The Jury Puzzle

FOR THE PLAINTIFFS IN THE O. J. Simpson wrongful-death civil trial, it was as smooth a week as they could expect. In the time that Judge Lance Ito would have consumed in just one sidebar conference, Judge Hiroshi Fujisaki sharply reined in the smorgasbord defense of police conspiracies and corruption that served Simpson so well in the criminal trial. Mark Fuhrman's racist past? Don't look for the N-word drumbeat this time. Colombian drug lords? Not likely in this trial. A police frame-up? Not unless defense lawyers can offer evidence. ""You've tried a shotgun approach,'' Fujisaki told the defense. ""I want chapter and verse.''

Under the direction of Fujisaki, ""O.J., the Sequel'' was shaping up as a more finely tuned, fast-paced version of the first trial. As it happened, the star missed the opening days. Simpson was in an Orange County family courthouse fighting Nicole Brown Simpson's parents for custody of his two children, Sydney and Justin. The judge put off a decision until at least November, leaving the children with their grandparents. They started school last week; Simpson sees them on alternate weekends.

Over the next several weeks Simpson will watch what may be the most crucial part of this trial: jury selection. Race, as always, will be critical. It is accepted wisdom now that prosecutors lost the criminal trial virtually the day the predominantly African-American jury was sworn in. This time, lawyers for the plaintiffs, the families of slain Nicole Simpson and Ron Goldman, will want to turn the race card to their advantage. In practice, that means they'll want to shape a panel considered, ironically, to be Simpson's true peers: predominantly white, middle class and male. And what they won't want is just as clear: African-American females between 30 and 45--Simpson's loyal allies in the criminal trial. As a jury expert familiar with the case told NEWSWEEK, ""Race is going to be as key in the civil case as it was in the criminal case.''

On that criterion alone the plaintiffs will have an easier time finding a jury to their liking. The population surrounding Santa Monica, where the civil trial is being held, is nearly 80 percent white--compared with only 30 percent in the downtown Loos Angeles area where the criminal-jury pool resided. And average income and education level are higher, too.

Last week Fujisaki tossed out jurors with clearly entrenched biases, including one who described plaintiff Fred Goldman, Ron's father, as ""greedy'' and out for ""money, money and more money.'' Yet, given the difficulty of finding unbiased jurors, Fujisaki retained 10 panelists, some of whom might have been summarily rejected at more ordinary trials. Among them was a woman who said she was 90 percent sure Simpson is guilty. All of the prospective jurors still face more questioning by the judge and lawyers before being seated.

That's where the jury research on both sides come in. Each of the jurors will be instructed to set aside any preconceived notions of the case. But the lawyers know that's easier said than done, so they are trying to discern leanings among the jurors that might help, or at least not hurt, their case. Pretrial research has shown, for instance, that people who follow the case obsessively tend to be more sympathetic to the defense. That may be because they are more prone to believe conspiracy theories. To try to unearth any such bias, the court, in this phase, is presenting all potential jurors with a list of 27 written questions. The questionnaire asks whether they have read any of the O.J. books; ""ever driven by'' Simpson's house or Brown's condo, or ""purchased, or otherwise obtained, any commercial item relating to this case''--like a T shirt. Plaintiffs will consider those who answer yes to be suspect, and question them closely.

Similarly, the plaintiffs will prefer jurors who read daily newspapers to those who watch tabloid TV shows--on the theory they are both better educated and less likely to be swayed by conspiracy themes. ""The plaintiffs are looking for people obsessed with the case,'' says the jury expert. ""And if they are obsessed because they feel O.J. was framed, then they're dangerous.'' Lawyers also hope to dig out biases by asking prospective jurors their impressions of a long list of people involved in the criminal trial. Among them: Dennis Fung (a criminalist), Kim Goldman (Ron's sister), Kato Kaelin (O.J.'s house guest), Ron Shipp (O.J.'s former friend), Phil Vannatter (a detective).

It will likely take another couple of weeks to select a jury of 12 regular members and eight alternates. Because this is a civil trial, the plaintiffs have several advantages that the criminal prosecutors did not. Most important, they have both a lighter burden of proof, and need only nine of 12 jurors to agree on a verdict (chart). ""I think they [defense lawyers] have real problems,'' said plaintiff lawyer Dan Petrocelli in an interview before a gag order was imposed. ""They can't rely on the three S's--surmise, speculation and supposition--that they used in the criminal case.''

But the prosecution thought it had public sentiment on its side going into the criminal trial, and it couldn't convince even one juror. If the plaintiffs were getting complacent, they got a wake-up call last month after putting on a mock trial before a racially mixed jury in Santa Monica. Petrocelli represented the plaintiffs; a colleague stood in for lead Simpson lawyer Robert Baker; the jury heard from Simpson via his commercial home video. The verdict: an even split. The blood evidence swayed the guilty votes, while conspiracy and contamination theories influenced the others. Another defense advantage: Baker, a highly respected litigator, has more years of trial experience than Petrocelli, whose expertise is more in corporate law than before juries.

The defense is expected to offer a few new witnesses, if the judge permits them. They include, NEWSWEEK has learned, Thomas Tallarino, a Brentwood resident (and sometime driver-bodyguard for Danny DeVito) who supposedly will testify that he saw two people lurking suspiciously outside Nicole's condo earlier than when the state says the murders took place. The defense may also call police Officer Daniel Gonzalez. He report- ed playing with Nicole's dog, Kato, and may have gotten the victims' blood on his uniform, which he then may have inadvertently transferred to the inside of Simpson's Bronco.

But the biggest new witness will be O.J. himself. The plaintiffs will call him--it isn't clear when during the trial--and Petrocelli insists he's looking forward to it. ""O.J. is going to tell the jury that he never hit Nicole, and I'll be able to say he's a liar,'' Petrocelli said. But those are brave words. Petrocelli acknowledges that Simpson the witness is his biggest obstacle. All the jury research in the world will mean little if O.J. is able to once again turn on his convincing charm.

Some Crucial Differences

Simpson will be there, and so will familiar witnesses testifying about barking dogs and blood. But there won't be any live television, and a unanimous verdict is not required.

Criminal Trial, 1995

State of California v. 

O. J. Simpson

LOCATION: Los Angeles

JUDGE: Lance Ito


LEAD DEFENSE: John Cochran


unanimous vote of 12 jurors


beyond a reasonable doubt


cameras and video feed

TESTIMONY: Simpson was not 

called to the stand

Civil Trial, 1996

Brown Estate/Goldman Family 

v. O. J. Simpson

LOCATION: Santa Monica, Calif.

JUDGE: Hiroshi Fujisaki


Dan Petrocelli

LEAD DEFENSE: Robert Baker


nine of 12 jurors in agreement


preponderance of evidence


audio feed only, no cameras 

TESTIMONY: Simpson required 

to take the stand, if called