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THE SIMPSON LEGACY : Obsession: DID THE MEDIA OVERFEED A STARVING PUBLIC? : CHAPTER NINE: WINNERS AND LOSERS : 'I learned something: Even when your sources are absolutely convinced they're right, they may be wrong.'

October 09, 1995|DAVID SHAW | Times Staff Writer

The only people whose judgment of winners and losers in a trial matters are, of course, the jurors. And the only time that matters is at the very end.

Throughout the Simpson trial, but especially as the trial neared its conclusion, reporters and the lawyers and law professors who served as expert commentators were increasingly inclined to indulge in what Margolick, in an Aug. 12 New York Times story, derided as "the pseudoscience of reading jurors."

They speculated on how particular witnesses and bits of testimony might or might not be influencing the jurors, and their stories began to be dotted with such observations as "jurors did not seem particularly moved by that evidence" and "jurors clearly found the physician's testimony engaging" and "the jury followed Cochran's examination . . . with obvious interest."

Even Margolick tried to have it both ways.

In a story that was published on the day that deliberations actually began, he returned to the theme of jury-reading as pseudoscience, gently poking fun at those who tried to read jurors. ("The panelists have been scrutinized for every smile, every frown, furrow and fluttering eyelid,") Of course, amid several caveats, he also offered his own insights into the possible inclinations of several jurors. (Juror No. 1 "could be a crucial juror for the prosecution," he wrote.)

But the "one immutable rule" for trial lawyers is that "you never know what the jury's going to do," said attorney Gerald Chaleff, and he suggested that journalists who try to guess how jurors might have perceived a particular witness are making "a giant mistake."

"What is the jury reaction?" asks Cynthia McFadden of ABC News. "I don't know. . . . It's irresistible to ask [that question], but it's important not to answer it."

*

Many TV commentators seemed to feel, however, that one of the areas of expertise for which they were being paid was their presumed ability to read jurors' minds. When Judge Ito announced last Monday that jurors had reached a verdict after less than four hours of deliberations and that the verdicts would be read the next morning, the experts were positively beside themselves trying to figure out what the jury had decided.

Traditionally, some said, short deliberations mean an acquittal.

Traditionally, others said, short deliberations mean a conviction.

The jurors didn't make eye contact with Simpson. Conviction.

They laughed. Acquittal.

They asked to have a particular bit of testimony from a prosecution witness read back to them. Conviction.

But they stopped the reading before it got to a critical point. Acquittal.

Virtually all the commentators said that any attempt to guess how the jurors had voted was the equivalent of "reading tea leaves." Then most of them peered deeply into the bottoms of their teacups and began reading for all they were worth.

Some reporters, sitting in court day after day, week after week, month after month, watching the jurors, talking to the attorneys and to one another, began to feel that they knew how to read the jurors. But most members of the Simpson press corps said the Simpson jury was especially difficult to read. In interviews, the described the jurors as "determinedly impassive" (Fred Graham, CNN), "stone-faced" (Bill Whitaker, CBS News) and "the least reactive jury I've ever seen" (McFadden). Margolick wrote that "not since the Mona Lisa have people appeared so enigmatic."

*

One of the primary obligations of virtually every reporter who took one of the 24 press seats in the courtroom every day was to watch the jury, to note every note, every twitch, every nod.

The better, more careful reporters tried to limit themselves to describing the physical reactions of the jurors. Did they smile, nod off or look at the defendant? Reporters were especially interested in whether, and how often, the jurors took notes. But note taking didn't necessarily mean anything.

Were jurors frantically scribbling notes because they found a witness' testimony persuasive? Or because they found it preposterous? Did they take notes because they understood a particular scientific explanation--or because they didn't understand it? Were they taking notes to use as ammunition or so they could later ask for clarification or explanation? If they weren't taking notes, was it because they were tired? Or bored? Or because they were transfixed (or repelled) by the testimony?

Linda Deutsch of Associated Press said that when she covered the Angela Davis murder and kidnaping trial in 1972, one juror took "copious notes" when the prosecution spoke, but when the defense spoke, she put her notebook down, put her pen away and didn't take a note.

"We thought that was so obvious; she was obviously a [pro-] prosecution juror," Deutsch said.

After Davis was acquitted, Deutsch asked the juror about her note taking, and the juror said, "I was so convinced of the defense case from the beginning that I thought I should give [the prosecution] . . . the benefit of the doubt" and take down everything they said.

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