To protect jurors from intense media coverage of the O.J. Simpson double murder trial, prosecutors Friday asked Judge Lance A. Ito to sequester jury members from the time they are selected until their discharge, meaning they could be kept from their families and jobs for months.
If granted, the unusual request for gavel-to-gavel sequestration could lay important groundwork for one of the most closely watched trials in modern history, perhaps shaping the composition of the 12-member panel and even influencing the jury to favor one side or the other, according to some attorneys and legal scholars.
"The jurors have a stake in the outcome because they're held hostage," said veteran Los Angeles defense attorney Barry Levin, who, like other experts, said that if the jury is sequestered there would be additional pressures from within the group to reach a speedier verdict.
Typically in such instances, Levin said, the result is a subtle advantage for prosecutors because jurors are constantly surrounded by court bailiffs or other representatives of government.
"The defense's function is to . . . (challenge) the government," Levin said. "You're wanting jurors to question government authority. You're wanting them to disagree with the government's positions and theories--and their lives are controlled by the government."
Sequestration of juries is not unusual in high-profile cases, but most of the time jurors are put up in hotels only during deliberations after they have heard testimony. The request by the Simpson prosecutors is designed to keep jurors from exposure to the media through every phase of the trial, scheduled to begin Sept. 26.
Not every expert agrees that such a situation would favor one side or the other. But the debate touches on the thorny question of how best to ensure fairness in a case in which even the tiniest twists and turns end up on national television and in newspaper headlines.
Though Ito has yet to rule on the prosecution's request, the judge has said he is considering a partial sequestration of jurors that would shield them from outsiders during court proceedings but allow them to go home for the night.
Under that plan, Ito said, he would try to lessen the temptation of jurors to sneak peeks at news reports by clipping newspapers and magazines and recording broadcast reports, then providing copies to each juror at the end of the trial.
But Deputy Dist. Attys. Marcia Clark and William Hodgman objected to that scheme in the papers filed Friday, saying jurors still could be exposed. Although acknowledging the potentially enormous cost of providing hotel accommodations to more than a dozen jurors--including alternates--throughout months of trial, the two prosecutors argued that it would cost even more to go through a retrial made necessary by jury contamination.
"If ever there was a jury in the history of the world that needed protection from publicity, this jury is the one," they wrote in their motion Friday. "Given the massive media coverage so far, one can only expect the publicity to intensify during trial."
Prosecutors also asked that potential jurors be questioned about their attitudes singly rather than in batches--to ensure that one juror's answers do not influence another potential juror who is listening.
In support of those requests, Clark and Hodgman told the court that a search of newspaper and magazine computer databases revealed that Simpson's name had been mentioned 15,310 times since June 12, the day of the slayings of his ex-wife Nicole Brown Simpson and her friend Ronald Lyle Goldman.
Even the early grand jury inquiry into the murders had to be ended because some of the grand jurors acknowledged listening to news reports about a 911 tape in which Simpson and his ex-wife were purportedly involved in a domestic dispute--a tape considered highly prejudicial, the prosecutors said.
News leaks have continued since then, they added, from both sides--some of them erroneous.
In such an environment, there simply is no way to conduct business as usual, according to some scholars.
"The (full) sequestration of this jury is an unfortunate necessity," said Peter Arenella, a UCLA law professor, who noted that he expects extensive, ongoing analysis and commentary about the case in the media from legal experts who have been hired by news organizations.
"This has become an event where there are so many legal commentators speculating about what this piece of evidence does or does not mean, even a juror who tried in good faith to avoid it would probably find that impossible unless they became a social hermit," Arenella said.
Norman M. Garland, a former public defender who is a professor at Southwestern University School of Law, expressed similar views, saying that sequestration may be preferable to imposing a sweeping gag order, as Ito indicated that he might do until a backlash of reaction forced the judge to reconsider.
The legal fight over a gag order could create its own contamination of the trial, Garland said.