Has our system of justice ever worked?
Some experts think that these doubts are healthy. 'The American jury system does not work to free the innocent and punish the guilty in an efficient and humane manner,' writes Michael Lind in The New Republic (Oct. 23, 1995). 'It never has. Juries have always abused the institution, sacrificing impartial justice to political or ethnic goals. In colonial America, the jury gave colonists a way to subvert local overlords appointed by London. From independence until the civil rights revolution, the jury was a means by which white bigots legally lynched Indians, blacks, and Asians (or acquitted their white murderers). Today urban black juries all too often put race above justice in the same manner.'
Lind, author of The Next American Nation (Free Press, 1995), would like to see our current jury system -- which is based on British common-law traditions -- replaced by the civil-law system used by most other Western democracies. 'In civil-law countries... the jury is typically made up of a small number of professional and lay judges,' he writes. 'The professional judges bring their experience to bear in sifting the evidence; the lay judges prevent the professionals from acting on the basis of prejudice or politics.'
Such a fundamental overhaul in the system is probably not politically feasible at this time. Nonetheless, Americans have indicated a desire for some kind of change -- and politicians have been all too willing to offer up quick-fix proposals. But voter beware: Judicial reforms don't always work out as intended -- a fact demonstrated by, ironically enough, the Simpson trial itself.
As Jeffrey Toobin reports in The New Yorker (March 27, 1995), Judge Lance A. Ito has been a pioneering proponent of a reformist judicial philosophy known as the truth school. 'For more than a generation,' writes Toobin, 'the judicial system's remedy for improper police work has been to exclude evidence -- and therefore sometimes to let the guilty go free. Truth-school adherents say that, while they do not countenance unconstitutional action by the police, they believe that suppressing evidence is not necessarily the way to address such misbehavior. If the police violate someone's rights, they suggest, it might be better if that person sued the cops for money damages in a civil lawsuit -- or, alternatively, if the offending officers were administratively sanctioned for their violations of the Constitution.'
In the Simpson case, Ito applied this truth-school approach in his denial of several defense motions to suppress evidence police had seized from the Simpson property. Perhaps the most pivotal of these decisions was Ito's ruling that the defendant's Fourth Amendment protection against an illegal search and seizure had not been violated when Detective Mark Fuhrman scaled the wall of the Simpson estate without a search warrant. It was during this episode that Fuhrman discovered the now-famous bloody glove.
But as Philip H. Corboy notes in the Chicago Tribune (Oct. 10, 1995), 'Ironically, suppression of that glove might have prevented the prosecution from becoming its own worst enemy.' Had Ito ruled for the defense, the bigoted and corrupt Fuhrman never would have become the state's star witness.
Indeed, writes Matthew Cooper in The New Republic (Oct. 23, 1995), 'the biggest reforms ought to be aimed at the police, not juries. That Mark Fuhrman should have been banished from the Los Angeles Police Department is, by now, a clich?; what's less remarked upon is that rogue cops seem to have insinuated themselves into too many American police forces.'
And as Randall Kennedy points out in California Lawyer (Nov. 1994): 'To more credibly condemn defense attorneys who opportunistically play 'the race card' on behalf of black clients, we must prevent law enforcement authorities from depriving anyone of equal protection under the law.'
Kennedy, a professor at Harvard Law School, condemns as 'dangerous' and 'prevalent' the conduct of black-dominated juries who refuse on principle to send fellow African-Americans to jail. This practice -- wherein jurors base their decisions on variables other than the evidence and instructions of the judge -- is known as 'jury nullification.' But, as Kennedy observes, 'it is crucial to recognize that at least part of the impulse behind jury nullification stems from legitimate grievances.'
And not all experts believe that jury nullification is inherently bad. While conceding that the practice is often abused, Jeffrey Abramson -- a professor of politics at Brandeis University and author of We, the Jury (BasicBooks, 1994) -- points out that it is nonetheless a 'time-honored way of permitting juries to leaven the law with leniency... Putting pressure on jurors to convict against their conscience would seem to threaten the integrity of law far more seriously.'
Abramson, writing in the Report from the Institute for Philosophy & Public Policy (Summer/Fall 1994), concludes: 'The distrust of jury nullification is a succinct expression of the collapsed faith in the virtue of jurors... One is left to wonder whether the rejection of jury nullification is not a