Monday, September 8, 2008

What elephant in the courtroom?

The judge overseeing OJ Simpson's robbery and kidnapping trial in Nevada has vowed to find jurors who will not be influenced by memories of Simpson's 1995 murder trial. Good luck with that. Seriously, is there anyone in this country over the age of 18 who doesn't have an opinion about the OJ trial?

Somehow, though, the court system thinks we're going to find 12 people who will put aside their previously-held opinions and judge OJ's case SOLELY on the basis of the evidence they hear in court. Sure. These magical jurors will be able to remove from their minds everything they think they know about OJ's character and credibility. They'll all be able to forget about the white Bronco and the glove and the claim to pursue the "real killers" and the civil suit and the odd publicity stunts and the book. None of that will affect the way they view OJ or assess the credibility of those accusing OJ of committing these new crimes.

What a crock. This legal fiction that we pretend to accept every day is a crock. We can give limiting instructions and strike evidence and tell juries to disregard things all we want to, but it doesn't work. Juries can't help but use evidence for purposes beyond the limited purpose we pretend it came in for. Juries can't just forget something, especially something really prejudicial, once they hear it. And they can't just clear their minds of everything they heard about a case or a defendant before the trial began. To borrow a really tired cliche, there really are some bells that just can't be unrung. This new OJ trial just might highlight how unrealistic our legal fiction is.

'Cause there's just no way any voir dire, no matter how well conducted, can find 12 people in this country who don't have pre-conceived notions about OJ Simpson.


Dennis Wilkins said...

It's not as crazy as you think that OJ will get a fair jury. He beat that case in Florida, and there was at least some evidence to support a conviction. That jury in Florida got it right.

The problem for OJ in Nevada is that I think the facts this time are not good for OJ. The case against him is based on questionable people testifying against him to get out of trouble. But there is a tape recording with OJ saying something troubling (I can't remember exactly, but I remember it was not good). Worse, it is clear that OJ went to the place with an intent to get his stuff back. It is not a stretch that OJ would have at least one of them bring a gun, which is the allegation. In morality land, there would be a presumption in favor of an otherwise clean person going somewhere to recover what is, essentially, their own stuff. This would not normally a robbery make. But OJ is widely perceived as a murderer who beat the rap, and he probably won't get that moral presumption.

I don't think he'll beat the rap this time.

Dennis Wilkins
Guest PD Blogger at PD Dude

S said...

No, I don't think it's crazy that OJ will get a fair trial. But I do think it's crazy to think that his whole history won't be present in the courtroom. I think we in the justice system need to stop kidding ourselves that we can honestly expect jurors to disregard whatever really prejudicial, but legally irrelevant, thing they found out.

Lee said...

so, if that's not possible, what should we do?

S said...

I wish I had an answer for that, Lee. I've thought about this a lot in OJ's case and I honestly don't know there is an answer for him. He has been such a controversial public figure for so long, I think most people have already got some opinion about his character already. I frankly wouldn't trust those prospective jurors who tried to hard to deny having any opinion. I do think OJ is a unique case. I guess I just don't want the judge and everyone else pretending OJ's past isn't present in this courtroom.

In the cases of regular folks, if I had my way, I would kick off all prospective jurors who had prior knowledge of the case. I hate the jurors who say they have an opinion about the case but they can set it aside passing for cause. If I made the rules, they would be struck.

If I were in charge of everything, I would also strictly enforce the ethical rules that require prosecutors not to make confessions known to the public. And I would be far more aggressive about holding prosecutor's accountable for police who make confessions known. I thnk that would go a long way towards keeping information away from prospective jurors unless and until those jurors are supposed to have that info.

If I were in charge, a lot more mistrials would be granted. I probably wouldn't be a popular judge for that reason, but I don't care. I just think it's a farce the way we pretend jurors can just forget about certain things.

Lee said...

Well, there's 2 different issues. The first (the notorious case, i.e., o.j.) I don't think has a good solution other than solid voir dire and a judge who makes his/her admonishments hit home with the jury. We all know the judges wo make their record and make perfectly clear to the jury how little value they believe the admonishments to have and signal to the jury just how seriously they should take them. Then there are the judges who make eye contact with each juror as the admonish them, who relate cautionary tales of innocents convicted, who tie instructions in to the Constitution and the bedrock principals of our societal contract.

The other issue, when LE or the prosecution has disclosed lots of facts about a case to the potential jury pool prior to trial can be legislated. This should simply not be allowed. In CA we have State Bar ethical prohibitions against prosecutors disclosing too much, but they are rarely enforced. I don't believe there is any such safeguard preventing officers from doing so, there should be. I always comfort myself with the thought that most folks don't want to do jury duty, so the ones who are too dumb to manage to avoid it probably aren't crackshot current events buffs. Remember, something like half of Americans can't tell you who the Vice President is, are they really closely following anything but the most notorious cases (a la O.J., see unsolvable problem above).

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