I lived through the O.J. trial and remember watching it avidly even though at the time I was living abroad. As soon as it was announced that a verdict had been reached — a very quick verdict after such a long trial — I knew the jury had acquitted him.
Because so much dust had been kicked up about race, I knew it was impossible to deal with that many months of testimony and get a conviction quickly, not with the N-word kicking around. The jurors were looking for a reason not to convict.
An acquittal, on the other hand, could be swift. The jury just wasn’t buying what the cops were selling. Their verdict sent a message loud and clear — enough with the racist practices of the LAPD. It was time for payback. No matter how abundant the evidence of guilt, the jurors were focused on finding the flaws, not the truth.
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The fact that O.J. didn’t associate with the black community, that he gave barbeques for LAPD friends, and that he didn’t even consider himself black did not matter. (There’s a great moment in the FX series when his white attorneys tell him he needs to bring on Johnny Cochran to gain credibility. O.J. responds incredulously, “But I’m not black, I’m O.J.”)
Yet the jury acquitted because he was black — a reversal of what happens in most jury trials. The difference was the jury was mostly black, too — nine out of twelve. I’ll take those odds any day.
No matter how much we think we’re in a post-racial world, in the criminal justice system, race matters in terms of who gets arrested, how much he gets punished, and whether he stands a shot at getting acquitted.
In Manhattan, juries are mostly Caucasian — a factor of who can afford the high rents and housing prices in the city. In the Bronx, more people of color are in the venire. Guess which borough gets more acquittals? And it’s not because the evidence is stronger in Manhattan — it’s just that people of different races come to the process with very different experiences, especially concerning police.
When I’m on trial in Manhattan and get a small handful of black jurors on a panel, most of them say during voir dire questioning that they could not judge police testimony fairly.
Why? Because they’d been stopped by police and harassed so often and for no reason, that they don’t trust police and could, therefore, not sit on a jury that involves any police testimony. That’s about every case that goes to trial. Those jurors are then excused for cause leaving me with barely two other black people in the whole venire.
I’ve found that more people of color than Caucasians know people who have been arrested and are serving time in jail. After saying this, even if they say they can be fair, the prosecutor often kicks them off using his peremptory challenges, believing they would sympathize with the defendant.
Then there are the very few young black men between 18 and 25 in the venire. Not only have most of these people been stopped by police in the past, but many have no college or even high school education, generally just like the defendant. These would be the real peers of my clients. However these men are often excluded by the prosecutor, claiming he doesn’t want to seat people without high school diplomas as they might not understand the evidence as well as a more educated juror would, say a middle-aged white guy who moved to New York from Greenwich, CT, and is in investment banking. The judge finds this explanation “race neutral,” and permits the peremptory challenges.
Getting a jury with more than one person of color is Manhattan is a struggle every time. Getting nine, like in the O.J. case, is a miracle.
This is important because the vast majority of the time, 99 percent, I’d say, the guy sitting next to me on trial is black or Hispanic. The experiences blacks and Hispanics bring to a jury panel are much different than their Caucasian counterparts, no matter how open-minded those others might be.
Picking a jury is an art, not a science, but having a venire more reflective of the guy being tried would make the chances of acquittal a lot greater. I often wish black people who have been harassed by cops would not necessarily assume (and, therefore, express) that they can’t be fair. Healthy skepticism is not the same as being unfair. Bringing that sense of skepticism about cops, and frankly about any prosecution witness, is important to every jury deliberation. Understanding the world as it is for the defendant sitting at counsel table makes all the difference between a conviction and an acquittal.
Yes, we have a black president, and many people of color have achieved great heights, but that equanimity has not yet reached the criminal courts. If anything, jury panels in certain areas (like Manhattan and even Brooklyn), have become more homogeneously white and, thus, less similar in background to the man being tried.
The O.J. case opened our eyes to the importance of race in how a jury judges evidence. Whether we see a doubt as reasonable or ridiculous depends on our own experiences and subjective perceptions.
Still, twenty years after the LAPD got their comeuppance with the O.J. acquittal, the divide is still great as witnessed, among other things, in the Black Lives Matter movement.
We’re moving in the right direction, but a lot more has to be done.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at [email protected] or tonimessinalaw.com.