After every controversial verdict in a celebrated case, critics begin to dissect what went wrong with the jury. The O.J. Simpson trial was no exception.
The long separation from family and friends took a heavy toll. Juror Lionel Cryer told The Times that sequestration made him "stir-crazy." He had to be treated at a hospital for high blood pressure during the trial.
In fact, some lawyers and social scientists blame the misery of the marathon sequestration for what many see as the unseemly rapidity of the jurors' deliberations--if not the verdict itself. The jurors spent only about four hours weighing the evidence before deciding Simpson was not guilty.
"I don't see how they could have done a good job of evaluating both sides," said Neil Vidmar, a jury expert at Duke University School of Law. "The lesson is that sequestration is terribly difficult, a difficult thing on jurors when it lasts this long."
When Judge Lance A. Ito declined to read the verdicts as soon as they were reached, forcing the jury to spend yet another night in a Downtown Los Angeles hotel, the panel felt crushing disappointment, so eager were jurors to get home, Cryer said.
"I'll be honest," Cryer said, "that sequestration process--the ordeal itself--I don't know if it's more beneficial to have the process and get a result [quick deliberation] like this or un-sequester the jury and take the good with the evil of that."
Although more lengthy deliberations might not have changed the verdicts, they could have inspired more confidence in it, experts said. "I think a number of people will assume they simply wanted to get out of there," said Southwestern University School of Law Prof. Myrna Raeder. "The whole point of jury deliberations is to get out people's differing views."
Some analysts believe judges should carefully examine the consequences of sequestration before allowing it again. Sequestration "breeds a kind of insanity," said Georgetown University law professor Paul Rothstein. "Do you really want cases decided in a state of insanity by jurors?"
Rather than isolate jurors, Rothstein said, they should be trusted to be "smart enough to separate the wheat from the chaff in terms of what they hear. It's the lesser of two evils to just let them live in society."
As a result of the Simpson trial, the National Center for State Courts plans to rewrite its chapter on sequestration in a guidebook for judges managing notorious cases. Tom Munsterman, director of the organization's Center for Jury Studies, said the new version will recommend training and preparation for bailiffs who guard sequestered jurors and suggest including jurors in making the sequestration rules.
Because of its many pitfalls, sequestration is rarely ordered. "It is minuscule," said Munsterman. He said he would be surprised if there are 100 sequestered juries a year out of the 150,000 civil and criminal state and federal jury trials nationwide.
But that is little comfort to those who are removed from their homes, confined to a hotel and forced to endure monitored telephone calls and visits with family and censored newspapers and television. In one trial, the sequestered jurors so resented their isolation that they conspired to build a TV antenna out of a coat hanger to watch forbidden programs, Munsterman said.
Although Simpson jurors said they did not discuss the case prior to deliberations, Munsterman believes that they communicated in other ways because of their sequestration. "There is no question that the deliberations began a long time ago in that the jurors, in being together that closely, were able to communicate without violating the rule" prohibiting discussion, he said.
"You come in after a day of the coroner's testimony, raise your eyes and say, 'How many more days of this are we going to have?' You begin to sense how the other jurors are reacting to the evidence. And you don't have that in a non-sequestered jury."
Some analysts believe juries, whether sequestered or not, should be allowed to discuss evidence among themselves while a trial is ongoing, a reform that proponents say reduces stress and improves juror memory.
The Arizona Supreme Court has approved a recommendation of a blue-ribbon panel of the state's judges and lawyers to give jurors this opportunity in all civil cases and some judges have done it in criminal cases, although convictions obtained in at least two of those cases are on appeal.
Tucson Superior Court Judge Michael Brown said the practice "worked out fine" when he permitted jurors in two first-degree murder cases to talk about the evidence as it was being presented, rather than having to wait until the end of the trial.
"They were obliged to discuss the evidence only in the jury room and only when all the jurors were present and they were obliged not to form any final opinions. I think we can safely stop trying to treat jurors as if they were congenital idiots or idiot savants. They're able to make all kinds of distinctions and do so with great capability and generally excellent results. All we need to do is let them have a little help to do better what they do now."
U.S. District Judge William Schwarzer of San Francisco, who recently stepped down as director of the Federal Judicial Center, also believes that it makes sense to allow pre-deliberation discussions among jurors in the controlled environment of the jury room.
"It's unrealistic to expect that jurors will not discuss the case among themselves and it's undesirable to give instructions that jurors won't be able to live up to," Schwarzer said.
But critics fear that such discussions may polarize jurors, cause them to adopt premature conclusions or allow stronger panel members to dominate others. In California, a law dating back to 1872 has required judges to admonish jurors not to discuss the case until deliberations.
Any change "would have to be done with very considerable care," said state appeals court Justice Norman Epstein, an expert on California criminal procedure and its evolution.
The impulse to make such a change is understandable, said Judy Rothschild, a consultant with the Oakland-based National Jury Project/West, because "the courtroom is one of the worst learning environments in the world. Usually, you can't ask questions. You can't raise your hand. Most jurors who are not part of a long trial are baffled by the whole process."
But defense lawyers are particularly resistant to such a change because they say it will prompt jurors to make up their minds early--before the defense gets to make its points.
"In our instant technology society, where we all sit around with television clickers and channel surf, if something doesn't capture our attention right away we move along to the next channel," said Alexandria, Va., attorney William Moffitt, whose high-profile clients have included former United Way President William Aramony. "Because of the way we look at information, it's real important to make people wait until the end. The admonition has a real place in the process."
Ironically, although the Simpson jury rapidly reached a unanimous verdict, the case still could lend weight to a movement seeking to establish non-unanimous verdicts for most criminal trials.
Two such proposals pending in the California Legislature would permit 11-1 or 10-2 verdicts in all misdemeanor and felony cases, except death penalty trials. An initiative to sanction 10-2 verdicts may be headed for the November, 1996, ballot.
But San Diego criminal defense attorney Elizabeth Semel said the Simpson verdicts proved that controversial cases do not necessarily lead to split verdicts.
"What this shows us is that juries can reach unanimous decisions, even in cases that involve hot-button social issues, whether it's spousal abuse, police misconduct, race-based discrimination," she said.
Others contend that hung juries--panels that are unable to achieve unanimity and, therefore, trigger a mistrial--remain a serious problem in California.
About 2.5% of juries hang each year in federal criminal cases, and about 5% hang in state courts nationwide. In California, however, studies have found that criminal trials deadlock at rates between 10% and 15% a year.
No one really knows why California has higher rates. Some attribute it to the state's cultural climate and greater diversity, which makes consensus of all sorts less common than it is in more homogeneous states.