Echo Issue Outline: copyright Echo Education Services
First published in The Echo news digest and newspaper sources index.
Issue outline by J M McInerney
Does the O.J. Simpson trial suggest the American jury system is inadequate?
On October 4, 1995, celebrated black American former footballer player and later actor, O.J. Simpson, was found not guilty of the murders of his ex-wife, Nicole Brown Simpson, and an acquaintance of hers, Ronald Goldman.
The trial, which had been fully televised and had attracted enormous audiences, had run for nine months. The verdict was reached in less than four days.
The not guilty verdict sparked enormous controversy, leading to speculation about the state of race relations in the United States, the condition of that country's law enforcement agencies, the influence of the media and the adequacy of the justice system, particularly the jury system.
Background
Nicole Brown Simpson and Ronald Goldman were fatally stabbed on June 12, 1994.
Shortly after, Ms Simpson's estranged husband was taken into custody after a lengthy police chase which was filmed from a helicopter and nationally telecast.
Simpson employed a team of prominent lawyers to defend him, led by prominent black lawyer, Johnnie Cochran.
The trial, which lasted nine months, was nationally televised.
It had many sensational elements including attacks on the objectivity of the judge, apparently incontrovertible forensic evidence from the prosecution, strong indications of racism and possible evidence tampering by one of the prosecution's key investigators and increasingly more overt references to the part official racism may have played in the establishment of the case against Simpson.
The trial was enormously costly, Simpson's team of 11 lawyers is reputed to have cost him over six million dollars, while the prosecution's case cost over nine million dollars to mount, including 2.6 million on jury sequestration (official accommodation away from media and other influences).
The jury was composed of nine blacks, predominantly female, two whites and one hispanic.
Some years previously, O.J. Simpson had been successfully charged with having beaten his wife, Nicole Simpson, and had been ordered to perform community service as a punishment.
Arguments condemning the American jury system as it operated in the O.J. Simpson trial
It has been claimed that the O.J. Simpson trial suggests that the jury system, as it operates in the United States, has major weaknesses.
The principal weakness suggested is that the jury is capable of being influenced by factors other than the evidence and arguments presented in court.
It is claimed that one of the influences most likely to prejudice the jury is the media coverage a case receives.
It has been argued that in as widely publicised a trial as Simpson's, the potential for the jury to be swayed by the media is very great.
The Australian, in its editorial of October 5, commented, `From the moment 16 months ago when cameras tracked the freeway pursuit of Mr Simpson by a posse of police cars through to yesterday's delivery of the verdict, which was the most watched event in American history, this has been a case where the presence of television has been a pervasive part of the proceedings.'
Though the jury was sequestered (provided with private, separate accommodation and deliberately denied access to television and newspaper coverage of the trial) jurors were allowed visits from their spouses and partners from January, 1995.
It has been suggested that jurors could have been exposed to media inspired opinions on the case during such visits.
It has also been claimed that juries are particularly susceptible to deliberate and sometimes improper or illegal manipulation.
The Sunday Age of October 8 reported allegations that someone acting for the defence telephoned the spouses or close relatives of the nine blacks on the jury in an attempt to gain the jury's sympathy for the defendant.
It has also been claimed that jurors are able to be swayed by persuasive, but not necessarily legally compelling, arguments put by either the defence or the prosecution.
In the Simpson case it has been suggested that the final speech of the chief defence counsel, Mr Johnnie Cochran, in which he invited the jury to use their verdict to `send a message' against police corruption and racism, was improper.
It has been suggested that the jury's probable opposition to racism was being exploited in an attempt to have them cast their verdict based on a condemnation of police racism, rather than on a full consideration of the evidence.
Marcia Clark, the lead prosecutor, protested to the judge that Johnnie Cochran's final speech to the jury came close to `nullification'.
Jury nullification occurs when a jury ignores evidence and the law and votes according to conscience or political principle.
A Supreme Court ruling late last century outlawed this practice in the United States.
Those who claim that jury nullification occurred in the Simpson verdict point to the short time, some three hours, that the jury took to arrive at its verdict.
According to critics of the jury's conduct in this trial, that is insufficient time to consider the 1,115 pieces of evidence that were presented and the testimony of the 126 witnesses who were called.
Critics claim that the jury must have cast their verdict based on prejudice or principle, rather than a weighing of the respective cases.
It has also been suggested that the majority black jury may have had an automatic sympathy for O.J. Simpson as a black defendant.
Arguments supporting the American jury system as it operated in the O.J. Simpson trial
In defence of the United States jury system, particularly as it operated within the O.J. Simpson case, it has been noted that the juries do well to be able to arrive at a unanimous verdicts.
Professor Norman Garland of Southwestern University Law School has claimed, `If the verdict (in the Simpson trial) shows anything, it shows that a unanimous verdict is possible among a group of people who seemed deeply divided.'
Professor Garland went on to say, `My experience with juries over almost 30 years shows that they really do rise to the occasion.'
Those who defend the performance of the jury further claim that their verdict was based on a reasonable scepticism about the evidence offered to establish Simpson's guilt.
Juror Lionel Cryer claimed, after the trial was over, `There was a problem with what was being presented to the prosecutors for testing. We felt there were a lot of opportunities for contamination of evidence.'
There were two reasons offered as to why jurors were suspicious that the evidence may have been tampered with.
One of the jurors, Mrs Anise Aschenbach, is reported to have told her daughter that there was not enough evidence and when asked why she is said to have answered, `Because of Mark Fuhrman'.
Tapes were played during the trial which revealed Detective Mark Fuhrman, one of the key investigators for the prosecution, referring to blacks as `niggers' and acknowledging that he had planted evidence against black defendants in other cases.
It would appear that at least for Mrs Aschenbach this provided grounds to distrust much of the physical evidence offered by the prosecution.
Other jurors have discounted the impact of Mark Fuhrman's apparent racism upon them and have instead focussed on other reasons for distrusting the physical evidence.
Juror, Brenda Moran, has claimed , `The fact that Detective Mark Fuhrman was a racist had no effect on our decision.'
Brenda Moran has said that she was lead to believe that the blood-soaked glove found on Simpson's property had been planted because there was no blood anywhere near it. She also doubted that the glove was in fact Simpson's as it did not fit when he attempted to put it on in court.
Referring both to the blood-stained glove and to the prosecution case as a whole, Brenda Moran claimed, `In plain English, the glove did not fit.'
Countering specific allegations that the jury had found Simpson not guilty because he is black and a majority of the jury was also black, Brenda Moran claimed, `We were fair. It wasn't a matter of favouritism. It was a matter of evidence. I did not have enough evidence to convince me that he was guilty.'
No juror has echoed the closing remarks of counsel Johnnie Cochran to confirm, as critics of the verdict have suggested, that repudiating police corruption and racism played any part in the decision the jury reached.
Finally, in response to claims that the jury reached its verdict too quickly to have been able to have properly considered the evidence, Ms Moran has said that the lengthy trial itself provided plenty of opportunity for the jury to consider what was presented to it.
`We had nine months to weigh the evidence, so we knew. It didn't take us nine months to figure out. We're not that ignorant,' Ms Moran stated.
Further implications
The further implications of this case are potentially enormous.
Some social commentators have claimed that the verdict has revealed an enormous chasm between black and white America.
It has been claimed that the majority of black Americans apparently welcomed the verdict, apparently partly as some small reparation for a legal system that normally operates against them.
White Americans, on the other hand, are claimed to see the verdict as an indication of the extent to which wealth can buy an acquittal in the United States.
Above and beyond this it has been claimed that the trial and verdict appear to have crystalised racial divisions in the United States.
Some commentators have gone so far as to suggest that black America is indifferent to Simpson's guilt or innocence and is simply gratified that a black man has apparently survived the system.
Liberal white America is said to be staggered both at what many believe is a miscarriage of justice and at the obvious alienation of black America from the nation's justice system.
There are also apparently those for whom the image of O.J. Simpson as wife-beater and dual murderer serves only to confirm their prejudices about black men, no matter how successful.
Deeply disturbing for the American legal system and especially the Los Angeles Police Department is the ineptitude and potential corruption that has been revealed within it.
Equally disturbing is the obvious and apparently almost total lack of faith that Los Angeles blacks have in their police force.
It has been suggested that such a wide-spread lack of confidence augurs poorly for future prosecution cases.
Alan Dershowitz, one of those who served in the O.J. Simpson defence team has claimed, `Unless prosecutors, police and judges begin to take police perjury more seriously, we will see more acquittals based on juror distrust of prosecution evidence.'
Unless a jury trust the calibre of the prosecution's evidence a conviction is impossible.
It is also feared that there may be some swing back with majority white juries becoming even more ready than they are currently to convict black defendants.
There are those who have suggests that if the O.J. Simpson case is a victory for black America before the legal system, it is a victory only for wealthy black America, because, for those without the money to wage the sort of defence O.J. Simpson did it may now be even harder to obtain justice.
There are those who are speculating that the O.J. Simpson verdict may encourage support for none majority verdicts, presumably because it is believed that in most cases this is more likely to result in a conviction.
There is also discussion about limiting `peremptory challenges' that allow lawyers to exclude jurors on the basis of race.
Finally there has been much discussion as to whether it should continue to be possible to televise trials in the United States.
It seems likely that the controversy surrounding the impact of televising the Simpson trial may bring to a speedy end tentative attempts being made in Australia to allow some trials to be televised.
Sources
The Age
5/10/95 page 1 and 11 news item by Pilita Clark, `Race the key in trial and aftermath'
5/10/95 page 1 news item by Kendall Hill, `TV court "not right" for Australia'
5/10/95 page 10 analysis by Christopher Reed, `A verdict based on other reasons'
8/10/95 news item by Chris Reed, `"Dream team" faces jury probe'
The Australian
4/10/95 page 1 news item by Robert Lusetich, `O.J.'s fate a worldwide waiting game'
4/10/95 page 8 news item by Robert Lusetich, `O.J. trial's finale sets TV ratings record'
5/10/95 page 8 analysis by Susan Wyndham, `Police blunders sank case, say lawyers'
5/10/95 analysis by Robert Lusetich, `O.J. and the morning after'
5/10/95 page 10 editorial, `OJ, the police, and television'
6/10/95 page 1 news item by Robert Lusetich, `Lawyer told OJ to admit killing'
6/10/95 page 13 comment and analysis by Kate Legge, `An unnatural thirst for Juice'
6/10/95 page 13 comment and analysis by Ben Macintyre, `A tragedy in black and white'
7/10/95 page 23 comment and analysis by Randall Kennedy, `How the system failed America'
7/10/95 page 23 comment and analysis by Alan Dershowitz, `Police perjury puts justice in jeopardy'
The Bulletin
17/10/95 page 52 comment by Thomas Keneally, `Race as TV sport has no winners'
The Herald Sun
4/10/95 pages 1 and 4 news item by Steve O'Baugh, `Day of justice arrives for O.J.'
4/10/95 page 4 news item by Steve O'Baugh, `Infamous initials give rise to riches'
4/10/95 pages 4 and 5 news item by Steve O'Baugh, `US hangs on trial of the century'
5/10/95 pages 1 and 2, news item by Steve O'Baugh, `Mr Millions free to make his fortune'
5/10/95 page 4 news item by Steve O'Baugh, `Racist slur officer lies low'
6/10/95 page 9 news item by Steve O'Baugh, `Juror denies race a factor in trial'
8/10/95 page 41 comment and analysis by Magnus Clarke, `Justice runs out of juice'
What they said ...
`If you have enough money in this country, obviously you can hack up your wife'
Jewel Holt, a white TV producer
`This (the O.J. Simpson verdict) demonstrates that there is a chance for the system to work'
John Mack, president of the Los Angeles division of the black association, the Urban League