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Trying a Case in the Court of Public Opinion

July 31, 1994|Suzanne Garment | Suzanne Garment, a contributing editor to Opinion, is a resident scholar at the American Enterprise Institute. She is the author of "Scandal: The Culture of Mistrust in American Politics" (Times Books)

WASHINGTON — When O.J. Simpson's scientific experts decided not to participate in the prosecution's DNA testing, they held a press conference to announce this. When they nonetheless showed up at the laboratory the next day to observe the division of the blood samples, they explained that to the press, too. Such behavior is what we have come to expect from the publicity-minded Simpson defense team. But when the prosecution or defense creates this kind of hoopla outside a criminal-case courtroom, does it really affect the verdict?

Let's put it this way: It's like the Jewish joke about the man who's on his death bed when his mother comes to visit and says, "What you need is a bowl of chicken soup." So the man croaks to her, "Chicken soup? How could that possibly help?" "Well," she says, a little miffed, "it couldn't hurt."

In any single case, no one really knows whether outside publicity will sway the population and the jury. But Simpson's is a capital case. The stakes are as high as they can be. The defendant has enough money so he can spend in proportion to the size of the danger. And in his situation there's a chance the publicity will do him some good.

The noise surrounding this trial is hardly unprecedented in our criminal history. For example, it by no means exceeds the public excitement that attended the 1859 murder trial of Rep. Dan Sickles, who emerged from his Washington townhouse one afternoon and shot his wife's lover dead. The newspapers were beside themselves with anticipation. They spread rumors that his wife was pregnant with her lover's baby and that this was the reason for the murder. They speculated, alternatively, that Sickles had decided to act because he was about to be humiliated by public revelation of the affair.

So these things are perennial. But there is no field of endeavor that does not offer room for improvement. Human beings have congregated in the marketplace since time immemorial, but only 20th-Century America gave birth to the shopping mall. Eye-popping criminal cases have always produced lurid public curiosity and attempts to manipulate it, but not until the O.J. Simpson trial did defense attorneys offer the world an 800 number to phone in support for the defendant.

There have been advances on the prosecution side as well. For instance, beginning in the 1960s, adventurous prosecutors began trying to focus public attention on criminal cases that did not feature violence or organized crime. Instead, these cases involved what had once seemed like relatively arcane white-collar crimes, in fields such as tax law.

The trend greatly accelerated in the 1980s, when Manhattan's U.S. attorney--Rudolph W. Giuliani, now mayor of New York--set the style. In sight of invited TV cameras, he had an alleged Wall Street inside trader arrested and taken away in handcuffs. The Giuliani office worked with the press, giving journalists a close look at the inner workings of big cases.

Yet the effect of the increased publicity on particular cases was not clear. The prosecution had a large advantage, since people are far readier to envision a guilty businessman than an innocent one. The publicity certainly added to the pressure on defendants to plead guilty. But in the courtroom, there were big losses as well as big wins.

In criminal cases where one side does not have such a huge edge over the other, it is even harder to predict if a publicity campaign will affect the outcome.

The chief reason for uncertainty is that once a criminal trial has begun, it takes on a life of its own. Evidence can look very different in a courtroom from the way it appears on the nightly news, as the first Rodney G. King trial showed. Many of a trial's crucial decisions are in the hands of a judge, who will apply specialized standards in making them. This judge, when he or she sees lawyers trying to generate publicity to sway the case, is more likely to be annoyed than impressed.

A trial has its own pace: Facts that at first seem explosive can lose much of their power after they have been mauled by challenges and contradictory accounts. Jurors also develop strong opinions about particular defendants, law enforcement officials and other witnesses on the basis of qualities not apparent on the outside.

Indeed, because the relationship between the publicity and the verdict is so tenuous, it is tempting to conclude in these media-logged cases that prosecution and defense are generating press attention to advertise themselves rather than out of any rational eye to what effect they are having on the bottom line.

Yet there are some cases where outside factors have a huge potential to affect the outcome. These factors can not be manufactured by an enterprising attorney; they have to pre-exist in the population from which a jury will be drawn. Race, gender, attitudes toward particular sorts of crimes--these are the types of sentiment that can overwhelm legal argument.

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