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THE SIMPSON LEGACY / LOS ANGELES TIMES SPECIAL REPORT : Trial & Error: FOCUS SHIFTS TO A JUSTICE SYSTEM AND ITS FLAWS

Arenella, Levenson & Co. / The Legal Pad

October 08, 1995

With the "Trial of the Century" concluded, four experts offer their perspective on justice, change and whether the system could survive if everyone put on an O.J. Simpson-style defense.

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PETER ARENELLA, UCLA Law Professor

"People without power rioted when a Simi Valley jury acquitted police officers in the first Rodney King beating case. Now, people with power are engaging in their own version of hysteria in response to what they perceive as an unjust verdict in the Simpson trial. Governor Wilson's call to ban cameras from all criminal courtrooms and to abolish the unanimous jury verdict exemplifies this overreaction.

What is particularly troubling is that such proposals are triggered by a trial that is a complete aberration from how our system usually functions. Most cases are resolved by plea bargains, and the few cases that go to trial are completed, on average, in less than a month. Why? Because most defendants are poor and lack the resources to fight the state on anything close to an equal footing. Public defenders may "go to school" on Barry Scheck, but an effective challenge to the type of scientific evidence martialed against O.J. requires something public defenders don't have: money to purchase expert testimony.

Wilson's "reforms" do not respond to the real problems raised by the Simpson case. Permitting jury verdicts by a "super-majority" vote of 10-2 would have led to the same result, but in an even shorter time because the majority would not have needed to address the concerns of the two jurors who first voted for a conviction. In most jury trials, the unanimity requirement fosters meaningful deliberations, because people with diverse points of view must listen to each other to reach a consensus. Barring cameras from all courtrooms is an overreaction because some high-profile cases such as the King trial merit full public scrutiny.

What are the real lessons to be drawn from the Simpson trial? The LAPD lab needs more resources. Jury sequestration should eliminated. Prosecutors shouldn't jeopardize their own credibility by calling police officers when they have good reason to suspect that the officer might lie to the jury. Defense attorneys shouldn't air their personal dirty laundry or disclose private disputes concerning alternative legal strategies. Trial judges must use their power to stop attorneys from engaging in needless bickering and repetitive arguments. And if you don't like the jury's verdict, stop shirking your own civic responsibility to serve on juries and demand reforms that make such service possible for all members of society."

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Laurie Levenson, Loyola Law School professor and former federal prosecutor.

"Face it. It's not the "system," it's us and we have big problems. The criminal justice system was designed for intelligent jurors who are patient and unbiased enough to make just decisions, for lawyers ethical enough to fight hard but fair, for judges wise enough to make a trial more than a dogfight, and for a community cohesive enough to trust the judgment of its fellow citizens. In other words, the criminal justice system was never designed for the O.J. Simpson case, nor should we design a system around it.

Don't expect any quick fixes. The LAPD won't change overnight, racism won't magically disappear and jurors will never be eager to master the subtleties of DNA. But there are things we can do: 1. Stop idol-worship: Simpson is not a hero; he is a wife-beater. 2. Serve on juries. That means everyone. We can't relegate jury service to those who have nothing better to do. Make trials short enough so that people don't have to sacrifice their jobs or family to do their duty. 3. Talk to your neighbor. Don't let others divide us. Criminal trials cannot solve our social ills; they can only show us what they are. 4. Demand the best from everyone in the system--the police, the lawyers, the judge, the jury--but do more: Invest financially in their success and educate jurors as to how to do their job. Consider also permitting jurors to ask questions during trials so we don't have surprises at the end. Don't excuse jurors because they know too much. Excuse them only for bias. 5. Bring experts under the purview of the court so they are not hired guns and let both sides work with them. And beware of false cures: Question legislators claiming to have all the answers. The Constitution, not campaign rhetoric, should govern us.

Non-unanimous juries will only insure we don't talk to one another. Don't blame the messenger. Television, like X-rays, only reveals our diseases; it doesn't cause them. Don't treat trials like sporting events. It's not who scored more points; it's who committed the crime. Finally, think for yourself. Don't let the cynics be your guide. If you work towards justice, it will come."

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GERALD L. CHALEFF, criminal defense lawyer and former president of the Los Angeles County Bar Assn.

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