Judging the Jury

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.

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

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