Simpson Case Already Is Rewriting the Rule Book : Law: In a year since the murders, trial's impact is seen in juries, courtroom TV and the legal system itself.

By HENRY WEINSTEIN and TIM RUTTEN

June 11, 1995 12 AM PT

TIMES STAFF WRITERS

Twelve tumultuous months ago, the blood-drenched bodies of Nicole Brown Simpson and Ronald Lyle Goldman were discovered just steps from a busy Brentwood street. And while the trial of the man accused of their murders, former football star O.J. Simpson, has been in every sense the great exception, it already is rewriting the rules in nearly every area of American life touched by the law.

“We all will look back on the O.J. Simpson trial as the beginning of the end of the criminal justice system as we’ve known it in California--and perhaps across the country,” said defense attorney Gerald L. Chaleff.

Like many legal analysts, he expects public dissatisfaction with the trial’s conduct to reignite demands for less-than-unanimous verdicts in criminal cases, for smaller juries and, in some cases, for elimination of jury trials entirely.

“Taken together,” Chaleff said, “those things amount to an unprecedented erosion of the fundamental civil liberties on which this country was founded. All this will occur because of a trial that is an aberration in nearly every sense.”

The Simpson case is an aberration in nearly every sense of the word, but it is a provocative one. It has become not simply a national obsession, but also the starting point for a contentious collective conversation on issues both novel and familiar.

They range from the place of television and science in the courtroom to the role of the courtroom in popular literary life; from the role of race in the criminal justice system to the impact of money on the quality of justice itself.

But perhaps the most pressing of these discussions is the one over what, if anything, the Simpson case has to tell America about the necessity of legal reform.

Away From Unanimity

To those who believe it does have something to say on this question, item No. 1 on the agenda is the abolition of unanimous jury verdicts in criminal cases.

San Diego prosecutor Donald J. MacNeil, for one, says he will welcome the changes most experts foresee as a consequence of the Simpson case.

“We need to restore public confidence in our judicial system,” he said. “Obviously, the whole fair trial-free press issue will be revisited. A lot of people are looking at the Canadian and British models, where you essentially sequester the public and tell them what happened after the trial.”

MacNeil, one of the leaders in California’s movement toward non-unanimous verdicts, said such change is required because of what his friend and ally, Kern County Dist. Atty. Ed Jagels, calls “the flake factor: Put any 12 Californians in a room and you’ll have one flake. These people have been finding their way onto juries in greater numbers.”

The concern over what such a change may mean does not follow the predictable political fault lines. For example, Republican pollster and political consultant Arnold Steinberg says he is anxious over the quality of the ballot initiatives he expects to flow from the Simpson case.

“It’s only a matter of time until some elected official tries to seize this thing for their own ends. For every good reform idea that comes out, some promoter in my field will try and exploit it for their own financial gain,” Steinberg said.

T o many lawyers, fighting it out in what amounts to the trenches of the criminal justice system, the gain Steinberg is describing will come at the expense of the vast majority of defendants, whose obscure and poorly funded cases are utterly unlike Simpson’s.

Lawyer Bryan Stevenson directs the Capital Representation Center in Alabama, where the average death penalty trial lasts less than three days.

“We need to evaluate normal murder cases involving poor people, because that’s where there’s a real need for reform,” he said. Stevenson said that in his state, which generally reflects the national situation, attorneys appointed to represent indigents on trial for their lives are paid just $1,000 to prepare their entire case. Simpson’s DNA experts, according to knowledgeable sources, have run up bills as high as $50,000 per week.

“There are 140 people on Death Row in Alabama,” Stevenson said, “and we have 230 people awaiting capital murder trials. When we say race and class matter in the criminal justice system, that is not rhetoric--it is reality.

“The O.J. Simpsons and William Kennedy Smiths of the world can be tested and survive. But I currently am working on appeals in several capital murder cases where the defense lawyer made a one-paragraph closing argument.”

TV on Trial

There is one thing on which legal analysts agree: The co-defendant in the Simpson case is the courtroom’s television camera.

“The case has turned into an event rather than a search for justice,” said Stanford University law professor Lawrence M. Friedman, a distinguished legal historian. “It’s a show, an entertainment, a soap opera that competes with regular soap operas for daytime viewers. In all of this, the real legal, social and moral issues get completely lost.”

Wyoming defense attorney Gerry Spence has spent nearly as much time in front of the camera during this trial as Simpson has. Even so, he believes “cameras convert the search for justice into a salable commodity. The minute you put a camera in the courtroom, someone has to buy the time. The entity that will buy the time is an advertiser, who has something to sell. He’ll only buy if it’s entertaining and people will watch. So we drive toward an entertainment process and not the justice process,” said Spence, who has appeared with Larry King and Geraldo Rivera.

As presiding judge of Los Angeles County’s Superior Court, Gary Klausner has a view on the subject that probably counts more than most. He said that “the reluctance of judges to have cameras in the courtroom has grown in the past few months. There has been much more focus on the camera and it detracting from a smooth and fair trial.”

Steve Brill, editor in chief and founder of Court TV, has done more than anyone else in America to make TV a part of the court system, and he has no doubts that cameras belong there.

“Some lawyers and judges say it makes the system look bad,” he said. “They may be confusing the messenger with the message. If press coverage of something makes it look bad, that is a reason to have the press coverage. These comments are like saying because journalists were allowed to be with the troops in Vietnam, the Vietnam War was ruined.”

Chaleff, one of the few criminal lawyers ever to head Los Angeles County’s Bar Assn., concurred.

“It’s true that many of this trial’s problems can be traced to the presence of cameras in the courtroom and the media frenzy outside it,” he said. “But the people’s right to see what’s happening in their courts is so important and fundamental that the occasional trial like this is the price we have to pay.”

In fact, while the electronic media have spread images of the Simpson case nationwide, the result seems to resemble a coat of paint applied to a poorly prepared wall: in some places the color is thin; in others it has penetrated deeply into unfilled cracks in the communal psyche.

For example, when author and journalist John Gregory Dunne recently went to cover an obscure murder trial in a small Nebraska farm town, he discovered that “the participants’ response to their own experiences in the case had been conditioned by what they’d seen of the Simpson trial on television. Their rhetorical vocabulary was essentially that of ‘Hard Copy’ and ‘Oprah.’ The Simpson trial has created a poverty of expression.”

Dunne senses that “homicide has gained a strange new hold on our imagination,” a condition he attributes to “these bad tabloid TV shows. They’re all most people look at, and it’s no accident that all these shows flourish.”

By contrast, Houston-based jury consultant Robert Hirschhorn said he has “picked close to 30 juries since the start of the Simpson case in seven states--from Florida to Alaska--and in every instance they were not sequestered and jury selection took under four days.”

“All but one of the cases reached a verdict and in every case, civil and criminal, the Simpson case was mentioned. The judges were telling jurors ‘this is not like the O.J. case because. . . . ‘ And there was a universal sigh of relief or an outburst of laughter in each of these courtrooms.”

Black, White and Gray

Conventional wisdom to the contrary, there is little agreement among African Americans on the case’s racial fallout. Joe Hicks, executive director of the Southern Christian Leadership Conference in Los Angeles, believes that the trial has generated “a real racial nastiness. Johnnie Cochran [Simpson’s lead attorney] has become this vilified character--this uppity Negro, too big for his britches--in the talk show wasteland. It’s ugly.”

But writer Stanley Crouch, who like Hicks is an African American, says he is unconvinced that “race always plays the role in the criminal justice system that people assume it does or that black Americans get a particularly raw deal in the courts. Most of the people in jail are guilty.

“There clearly would be a problem,” he said, “if we had a bunch of black Ivan Boeskys or Michael Milkens getting 20 years, while their white counterparts get just two years. But that’s not happening, and even if it were, the black community does not benefit if a bunch of black criminals slip the noose just because they have a lot of money.

“The larger point is that people who have a lot of money--whatever their color--have a different experience in the criminal justice system. If O.J. Simpson had been some other Negro in Los Angeles accused of killing a white woman and a white guy, right now he’d be serving time or awaiting execution.”

Any discussion of the Simpson trial’s racial dimension inevitably circles back to speculation--much of it skeptical--about the jury. That concerns trial consultant Lois Haney of the National Jury Project.

“The most unfortunate thing is that the public and media seem to assume that when a jury hangs, it’s the result of a shortcoming,” she said. “There’s no recognition that people had reasonable differences over the evidence. Instead there’s public criticism of a jury’s failure, when all they’ve done is to vote their consciences, which is what we’ve asked them to do.”

Haney also fears that the extraordinary experience of the Simpson jury may lead prospective jurors to believe that service on a high-profile case is “a ticket to fame or sequestration, which is the equivalent of being taken hostage.”

Under those circumstances, she said, “you’ll have many people who will avoid service and a very small group of people who will be attracted to the fanfare.”

Legal analysts also have speculated widely on the impact the televised Simpson trial may have on jurors’ perception of evidence based on emerging biological and social sciences. Attorney and author Paul Mones, an authority on the links between homicide and familial abuse, said “the prosecution’s use of domestic violence evidence in this case has broken important new ground. Social scientists have known for years that there is some relationship between spousal battery and homicide,” he said, “but prosecutors have been reluctant to explore that link. It was a bold strategy by the Simpson prosecutors to go forward with this.”

Similarly, when it comes to biology, Mones argued that DNA evidence, with its astronomical numbers and aura of clinical precision, “has changed the geometry of justice.”

But Crouch is not so sure. “Americans’ relationship with technology oscillates between love and paranoia,” he said. “For every story about somebody’s aunt whose life was saved by a pacemaker, there’s one about somebody’s uncle whose paycheck was eaten by the cash machine at the bank. We’ve all been on too long a technological roller-coaster ever to accept the machine as infallible.”

Making Book on Law

The Simpson trial’s literary output already has altered not only the conduct of the case, but also California law.

In October, Superior Court Judge Lance A. Ito halted the trial during jury selection, fearing that a memoir of Nicole Brown Simpson by her friend Faye Resnick could pollute potential panelists’ ability to judge the case fairly.

And the state Legislature, in an attempt to prevent jurors and witnesses from cashing in on their involvement in this case and others of a high-profile nature, enacted statutes restricting their ability to profit by writing books about their experiences. A Los Angeles federal judge already has struck down one of the statutes, as it applies to jurors who have been dismissed from service. However, Ito also dismissed another juror after he received an anonymous letter stating that she was exploring a book deal.

“This trial has inspired its own literary genre,” said Maureen O’Brien, news editor and columnist for the book trade’s authoritative magazine, Publishers’ Weekly. “There are at least 15 O.J. books already out or in the immediate offing. Five have been bestsellers. That’s a huge number.”

According to O’Brien, book proposals from Simpson’s mother and other family members are circulating among New York publishers. The defendant’s friend and attorney, Robert Kardashian, also is negotiating with a literary agent.

“F. Lee Bailey very quietly cashed in during January,” O’Brien said, “when he had his publisher reissue 100,000 paperback copies of his own 1971 bestseller, ‘The Defense Never Rests.’ ”

O’Brien believes that the Simpson case has had a fundamental impact on the direction of American publishing. “From a commercial standpoint, this trial--as distasteful as it is--has proved the book business can compete in sensational breaking stories,” she said. “It also has made book publishing attractive to the principals in such trials, because it has demonstrated to them that they can control their words and the way in which they’re presented.

“It’s an unprecedented situation,” she explained. “There’s never been a trial in which the participants not only sought book deals, but published while the proceedings continued. What we may be seeing here is a new way to pay for a defense.”

One year after Nicole Brown Simpson and Ronald Lyle Goldman died, Loyola Law School professor Laurie Levenson, who has followed the case from its beginning, said she still finds it “amazing how much impact one case can have on people’s confidence in the system. Everybody knows we need reform in the criminal justice system, but it has to be the kind of reform that reflects what is going on day in-day out in our courts, not just in the ‘trial of the century.’ ”

Across the country, Alabama lawyer Stevenson, who has thought deeply about the meaning of the case, worried that “what may come out of this trial is the sense that it is very difficult to convict someone of a serious crime. My experience is the opposite; it’s far easier to convict an innocent person than to prevent a wrongful conviction.”

Los Angeles defense attorney Gigi Gordon, a frequent commentator on the case, has drawn at least one firm conclusion: “Americans accused of crimes are supposed to come into court surrounded by a brick wall called the presumption of innocence,” she said. “And their lawyers are supposed to stand in front of that brick wall and protect it. The tragic truth is that most defendants come into the courtroom naked.

“O.J. Simpson, by virtue of being a beloved figure in American life, is one of the only criminal defendants in our recent history who actually has enjoyed that presumption of innocence. We don’t need to change the system. We just need to make it work, so that everybody gets what O.J. Simpson has.”