Copyright 1994 Bergen Record Corp.
JURY COMPOSITION CRUCIAL TO DEFENSE, LEGAL EXPERTS SAYBy CHRISTOPHER KILBOURNE
William Kunstler, the venerable iconoclast of the defense bar, has no doubts at all about the outcome of the O. J. Simpson trial.
“He is unconvictable,” Kunstler brashly asserts. “The net result will be a hung jury; he’ll get out on bail, and five years from now he’ll be broadcasting L.A. Raiders games -- and Robert Shapiro and company will have all of his money.”
While some may quibble with details of Kunstler’s scenario, many defense lawyers agree that Simpson has a better-than-even shot of being acquitted or at least getting a hung jury. The latter would force the state to retry him or, ultimately, let him go.
The simple fact is that Simpson is innocent. He is, at least, until the state of California proves otherwise, and the case is too riddled with doubt -- and countless extraneous factors -- for a jury to convict the football star turned actor and announcer, several defense experts say.
“Number one, he is an icon,” said Kunstler, whose clients have included Martin Luther King, Christian Brando, and Colin Ferguson, the accused Long Island Rail Road killer. “Number two, all they have is a most circumstantial case. DNA evidence is not a fingerprint.”
Defense analysts say the key to the case will be jury selection, a prediction supported by a Gallup Poll showing that 68 percent of whites believe Simpson is guilty and 60 percent of blacks believe he is innocent.
“His best chance is to get people from the neighborhood where he came from, because those people won’t betray him,” said Robert Galantucci, who defended Gary Spath, the former Teaneck police officer acquitted of reckless manslaughter charges in the fatal shooting of Phillip Pannell, a black youth.
`The defense needs at least three people on there that they love,” he said. “They have to build upon the foundation, which has already been somewhat created, that the state played fast and loose with this investigation to the detriment of a hero who rose out of the ghetto.”
“The whole case is picking black jurors,” said Kunstler’s partner, Ronald Kuby. “I cannot think of any other case where the division of whites and blacks on the issue of guilt or innocence has been so great. There is a giant chasm.”
“When has a defendant ever walked into a court where 40 [percent] to 50 percent of the potential jury firmly believes in his innocence? Give me three blacks on the jury, and I’ll give you an acquittal or a hung jury.”
That may seem like an incongruous view coming from a lawyer who, with Kunstler, won a new trial for two Black Panthers convicted of killing two New York City police officers by arguing that prosecutors had improperly excluded blacks from the jury solely on the basis of race.
Although neither side can openly use race to exclude potential jurors, the same result often can be achieved through careful questioning, Kuby said. “You question white prospective jurors in a way that elicits their prejudices and their hostility, any underlying racial animus.”
As in the Oliver North case, the glut of pretrial publicity surrounding Simpson will make it difficult to find jurors who have not made up their minds about Simpson’s guilt or innocence. That may mean the jury will come from a pool of people outside the mainstream, which may not bode well for prosecutors.
“It’s not unreasonable to think that a juror with no preconceived ideas about this case would be the type of person to mistrust complex scientific evidence,” said Scot Samis, a St. Petersburg, Fla., attorney whose clients have included New York Mets pitcher Dwight Gooden.
“A juror who has managed to avoid forming an opinion about this case has probably managed to avoid any familiarity with modern crime-fighting techniques,” Samis said. “And if the science goes out the window, the whole case goes out the window.”
Not all defense lawyers believe that the case will be won or lost during jury selection. “If there is enough evidence there to convict, it’s not going to matter what the composition of the jury is,” said Alan Zegas, a West Orange defense attorney.
The defense should be able to make hay with several weaknesses in the state’s case, including the questionable explanations by police of why they did not wait for a search warrant, the sloppy collection and handling of evidence (including the mislabeling of at least one sample), and the apparent absence of a murder weapon or any eyewitnesses.
“If the state has to rely upon barking dogs, they are in trouble,” Galantucci said, referring to prosecution efforts to pinpoint the time of the slayings by the howling of a neighborhood dog.
The heart of the state’s case is the forensic evidence, particularly the blood and DNA evidence from the crime scene and from Simpson’s car and estate that allegedly links him to the grisly crime.
To combat that, the defense has lined up a formidable array of experts, including Henry Lee and Michael Baden, who both testified at Spath’s trial and may be able to poke holes in the state’s theory of how the killings were carried out and whether all of the wounds were caused by the same weapon.
Peter Neufeld and Barry Scheck, the top defense attorneys on the subject of DNA evidence, should be able to score points by attacking the handling of the evidence and the methodology used by the state’s experts, as well as the interpretation of the DNA test results.
But the defense is likely to try to steer the jury’s attention to more fundamental questions. How could one man have killed two people in a residential neighborhood without anyone hearing or seeing the crime? Where is the murder weapon? Where are the killer’s blood-soaked clothes?
“They need a reasonable-doubt a day,” Kuby said. “Every day you attack a piece of the prosecution’s case. Don’t let the jury be blinded by science.”
But, Kuby concedes, with a wealth of circumstantial evidence, prosecutors will have fodder for a powerful closing argument. “They can argue that O. J. either is guilty or he is the unluckiest person in the world,” he said. “He just happens to fit the profile of the type of man who kills his spouse. He just happened not to have an alibi for that period of time. There just happened to be blood at the scene that matched his. There just happened to be a bloody glove at his home.”
That only underscores the importance of jury selection, Galantucci said. “Give me a jury from the streets,” he said. “People from the inner city know that the police are capable of lying and that they do lie.
“I think they lied when they said four experienced homicide detectives left the scene of a double homicide to go notify the victim’s former husband. I think it shows that they were trying to convict a star, and they didn’t care who committed the crime.”
Christopher Kilbourne formerly practiced law with a firm concentrating in insurance defense work. He has been a reporter for 10 years and has covered legal affairs for The Record since 1989.