The only people whose judgment of winners and losers in a trial matters are, of course, the jurors. And the only time that matters is at the very end.
Throughout the Simpson trial, but especially as the trial neared its conclusion, reporters and the lawyers and law professors who served as expert commentators were increasingly inclined to indulge in what Margolick, in an Aug. 12 New York Times story, derided as "the pseudoscience of reading jurors."
They speculated on how particular witnesses and bits of testimony might or might not be influencing the jurors, and their stories began to be dotted with such observations as "jurors did not seem particularly moved by that evidence" and "jurors clearly found the physician's testimony engaging" and "the jury followed Cochran's examination . . . with obvious interest."
Even Margolick tried to have it both ways.
In a story that was published on the day that deliberations actually began, he returned to the theme of jury-reading as pseudoscience, gently poking fun at those who tried to read jurors. ("The panelists have been scrutinized for every smile, every frown, furrow and fluttering eyelid,") Of course, amid several caveats, he also offered his own insights into the possible inclinations of several jurors. (Juror No. 1 "could be a crucial juror for the prosecution," he wrote.)
But the "one immutable rule" for trial lawyers is that "you never know what the jury's going to do," said attorney Gerald Chaleff, and he suggested that journalists who try to guess how jurors might have perceived a particular witness are making "a giant mistake."
"What is the jury reaction?" asks Cynthia McFadden of ABC News. "I don't know. . . . It's irresistible to ask [that question], but it's important not to answer it."
Many TV commentators seemed to feel, however, that one of the areas of expertise for which they were being paid was their presumed ability to read jurors' minds. When Judge Ito announced last Monday that jurors had reached a verdict after less than four hours of deliberations and that the verdicts would be read the next morning, the experts were positively beside themselves trying to figure out what the jury had decided.
Traditionally, some said, short deliberations mean an acquittal.
Traditionally, others said, short deliberations mean a conviction.
The jurors didn't make eye contact with Simpson. Conviction.
They laughed. Acquittal.
They asked to have a particular bit of testimony from a prosecution witness read back to them. Conviction.
But they stopped the reading before it got to a critical point. Acquittal.
Virtually all the commentators said that any attempt to guess how the jurors had voted was the equivalent of "reading tea leaves." Then most of them peered deeply into the bottoms of their teacups and began reading for all they were worth.
Some reporters, sitting in court day after day, week after week, month after month, watching the jurors, talking to the attorneys and to one another, began to feel that they knew how to read the jurors. But most members of the Simpson press corps said the Simpson jury was especially difficult to read. In interviews, the described the jurors as "determinedly impassive" (Fred Graham, CNN), "stone-faced" (Bill Whitaker, CBS News) and "the least reactive jury I've ever seen" (McFadden). Margolick wrote that "not since the Mona Lisa have people appeared so enigmatic."
One of the primary obligations of virtually every reporter who took one of the 24 press seats in the courtroom every day was to watch the jury, to note every note, every twitch, every nod.
The better, more careful reporters tried to limit themselves to describing the physical reactions of the jurors. Did they smile, nod off or look at the defendant? Reporters were especially interested in whether, and how often, the jurors took notes. But note taking didn't necessarily mean anything.
Were jurors frantically scribbling notes because they found a witness' testimony persuasive? Or because they found it preposterous? Did they take notes because they understood a particular scientific explanation--or because they didn't understand it? Were they taking notes to use as ammunition or so they could later ask for clarification or explanation? If they weren't taking notes, was it because they were tired? Or bored? Or because they were transfixed (or repelled) by the testimony?
Linda Deutsch of Associated Press said that when she covered the Angela Davis murder and kidnaping trial in 1972, one juror took "copious notes" when the prosecution spoke, but when the defense spoke, she put her notebook down, put her pen away and didn't take a note.
"We thought that was so obvious; she was obviously a [pro-] prosecution juror," Deutsch said.
After Davis was acquitted, Deutsch asked the juror about her note taking, and the juror said, "I was so convinced of the defense case from the beginning that I thought I should give [the prosecution] . . . the benefit of the doubt" and take down everything they said.
Even when reporters and commentators weren't actually describing the reactions of jurors, they were implicitly assessing those reactions by their continuing analyses of who "won" or "lost" on a given day.
"The only thing Americans have in common anymore are sports generally, so everything is determined in terms of sports," attorney Harland W. Braun said.
Live TV coverage of the trial probably made this kind of analysis inevitable. People could see for themselves what happened that day, either live or on one of the evening wrap-up shows; the reporters and legal analysts had to tell them why it had happened and what it meant.
Through much of the trial, Newsweek published what it called a "Trial Scorecard" almost every week, awarding from one to four gavels to the defense, the prosecution (and the judge), based on their perceived performance that week. As the trial went on, Stryker McGuire, Newsweek's West Coast editor, said he found the comments that accompanied the awarding of the gavels increasingly "catty and in poor taste."
Newsweek dropped the gavels for two months, then resumed them Sept. 25.
Other news organizations used more conventional techniques of identifying daily winners and losers, including interviews with defense lawyers, prosecutors and law professors, and some could barely wait for the trial to begin so they could start keeping score.
Brian Kelberg, one of the prosecutors in the Simpson case, said this determination to decide which side did better on a given day or week was "misleading to the public."
It is difficult for a reporter or even another lawyer working as a commentator to know the long-term strategic implications of a particular tactic or question or bit of testimony on a given day in a lengthy trial.
Perhaps the best example of that in the Simpson trial was the coverage of F. Lee Bailey's cross-examination of Mark Fuhrman last March. Bailey had pronounced himself eager to "dismantle" Fuhrman, and the media built up the confrontation, "the cross-examination for the ages," as the Washington Post subsequently put it.
The defense argued that Fuhrman was a racist cop whose hatred of African Americans--especially those who married white women--had prompted him to plant the bloody glove that prosecutors said linked O.J. Simpson to the murders. But when Fuhrman took the witness stand, and Bailey began questioning him, he denied planting evidence, denied being a racist, denied even having used the word "nigger" in the previous 10 years.
Bailey kept flailing away. Fuhrman remained firm in his denials. When Bailey's cross-examination was over, the media rendered its verdict.
The Boston Globe said, "Fuhrman not only withstood Bailey's onslaught, but turned out to be the prosecution's best witness to date."
The Washington Post said "Fuhrman managed to elude capture." Bailey's cross-examination ended up looking like "a desperate and flimsy patchwork."
Time magazine said Bailey had been "thrown off-balance when Fuhrman steadfastly withstood a grueling interrogation."
The Los Angeles Times, while saying that Fuhrman had "walked away with few apparent bruises," tried to put the cross-examination in perspective: "But the next time the jury hears about Fuhrman, things may be considerably rougher," The Times said.
The Times then quoted Albert De Blanc Jr., a criminal defense attorney and frequent media commentator, as saying that Bailey's questions had "opened the door for the defense to produce contradictory and impeaching evidence."
Simpson's lawyers, The Times said, "can be expected to bring out a string of witnesses who will contend that Fuhrman used racial epithets and expressed particular venom about interracial couples."
Four months later, the Fuhrman tapes surfaced. A month after that, in open court, Fuhrman's own voice could be heard uttering the word "nigger" 41 times. Several times he boasted of his willingness to manufacture evidence.
Then the defense called several witnesses to the stand, all swearing under oath that Fuhrman had used the word "nigger."
The defense wanted to recall Fuhrman to the witness stand. Confronted with a choice between admitting he had lied, under oath, to Bailey or contradicting his own voice, Fuhrman took the 5th Amendment, out of the presence of the jury, and Judge Ito ruled that he could not be forced to appear in front of the jury.
It was Bailey's seemingly ineffectual questioning back in March--the cross-examination that most of the media had so derided--that ultimately gave the case its most dramatic and potentially crucial moment.
Few in the media were as embarrassed by this turn of events as James Willwerth, a longtime distinguished reporter for Time magazine.
In the same Time story that covered Bailey's cross-examination of Fuhrman, Willwerth reported that "Many people who know Fuhrman, including African American friends, a black former partner and black crime victims he has helped, insisted he is not, and never was, a racist."
The story quoted Fuhrman's ex-wife as saying that his experience with the LAPD gang detail "nearly made him snap" but that he had gone to a psychiatrist and "got his act together." She said she was "very sensitive" to racism and would never have married a racist.
In an interview with the Los Angeles Times four months after that story ran--and, as it turned out, just days before knowledge of the Fuhrman tapes became public--Willwerth repeated essentially what he had said in the story.
Fuhrman, he said, had been "made a victim in this thing." Willwerth said he had "no doubt" that Fuhrman was "a foulmouthed street cop, particularly during that period of time . . . a nasty, anti-gang cop who didn't like the people he was dealing with. He probably called them a lot of racist names . . . ." Willwerth said, but "his prejudices were class, not race. He was very, very, very angry at the black and Hispanic criminal class, when he was working black and Hispanic gangs."
After seeing a psychiatrist "twice a week for more then two years," Willwerth said, Fuhrman "straightened out his act . . . got himself transferred . . . to the Westside and . . . became a rather highly admired cop."
Willwerth complained that he had had "an extremely difficult time" getting his editors to publish his story.
"It was information that ran against the grain of public sentiment," he said. "We're all looking around for a nasty racist to pillory . . . particularly in Los Angeles, with the police force that beat up Rodney King."
Not only were Time editors "very, very nervous about defending Mark Fuhrman," Willwerth said, but others in the press didn't want to pursue his story after it was published.
With one exception, he said at the time, "Nobody wants to touch it."
The "one exception" was Art Harris of CNN.
Three times in eight months before Willwerth's story, Harris had done stories that included interviews with African Americans who had dealt with Fuhrman and said he was not a racist--or at least that he had not been racist in his dealings with them.
Harris said he thought it was "fascinating" that African Americans were willing to "come forward with their views at some risk to themselves," and since he thought two of them were possible rebuttal witnesses for the prosecution, "what they had to say was an interesting, legitimate story."
But apart from Harris, Willwerth said, no one in the media wanted to examine the possibility that Fuhrman might not be a "white supremacist conspirator."
"I guess it's because good liberals, which we all are in the press . . . don't defend conservative cops."
When Willwerth heard about the contents of the Fuhrman tapes, he was stunned. And mortified.
"My sources on my story included a black detective who rode with him for a year and a half and a black prosecutor who baby-sat his children, had dinner at his house, worked countless cases with him and told me that 'unless he's Dr. Jekyl and Mr. Hyde, the guy I know is not a racist,' " Willwerth said. "They really, genuinely seemed to believe what they told me. That has always counted for a lot with me when I evaluate a source's credibility.
"After the tapes came out, I went back to my sources," he said. "They all stood by their original stories. They were as shocked as I was.
"I made a terrible mistake," Willwerth said. "But I learned something: Even when your sources are absolutely convinced they're right, they may be wrong."
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Fuhrman vs. Bailey
When famed attorney F. Lee Bailey crossexamined former LAPD Detective Mark Fuhrman in March, most of the news media judged Fuhrman the winner of the verbal battle. But when tapes of Fuhrman's racial slurs surfaced four months later, the significance of Bailey8s questions became dramatically apparent, and Fuhrman too the 5th Amendment rather than face further questioning.