With Few Rights, Jurors Languish in Legal Limbo

They have been quizzed about intimate details of their private lives.

Their rooms have been searched. They are told where to eat, where to walk, what to watch on TV.

Some have been investigated by government authorities.

When they became jurors in the O.J. Simpson murder trial, 24 Los Angeles County citizens gave up their rights to live life as most Americans know it. Their number now reduced to 18, the remaining jurors and alternates are living in a legal no man’s land, with virtually no right to privacy and no case law giving them any say over how they are treated.

“The Simpson jurors have no control over their own destiny,” said Los Angeles defense lawyer Danny Davis.

“They don’t have any control over the duration of their sequestration. They have no control over their movements. They have none of the options they had three months ago in a very mobile society, in Los Angeles. In my terms, they’re doing time,” said Davis, who represented Raymond Buckey in the McMartin Pre-School trial, in which jurors were sequestered for 3 1/2 months of deliberations.

A new window into the jurors’ daily existence was opened this week when dismissed panelist Jeanette Harris told a television interviewer that jurors might have been discussing the case and alleged that some sheriff’s deputies, supervising the jury, had been “promoting” racial divisiveness on the panel. She elaborated on those statements Friday, saying that white jurors got better shopping and phone privileges and that a white juror stepped on a black juror’s toes in the jury box.

As a result of her initial charges, life may get even more difficult for the remaining jurors. Superior Court Judge Lance A. Ito on Thursday launched an investigation of whether the jurors have violated his order not to discuss the case and whether bailiffs have been lax in supervising jurors’ phone calls or have fostered racial discord.

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Since the trial began in late January, allegations of juror misconduct have cropped up frequently, often coming to the judge in the form of anonymous tips. Two sheriff’s deputies--nicknamed the “jury busters” by some commentators--have been assigned the task of chasing down the leads and reporting to Ito.

Terri Waller of the National Jury Project said it was unprecedented to have ongoing investigations of jurors by sheriff’s deputies during a trial. “But that is only one of many ways in which this case differs from virtually every other case,” she added.

Among those replaced after an investigation was Tracy Kennedy, whose room was searched after the judge was told he might be keeping notes for a possible book on the case.

In fact, the jurors’ hotel rooms are being searched routinely by bailiffs before hotel cleaning crews enter the rooms, sources said.

Robert Hirschhorn, a Houston-based jury consultant, said he found the searches of the jurors’ rooms quite troubling and a potential violation of their protection against illegal searches.

“Just because someone was chosen for jury duty and became an officer of the court does not mean they forfeit their constitutional rights,” Hirschhorn said. “They’re making enough of a sacrifice for all of us. They’ve been taken away from their families, their homes, their jobs; don’t take away what few remnants of a free people they still have.”

But Jeffrey Abramson, a Brandeis University professor who wrote a well-reviewed book called “We The Jury: Justice and the Democratic Ideal,” said the Simpson jurors may have waived some of their rights when they agreed to serve in this case. He also said these jurors might not have the normal “expectation of privacy” in their hotel rooms because the government was paying for the rooms.

Still, he acknowledged that the situation presented troubling metaphors.

“There is this remarkable tension between the supposed glory of jury service and the actual indignity of it,” Abramson said. “The indignities are all around--not being able to speak about the case among themselves, not being able to watch the news, being separate from their families, having conjugal visits like a prisoner--imagine the indignity of that.

“Many of us thought the conditions would keep people away. The irony is that so many people wanted to serve,” Abramson said.

The professor speculated that many were willing to serve because of a perception that news media would be intensely interested in their stories and in some instances might be willing to pay for those stories. “When you know your jury service is bankable, that is a whole new ballgame.”

Ex-juror Michael Knox, who was dismissed last month, has been working on a book. A lawyer for Dove Books said he will file a lawsuit next week challenging a new state law that forbids jurors to sell their stories within 90 days of their service in order to pave the way for Dove to publish Knox’s book. Simpson case jurors were required by Ito not to sell their stories for 90 days after the verdict, under penalty of contempt or a $1,500 fine.

Several legal experts, including USC law professor Erwin Chemerinsky, said they consider the state statute a patently unconstitutional abridgment of free speech and predicted that it would be overturned.

Ito said there was good cause to remove Knox, but he did not elaborate.

The judge stated no reason in open court for Harris’ removal. But Harris said during an interview on KCAL-TV Channel 9 that Ito told her she was being ousted because she had failed to disclose on her jury questionnaire that she had been involved in a domestic violence incident. That was confirmed by a court document she filed in 1988, a document that was turned up by deputies during the recent investigation.

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All the hearings involving allegations of juror misconduct have been conducted in Ito’s chambers, outside the presence of the media, with a court reporter transcribing the proceedings. Thus far, the records of all those hearings have remained sealed and Ito has given no indication that he intends to release them.

Ito has warned the jurors many times not to discuss the case among themselves or with anyone. The reason for that is simple. Jurors are not supposed to deliberate in any way until they have heard all the evidence and received instructions from the judge on how to apply the law to the facts they have heard.

Judges hearing reports that jurors may have ignored such an admonition normally issue another, perhaps sterner warning.

In extreme cases, verdicts can be overturned because of jury misconduct, although that is rare.

In 1993, a federal appeals court in Philadelphia overturned a drug conviction after concluding that a trial judge had taken insufficient steps to probe reports that some jurors had discussed the case among themselves.

Appellate Judge Edward Becker said a trial judge had to draw a line between “brief and inconsequential conversations about minor matters” and “full-blown discussions of the defendants’ guilt or innocence.” He said a questionnaire the trial judge gave to jurors was inadequate to see if the line had been crossed.

Waller of the Jury Project said it would not be surprising if the Simpson jurors had had some conversation about the case. “The trial is the only thing they’re doing. What else is for them to talk about?”

She cited a 1987 California appeals court decision, People vs. Blackwell, to illustrate why Ito is wise to explore just what has been going on with the Simpson jurors.

In the Blackwell case, a woman was convicted of second-degree murder of her husband. Jurors rejected her contention that she had been a victim of “battered wife syndrome.”

But after the trial ended, a defense investigator discovered that one of the jurors had failed to disclose in pretrial questioning that she had been a victim of domestic violence. Moreover, that juror argued to the other panelists that Sally Blackwell could have left the marriage--as the juror had--rather than sticking around.

Blackwell’s conviction was reversed and she was acquitted at a second trial.

“Intentional concealment of relevant facts or the giving of false answers by a juror during the voir dire examination constitutes misconduct,” the appeals court wrote.

Rowan Klein, the Santa Monica attorney who represented Blackwell on appeal, said he believed that Ito’s decision to remove Harris from the Simpson panel may be sufficient to handle the problem created by her failure to disclose that she had been a victim of domestic violence--a central issue in the Simpson case.

Harris said she has not discussed the case with any juror. But Ito needs to make sure that is so, Klein said. “If there has been any kind of discussion about the case--spousal abuse or anything else about the facts--then the juror violated the judge’s admonition, it may have tainted other jurors who participated in these conversations and they might have to be removed.”