Kudos to Walter K. Olson ("Courting Stupidity," January) for taking on trial lawyers in general and the O.J. Simpson criminal trial jury in particular. I only hope his lonely courage doesn't hurt sales of his book.
His piece is very much in the reason tradition. During the Simpson trial, your main essayist on the subject was proud to have Geraldo Rivera do his thinking for him, taking the unpopular view that Simpson was guilty, six months before he could have heard a word of the defense case.
Olson makes much of supposed switching of portraits, black faces for white, before the jury's visit to Simpson's Rockingham home. This tale, which apparently comes from a post-trial book by a seasoned exploitation hack and a disgruntled Simpson attorney, is repeated on a prominent anti-O.J. Web site in its "gossip" section. After reading the transcript detailing the strict rules laid down by the judge regarding this visit (which was made over defense objections), I find it difficult to believe that even clever fiends like the "Dream Team" would take a wild chance like this, or that the prosecution wouldn't be screaming for sanctions if they had.
Olson also carries on about members of the defense team showing up in court in "garments of African kente cloth," described as an "unsubtle" attempt to sway jurors. Olson gave me the impression that an indifferent Judge Ito allowed them to swagger into court togged out like Eddie Murphy in Coming to America. I think this would have attracted press attention, but I can't find any. Would Olson be good enough to specify exactly what "garments" he is referring to?
To sum up, the "stupid" Simpson jury was unable to appreciate a "mountain of evidence" from the state but clever enough to get their racial marching orders from furtive glances at framed pictures and brightly colored bits of fabric. How did these symbols manage to resonate with the quarter of the panel that was not black, by the way?
But this is a small part of Olson's article, and I don't wish to downplay his larger point, that large corporations are having to pony up and aren't enjoying the experience at all. His solution seems to be to give more power to largely unelected and unaccountable judges, and his "reforms" suggest to me that he hasn't been in a jury box for quite some time. I have, as it is one of the hazards of being self-employed, and I have yet to encounter a "passive" judge, nor at any time did I feel in danger of "wielding government power" from any direction.
My experience was one of being herded into a stuffy courtroom to listen to pronouncements from a remote figure towering over the rest of us. I can only hope that Arizona's example regarding jury note taking is followed here in the Garden State. I can't wait to sit in a cramped box with 11 strangers, notepad balanced precariously on my knee, as I strain to hear the witnesses over the dodgy sound systems that are standard issue here. This would at a minimum encourage jury bonding, as we argue over whose notes are more accurate when the inevitable conflicts arise. That's why we engage professionals to keep a transcript, Blackstone.
North Plainfield, NJ
Even though Walter Olson covered much about the practice of voir dire, his calls for reform of the jury selection system, "including the abolition or curtailment of peremptory challenges and narrowing for-cause challenges," are a far cry from ending this corrupting practice.
Another idea that he bandied about was to allow the jurors to take notes and question the judge, but I doubt stupid people taking notes and asking stupid questions will solve the problem. It certainly does not address the problem of judges telling the jury how to deliberate and vote.
Olson also argues that judges are not exerting their power to rein in lawyers who exploit the system and make a mockery of proper court proceedings. He states that judges exercising more power in this regard "would be all to the good if it happened." I would argue that if it were in the judges' interests to rein in lawyers, they already would have.
When members of the legal establishment have decided to divide the stolen power of the jury among themselves, it is difficult to imagine that they would return that power willingly. This story is not just about "runaway juries"; it is a testament to the lengths that the legal and governmental system will go to strip power from the last guarantor of the people's rights, the jury trial.
Kansas City, MO
Walter K. Olson replies: On the defense's redecoration of the walls of the Simpson residence, see Jeff Rosen's article in the December 9, 1996, New Republic; on Cochran and colleagues' wearing kente cloth into court, see Christopher Caldwell's Commentary piece in the March 1997 issue. Gwyn Thomas offers no reason to doubt the accuracy of either account but instead professes to doubt that a target audience's ethnic or nationalist loyalties could be much played on by the sight of symbolically potent garments (mere "bits of fabric") or of artworks portraying little girls being brutalized by the other guy's race. If so, then the art of the propaganda poster will need to be rethought.