the months ahead in the attitude the media ultimately take toward Simpson and the latitude they allow him. In the eyes of the law, Simpson is a free man. In the eyes of history, he may wind up being a murderer. Only then can we close the case.*

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