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November 22, 2014

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More O.J.?

Simpson’s new appeal underlines an old question

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Ethan Miller/AP

O.J.’s back in court ... again. This time he’s appealing his 2008 kidnapping and robbery convictions.

Last week, Simpson’s attorney, Yale Galanter, argued to the Nevada Supreme Court that the trial judge didn’t allow for sufficient time to question potential jurors regarding their feelings about the O.J. murder trial—e.g., Do you believe O.J. got away with murder? Would you be able to put that belief aside throughout this trial?

According to Galanter, “There should have been a heightened sense of responsibility to make sure that you get 12 people who are going to judge what happened here in Nevada strictly by what happened here in Nevada.”

Galanter brought up race, too. Unlike O.J.’s murder trial, O.J.’s kidnapping/robbery trial had no black jurors. Clark County prosecutors successfully kept black potential juror No. 177 and black potential juror No. 209 out of the jury box. District Attorney David Roger says these two were excluded because they both had been wrongfully accused of crimes in the past (and their wrongful accusations, presumably, would have given them a pro-defense bias); Galanter says they were excluded because they’re black.

Was it possible for O.J. to find an unbiased jury after 1995? Howard Rubin, DePaul University College of Law’s associate dean for lawyering skills, thinks so.

“It was possible for O.J. to get a fair trial,” Rubin said. “Jurors decide a case based on what they hear and see in the courtroom. The search for a fair juror is not to find someone free of bias but someone who can put aside their biases and decide the case based on the evidence. The jury system succeeds because the people placed in the box take their work seriously and understand their role in assuring justice to those accused of a crime.”

It might have been tempting for jurors in the 2008 case to vote guilty based O.J.’s previous acquittal, but it wouldn’t have been right. Professor Rubin reminds us, “Every trial is unique—the jurisdiction, parties, judge, jury, elements of the crime, and evidence presented.”

Murder is a crime, getting away with murder isn’t.

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