[This is Part Two of a series of posts on the O.J. Simpson trial. Part One is here. Also, be warned that the extended entry has harsh language.]
One of the most important things that prosecutors do is to pick the jury. All we want is a fair shot to prove our case. But in order to get that fair shot, we need a group of 12 people who are willing to listen to the facts with an open mind. Not everyone out there is capable of doing this. Some people have preconceptions about the police and/or the criminal justice system that would prevent them from ever rendering a guilty verdict in any criminal case.
The bottom line is this: people who don’t want to be convinced of something cannot be convinced.
An analogy may help make the point. Every person who reads the comments to this site knows that there are people who simply cannot be convinced of certain issues, no matter what the evidence might be. I’m not naming names here; many of these people are one-time commenters who rush in from lefty sites when some prominent leftist happens to link here. You can tell from these people’s tone that there are certain things that are a matter of faith — a faith that runs so deep it discounts any evidence and/or argument that might tend to contradict it. They are the people who truly believe that Bush is worse than Hitler, that the World Trade Center was destroyed in a controlled demolition, and that suicide bombings are an understandable and acceptable response to what they see as Israel state terrorism.
Now imagine people like this on a criminal jury. Even better, imagine them on the jury in a hypothetical trial of Bill Clinton for perjury and obstruction of justice. Is there any way such a person would ever convict? Of course not. You could show them a video of Clinton declaring his intent to lie under oath and obstruct justice, and they would tell you the video is doctored. Clinton could get up on the stand and confess to his crimes under oath, and these folks would tell you that George W. Bush was off to the side of the courtroom, just out of sight, pointing a gun at Clinton’s head to coerce him to confess. No matter how powerful and compelling the evidence might be, such people would come up with some lame excuse to explain it away.
People who don’t want to be convinced of something cannot be convinced.
Often, people like this will admit in jury selection that they are biased against the prosecution. But sometimes, they won’t. The prosecutor has to try to identify the anti-prosecution jurors by closely examining their behavior and responses to questions. Sometimes a person’s bias is palpable. Sometimes people fool you, of course — it’s not a science. But you can often get a feel for people.
In the O.J. case, it’s my sense that the jury was packed with people who didn’t want to be convinced by the prosecution case. It wasn’t true of all of them, of course, but it was true of a critical mass of jurors. What’s more, they were drawn from a group of prospective jurors who were just as bad or worse.
I have a couple of stories to illustrate my point. A colleague I worked with downtown was a law clerk at the time of the O.J. trial. He was one of the first people to sound the alarm within the office, and he did it based on watching a few days of jury selection. He went to a couple of fairly high-level DAs that he was working for in the office, and told them: “We’re going down on this case.” They replied; “You’re kidding. We’ve got more evidence against this guy than we’ve ever had in a murder case. There’s no way we can lose.” My colleague replied: “I don’t care. You need to take a look at that group of jurors.”
I heard a story from Mrs. P. that directly reinforces this point. My wife joined the office three years before I did, and was getting trained during the jury selection in the O.J. trial. The training took place on the ninth floor of the Criminal Courts Building — the same floor where Judge Ito’s court was and still is. (The L.A. Times thinks it’s on the fifth floor, but that’s another story for another day.) Mrs. P. would routinely see Marcia Clark and Bill Hodgman as she walked to and from her training. Hodgman was always very cordial and went out of his way to speak to the new Deputy DAs — to congratulate them on getting the job, and to tell them what a great career they were going to have. Marcia Clark was more standoffish.
Anyway, one day Mrs. P. was getting off the elevator when Marcia Clark was getting on. This was still during the jury selection process. Mrs. P. stepped off the elevator, Clark got on, Someone piped up and asked: “So, Marcia, how’s it going in there?”
The elevator doors started to close. Clark had only enough time to give a pithy answer. And as the doors closed, this is the answer she gave: