O.J. Simpson's money has allowed him to play something denied most criminal case defendants: the jury manipulation game.
Most of the time, defendants' attorneys pick jurors by a much speedier process, operating mostly by instinct. The Simpson defense team has hired an expensive jury consultant and undoubtedly has conducted polls and analyzed each prospective juror for pro and anti feelings toward Simpson. During the actual trial, the defense team may even create a "shadow jury," a mock jury through which his attorneys can measure the effectiveness of their strategies and arguments. And, of course, the prosecution will have to match these efforts to remain competitive.
This use of polling and focus groups was developed by political campaign managers and advertising agencies. Their introduction to the courtroom more than 20 years ago was a major development in the law and, according to some legal scholars, has tilted the legal system toward those who can afford a jury consultant.
*
As a new book, "The Jury," by Stephen J. Adler, puts it:
"Jurors who might once have served proudly and well are being excluded in voir dire, not just on a hunch, but on the analysis of a data driven scientist," Adler writes. "Ironically, just as jury service laws have been changed to allow a broader cross-section of people into the jury room, technology has evolved to exclude new groups on the basis of their demographic characteristics, values and psyches.
"Juries are thus rendered less representative of their communities. And many well-qualified individuals become disappointed in a system that, despite its promise of inclusion, rejects them as jurors precisely because they would be fair and thoughtful decision makers."
Jury selection has never been a job for idealists. Adler recalled a 1936 Esquire magazine article on the subject by Clarence Darrow, the famous defense lawyer. Working by the seat of his pants, long before today's jury consultants, Darrow used his instincts, often bigoted, to file peremptory challenges, which can oust a prospective juror from the panel without a reason.
Darrow said he got rid of "the cold as the grave" Presbyterian, the "almost always sure to convict" Scandinavian, the "solemn" Christian Scientist and the very rich. "Next to the Board of Trade, for him, the penitentiary is the most important of all public buildings."
As Darrow saw it, "the lawyer's idea of justice is a verdict for his client and really this is the sole end for which he aims."
