Ouster of Black Panelist Decried

O.J. Simpson’s top lawyer Wednesday accused his legal foes of ousting an African American juror solely because of her race, but a judge ruled that the plaintiffs had valid reasons for dismissing the panelist in question.

The accusation--raised during a closed-door conference with the judge--came in the middle of a fast-paced day in which the plaintiffs bumped five blacks off the panel and the defense dismissed three whites. Lawyers refused to discuss the matter in public, although chief defense counsel Robert C. Baker confirmed the substance of his complaint.

The defense’s challenge arose after the plaintiffs moved to dismiss Juror 28, a young black woman who said she was studying for her master’s degree in psychology and helping her father run a homeless shelter. A former clerk in Small Claims Court, the juror said she used to date a professional football player for the Los Angeles Rams but did not know Simpson.

As the woman picked up her purse and walked out of the courtroom, Baker angrily called for a sidebar conference. Superior Court Judge Hiroshi Fujisaki let the woman go, but motioned for the attorneys to follow him into his chambers for a private hearing.

Although the debate played out behind closed doors, it mirrored the very public discussion of race that has dominated much of the monthlong jury selection process.

Nearly all prospective panelists have said they noticed--and were perplexed by--the sharp racial schism that Simpson’s criminal trial engendered. And analysts predicted they would notice as well the clear pattern of Simpson’s lawyers excusing whites while attorneys for the families of murder victims Ronald Lyle Goldman and Nicole Brown Simpson dismissed blacks.

“Jurors will look at who’s in and who’s out and draw their own conclusions,” said veteran litigator Brian Hennigan, who has argued both criminal and civil cases.

Often, he said, dismissing a certain juror sends the remaining panelists subtle messages about an attorney’s view of his case.

In a trial involving a complicated financial transaction, for example, jurors would take note if one side excused a scholar with a PhD in economics--figuring that if they really believed in their case, they would not be so eager to bump sophisticated, knowledgeable jurors. “Courtroom wisdom says that any time you excuse a juror from a panel, other jurors will look at who excused him, and they might draw an inference,” Hennigan said. “They’re not stupid.”

In both civil and criminal cases, attorneys on both sides get a limited number of “peremptory challenges”--basically, free passes to dismiss any juror they choose. Normally they do not have to state any reason for ousting a certain panelist. But the U.S. Supreme Court has ruled that lawyers cannot boot jurors because of race or gender; they must have some other factor in mind.

A broad range of reasons has been deemed acceptable for ousting jurors, including age, area of residence and profession. The Supreme Court has even upheld a prosecutor’s right to exclude a man solely because of his “unruly hair and unkempt appearance,” according to USC law professor Erwin Chemerinsky.

The only real guideline is that attorneys must be consistent: They cannot bump a black juror because he’s 70 years old and then leave white senior citizens on the panel. But in general, Chemerinsky said, it’s up to the judge to decide whether the stated reason for excusing a juror is valid, or simply a “transparent excuse for removing someone because of race.”

The plaintiffs exercised five of their eight peremptory challenges Wednesday, all on African Americans. In addition to the graduate student, they dismissed a male nurse who had studied chemistry at Simpson’s alma mater, USC; a woman who had said she prayed Simpson was not guilty; a man who acknowledged he was a big USC football fan; and a woman who had been a victim of the so-called “pillowcase rapist” years ago.

The defense excused three whites: a paralegal who said she frequently did administrative or clerical work on civil cases; a female flight attendant who had donated shampoo samples to a battered women’s shelter; and a man who had expressed a strong belief in Simpson’s guilt.

Attorneys can use their remaining peremptory challenges to remove any of the 11 panelists now in the jury box, including seven whites, a Latina, two black women and a man who described himself as half-black, half-Asian. As each juror is dismissed, the judge randomly fills the seat with another panelist from a pool of 102.

A final panel of a dozen jurors could be in place by noon today, defense lawyers said. They would then follow the same process in selecting eight alternates. If there are no major snags, attorneys expect to launch opening statements Monday.