THE STATE : Protect the Jury System, Judge Was the Problem

Barbara Allen Babcock, a law professor at Stanford, was an assistant attorney general in the Carter Administration. Before teaching, she spent nine years in private and public criminal defense

"I personally would have a reasonable doubt, but it's true there is overwhelming evidence that he is possibly guilty."

This statement by an African-American man, interviewed on TV shortly before the verdict in the O.J. Simpson double-murder trial, reveals the tension inherent in our jury system. "Overwhelming evidence" may lead only to the "possibility" of guilt, and in its face, the jury may still entertain sufficient reservations to acquit.

Juries may also make mistakes, may be swayed by passion, prejudice and sympathy to acquit a guilty person; may misread the evidence, or misconstrue their duty. The first Simpson jurors to speak out seem to be saying that they took quite literally the judge's instruction that they might discount totally the evidence of police officers who lied in some respects. In a sense, they may have become the enforcers of exclusionary rules that many judges no longer follow. Even as individual jurors come forward, however, we are not likely to fully understand the dynamics that led to Simpson's acquittal.

But all who think, as I do, that this verdict is wrong, should not turn their frustration and anger on the criminal jury system itself. Far worse than letting a guilty man go free would be losing faith in, or working fundamental changes on, this most American of institutions.

Even before the Simpson verdicts were in, partly in response to the first Rodney G. King-beating case and the Menendez hung jury, there were legislative moves afoot in California: to do away with the unanimity requirement; to reduce the number of jurors; to abolish peremptory challenges. There are two basic problems with these proposals: First, they rest on a faulty premise that the jury system is broken, and, second, they have the potential to change its operation profoundly in unpredictable ways.

That the jury may make mistakes--or may express through its verdict community sentiment that is, at best, extra-legal--is part of the system, part of the price we pay to have a judgment of the people before we deprive anyone of all liberty. We have always, from the founding of the republic, been willing to sustain the risk that a jury will be wrong. Nothing in the Simpson verdicts changes that.

For every jury that goes awry, there are a hundred that do the right thing. Lawyers on both sides of the criminal system, former jurors and most academics who have studied juries, attest to this. I believe in juries based on my experience as a young lawyer, when I tried many cases--losing some and winning others, representing mostly African American men before mostly African American juries in Washington.

Though losing a verdict is one of life's crushing blows, in virtually all cases I saw close up, the jury made a correct, and wise, decision. More than occasionally, I found that jurors who started with one predisposition--sometimes ones I had chosen because I discerned it--changed their minds through the deliberations.

But no jury in my experience was so mistreated and abused as the Simpson jury. Indeed, it might well be that the mismanagement of the jury helped produce the acquittal. This is the second reason why this case should not be an occasion for sweeping changes: the law of unintended consequences.

We do not know what makes juries work well most of the time--which feature is necessary to proper functioning. The jury comes with certain historical attributes: the mystical number 12; the absolute power, without accountability, to acquit; the judicial filtering of the evidence they will hear; the absence of merit-type qualifications of education or training for service; the requirement that they engage each other to the point of total agreement. No one knows which, if any, of these is essential to the integrity of the institution.

We do know, however, that a jury should be a group put together once in time for a single purpose, that it should be composed of strangers, who know each other only through their deliberations.

This fundamental feature was violated in the Simpson case by a star-struck judge who lost control of the situation. Judge Lance A. Ito caused the jury to spend many hours waiting while he heard and reheard lawyers' arguments, took time off to engage celebrities and, through it all, patronized the jurors--conveying by his tone and manner that their time was not important. He should have taken drastic measures to move the trial along--for example, he might have heard motions in the evenings, and held court on Saturdays. Instead, by his leisurely approach, he violated the very premises of the jury and permitted the possibility that they would become a little band with their own agenda.

But Ito, like the judges in most states, was largely on his own in deciding how to deal with this jury. The statutes, and common law, on the selection, care and instruction of juries are a hodgepodge of piecemeal rules--some adopted in reaction to unpopular verdicts--without concern for how the system, as a whole, will be affected. The most recent addition, for instance, imposed by initiative, removed the right of lawyers to question potential jurors. By the report of both prosecutors and defenders, the unintended consequence of this law has been a dramatic increase in hung juries--because lawyers on both sides are unable to uncover through follow-up questions and direct contact, those who may prove to be unreasoning outliers in jury deliberation.

Rather than such reactive legislation, a comprehensive statute that preserved the jury's basic attributes would be a good outcome of the Simpson verdicts. Such a statute should include, for example, provisions regularizing selection practices, including juror questionnaires tailored to the facts of the individual cases; provision for expedited procedures in cases of sequestration, and for more reasonable compensation and treatment of jurors.

Meanwhile, whether or not we agree with the Simpson verdict, all should accept and respect it. The criminal jury system, right or wrong, is still one of our greatest and most characteristically American institutions. Like universal suffrage--a vote for every citizen regardless of class, race or gender--the jury drawn from the community with absolute power to protect the accused from the state is fundamental to our democracy.*

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