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THE SIMPSON LEGACY / LOS ANGELES TIMES SPECIAL REPORT : Trial & Error: FOCUS SHIFTS TO A JUSTICE SYSTEM AND ITS FLAWS : Weighing the Necessity of Change : How One Case May Reshape Criminal Justice in America : Rules of the Court / "We're going to go for the easy fix."

October 08, 1995

One of the few certainties in the O.J. Simpson case is that no one will ever know what private reflections brought the jury to its speedy decision.

Did some of the jurors harbor a suspicion that Simpson committed the murders, but didn't feel sure enough to convict him? Did they find, lurking somewhere in the back of their minds, a reasonable doubt?

The problem, legal scholars say, is that no one knows for certain what constitutes a reasonable doubt for someone else--and Judge Lance A. Ito's instructions, which attempted to help the jury understand its mission, may have confused the issue.

"Do you say a reasonable doubt is any doubt that you have in your mind that isn't a fleeting doubt? Or do you say a reasonable doubt is a doubt that must be firmly backed by the evidence, and have a great deal of reason behind it?" asked Georgetown University law professor Paul Rothstein.

"People are going to want to go back to the drawing boards," he said. "While I don't think anybody's going to change the standard of reasonable doubt, you don't absolutely need to give instructions that say if there are two reasonable inferences from the evidence, one guilty and one innocent, you must go with innocence. When you look at all those instructions about reasonable doubt, the California instructions seem to beg for an acquittal. And that definitely will be looked at."

State Sen. Quentin L. Kopp (I-San Francisco) is ready to step ahead, announcing plans in the wake of the Simpson case to introduce legislation allowing jurors three possible verdicts: guilty, not guilty or "not proven." The latter, a so-called "Scotch verdict," mimics the option traditionally given juries in that United Kingdom jurisdiction.

"This would have eliminated probably half the teeth-gnashing in the Simpson case," said Kopp, who authored a new rule limiting lawyer discussion of cases. "That jury would have come back with 'not proven,' I'm sure of it."

The issue of defining the standard of proof is one of the most important in a series of legal and procedural debates springing from the Simpson trial and the legal community's attempt to define, and if possible fix, the things that further held up, complicated and confused an already nettlesome case.

Frustrated by a trial that took over a year to unfold, lawyers and lawmakers are re-examining the volumes of rules and codes that govern court procedure in California. They are attempting to determine how those rules affect the ability to conduct trials that are expeditious, thorough and fair.

Among the other procedural issues springing to attention:

* The extent to which jurors were influenced by what lawyers had to say about the case before they were sequestered for the duration of the trial. A new order by the California Supreme Court that took effect Oct. 1 prohibits lawyers from speaking publicly about pending cases, with certain exceptions.

* The endless hours of argument in the Simpson case over what information about upcoming witnesses and evidence had to be disclosed to the other side uncovered a number of gray areas in the state's "reciprocal discovery" law, which requires each side to provide the other with information about its upcoming testimony.

* The central role of DNA evidence in the Simpson case, both in seeking to prove Simpson's guilt and in defense attempts to discredit the prosecution's case, has prompted some legal scholars to call for the establishment of technical standards for the introduction of DNA testimony and guidelines for how much the jury should rely on it.

The case prompted Gov. Pete Wilson within hours of the verdicts to call for a series of procedural reforms, ranging from keeping cameras out of the courtroom to prohibiting defense lawyers from making "political" appeals to the jury in closing statements, an apparent reference to Simpson defense lawyer Johnnie L. Cochran Jr.'s emotional statements about racism and deception in the LAPD.

Those appeals for change prompt many lawyers to urge caution, fearing that the political demands of a single extraordinary case could lead to unnecessary tinkering with a legal system that has worked with relative efficiency in thousands of cases.

"It's a reform in search of a problem. Whenever we're dissatisfied with something, and by that I mean primarily white America, we decide that rather than take a hard look at some of the underlying social problems that may be the source of our dissatisfaction, we're going to go for the easy fix," said San Diego defense lawyer Elisabeth Semel.

Assemblyman Phillip Isenberg (D-Sacramento), a member of the state Judicial Council that will have to act on Wilson's recommendations, was skeptical about calls for reform, though he said the council will consider them and perhaps adopt some changes.

"We're very much like the generals who want to win the war that's over," he said. "We want to constantly re-fight the battle that's just been lost.

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