Judging the Jury

Has our system of justice ever worked?

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The hype and hoopla have faded from memory, but the societal aftershocks of the O.J. Simpson case are still being felt. One of the most profound legacies of the trial is that it left Americans with lasting doubts about the cornerstone of the U.S. justice system: jury trials.

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.

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