THE SIMPSON LEGACY / LOS ANGELES TIMES SPECIAL REPORT : Trial & Error: FOCUS SHIFTS TO A JUSTICE SYSTEM AND ITS FLAWS

With the “Trial of the Century” concluded, four experts offer their perspective on justice, change and whether the system could survive if everyone put on an O.J. Simpson-style defense.

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PETER ARENELLA, UCLA Law Professor

“People without power rioted when a Simi Valley jury acquitted police officers in the first Rodney King beating case. Now, people with power are engaging in their own version of hysteria in response to what they perceive as an unjust verdict in the Simpson trial. Governor Wilson’s call to ban cameras from all criminal courtrooms and to abolish the unanimous jury verdict exemplifies this overreaction.

What is particularly troubling is that such proposals are triggered by a trial that is a complete aberration from how our system usually functions. Most cases are resolved by plea bargains, and the few cases that go to trial are completed, on average, in less than a month. Why? Because most defendants are poor and lack the resources to fight the state on anything close to an equal footing. Public defenders may “go to school” on Barry Scheck, but an effective challenge to the type of scientific evidence martialed against O.J. requires something public defenders don’t have: money to purchase expert testimony.

Wilson’s “reforms” do not respond to the real problems raised by the Simpson case. Permitting jury verdicts by a “super-majority” vote of 10-2 would have led to the same result, but in an even shorter time because the majority would not have needed to address the concerns of the two jurors who first voted for a conviction. In most jury trials, the unanimity requirement fosters meaningful deliberations, because people with diverse points of view must listen to each other to reach a consensus. Barring cameras from all courtrooms is an overreaction because some high-profile cases such as the King trial merit full public scrutiny.

What are the real lessons to be drawn from the Simpson trial? The LAPD lab needs more resources. Jury sequestration should eliminated. Prosecutors shouldn’t jeopardize their own credibility by calling police officers when they have good reason to suspect that the officer might lie to the jury. Defense attorneys shouldn’t air their personal dirty laundry or disclose private disputes concerning alternative legal strategies. Trial judges must use their power to stop attorneys from engaging in needless bickering and repetitive arguments. And if you don’t like the jury’s verdict, stop shirking your own civic responsibility to serve on juries and demand reforms that make such service possible for all members of society.”

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Laurie Levenson, Loyola Law School professor and former federal prosecutor.

“Face it. It’s not the “system,” it’s us and we have big problems. The criminal justice system was designed for intelligent jurors who are patient and unbiased enough to make just decisions, for lawyers ethical enough to fight hard but fair, for judges wise enough to make a trial more than a dogfight, and for a community cohesive enough to trust the judgment of its fellow citizens. In other words, the criminal justice system was never designed for the O.J. Simpson case, nor should we design a system around it.

Don’t expect any quick fixes. The LAPD won’t change overnight, racism won’t magically disappear and jurors will never be eager to master the subtleties of DNA. But there are things we can do: 1. Stop idol-worship: Simpson is not a hero; he is a wife-beater. 2. Serve on juries. That means everyone. We can’t relegate jury service to those who have nothing better to do. Make trials short enough so that people don’t have to sacrifice their jobs or family to do their duty. 3. Talk to your neighbor. Don’t let others divide us. Criminal trials cannot solve our social ills; they can only show us what they are. 4. Demand the best from everyone in the system--the police, the lawyers, the judge, the jury--but do more: Invest financially in their success and educate jurors as to how to do their job. Consider also permitting jurors to ask questions during trials so we don’t have surprises at the end. Don’t excuse jurors because they know too much. Excuse them only for bias. 5. Bring experts under the purview of the court so they are not hired guns and let both sides work with them. And beware of false cures: Question legislators claiming to have all the answers. The Constitution, not campaign rhetoric, should govern us.

Non-unanimous juries will only insure we don’t talk to one another. Don’t blame the messenger. Television, like X-rays, only reveals our diseases; it doesn’t cause them. Don’t treat trials like sporting events. It’s not who scored more points; it’s who committed the crime. Finally, think for yourself. Don’t let the cynics be your guide. If you work towards justice, it will come.”

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GERALD L. CHALEFF, criminal defense lawyer and former president of the Los Angeles County Bar Assn.

“Clearly, the system could not survive if everyone went to trial--no less had a nine-month trial like O.J. Simpson did. If every trial took nine months, the system would break down. There would not be the resources or capacity to try all the criminal cases, no less the civil cases. The system, as it exists now, asssumes that at least 90% of cases end up in a plea bargain. Without plea bargaining, the system couldn’t operate. However, in a perfect world everyone charged with a crime would have the resources and fortitude to conduct a defense like O.J. got. In fact, it’s how the system is supposed to operate, with each piece of prosecution evidence challenged to the fullest if the defense so chooses.

I’m not sure you can learn valuable lessons from an aberration like this case. When you try to fix or alter a system based on the most extreme or aberrant case you tend to do more harm than good. The Simpson case may have raised questions that should be discussed--but discussed in the context of how they affect the 99.9% of cases that aren’t The Trial of The Century. I am opposed to curtailing the use of experts--including the use of jury consultants--or limiting peremptory challenges or the imposition of less-than-unanimous jury verdicts.

Don’t forget, most cases won’t be televised, but the camera should be there in those cases which are important either because of the issues or the people involved. Justice done in private is not as fair as justice done in public. When the trial is shown live, the viewer can make an independent determination of a witness’ demeanor or evidence’s reliability. At least people got to see whether the gloves fit or not and did not have to rely on someone else’s description. Imagine how the verdict in the Simpson case would have been received if there had been no live television coverage and the public had to rely on the second- or third-hand accounts of reporters in the courtroom. The dissatisfaction with this verdict would be excacerbated.”

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JOHN BURRIS, Oakland-based civil rights and criminal defense lawyer.

“The criminal justice system could not survive if every African-American had a race-based defense like O.J. Simpson had. But in most cases you couldn’t make these arguments because of other evidence. Very few Mark Fuhrmans surface; but even if that happens, if there is other independent evidence you lose. I’ve lost cases with racist cops because of other evidence. In this case if there had been an eyewitness identification or a murder weapon or bloody clothes or uncontaminated crime scenes, the issues of Fuhrman, race and police would not have been paramount.

Still, I fear that the freedom of one man--O.J.--may cause others to be convicted who use similar defenses. The system will suffer a backlash because defenses based on police misconduct and racial prejudice may fall on deaf ears by cynical jurors, given the bitter voices I’ve heard on talk radio since the verdict. That’s a tremendous price. That will hurt the average guy. Remember, after Dan White’s lawyer successfully used the “Twinkie” defense in his trial for murdering San Francisco Mayor George Moscone and Supervisor Harvey Milk, it hurt other defendants because jurors became cynical about any argument that went to a diminished mental state.

Some people say lawyers should not push buttons that may help their client but might have a hurtful societal impact. But if you’re the lawyer it’s your obligation to be zealous for your client. In civil rights cases alleging police brutality, I always say you have to make the case bigger than the facts because there is a question of accountability, there is a question of sending a message because you are asking a jury to reject lying statements by officers and that’s not easy.

In many black communities, Johnnie Cochran’s social commentary was paramount to them--an expression of pent-up frustrations. There is a genuine perception in the African-American community that O.J. was an innocent man set up by law enforcement to take him down. By saying what he said Cochran was telling people there was something amiss. Black people who have been mistreated by the police clearly understood that and so did the jury. The problem is the vast majority of people who will serve on future juries didn’t understand this. They haven’t seen or experienced those injustices”.

Compiled by HENRY WEINSTEIN/Times Legal Affairs Writer