Justice on Trial: O.J.
Price of Paradise · Hawaii Public Radio · aired 1995-10-22
Guests: Samuel P. King (U.S. District Court Judge); Jackie Earle (trial attorney)
Duration: 1:05:00

[0:00:01] Randall Roth: Good morning. This is Randy Roth, host of Pop Radio. We're broadcast live each Sunday morning at 8:00 on KHPR and KKUA and then re-broadcast Sunday evenings at 8:00 on KIFO, that's 1380 AM. This program grew out of two best selling books called the Price of Paradise. That's where we get the name Pop. It's an acronym for price of paradise. Everyone who contributed to those books and everyone who works on this radio show believes in the importance of lively and informed public dialogue. To us, the Price of Paradise is the time and effort it takes for everyone to get informed of and interested in the issues shaping the future of our island home.
[0:00:42] Randall Roth: Our airtime is partly paid for by the Hawaii Community Foundation, an organization that encourages grassroots efforts to improve Hawaii and facilitates charitable activities by providing compassionate and efficient administration of a wide variety of permanent charitable funds. Our topic today is the justice system in general and juries in particular. It's timely in the aftermath of the OJ Simpson trial, but it's an area of concern that is always important. With me in the studio are Federal District Court Judge Sam King and Attorney Jackie Earl.
[0:01:18] Randall Roth: Jackie is a partner with the law firm of Goodsoil, Anderson, Quinn, and Stifel. Her practice concentrates in civil litigation and she's handled numerous complex litigation matters, jury and bench trials, arbitrations, and mediations. She has an undergraduate degree from Mount Holyoke and a law degree from the University of Hawaii. Sam King has been a Federal District Court Judge since 1972. Before that, beginning in 1955, he was a State Court Judge. During 1970, he had a little break from being a judge, ran for Governor. He was born in China, has degrees from Yale, and he tells me he's going to be 80 years of age next year. Jackie and Sam, good morning.
[0:02:00] Samuel P. King: Oh, good morning.
[0:02:01] Jackie Earle: Good morning.
[0:02:02] Randall Roth: Well, our topic is justice and juries, and each of you wrote an article that appeared in this morning's focus section of the newspaper. And I get the impression, looking at those articles, that you think that while improvement might be possible, that the jury system basically is not broken. Jackie, is that a fair summary of where you are on this issue?
[0:02:24] Jackie Earle: Randy, I think it's very fair. I think that it would be unfair to use a high-profile Hollywood trial to determine whether it's broken or not. I'm hoping that people will look closer to home when they analyze the jury system and the system of justice, and I think that people who look at Hawaii's system will find that it is not in the shape that might be suggested by the OJ Simpson trial.
[0:02:49] Randall Roth: Okay, well I want to know more about how it's working in Hawaii. But Sam, I think you too feel that the jury system is not just working, but that it's a very, very important thing. Protects us from tyranny, I believe. What do you think?
[0:03:06] Samuel P. King: When I was in private practice, I used to say the last stronghold of tyranny was the Federal District Court. But then when I became a Federal District Judge, I realized we were the last bulwark of liberty, so. But I did want to make the point that the bill of rights guarantees a jury trial in all criminal prosecutions. And many people may not believe that it also guarantees a jury trial if they're sued for more than $20. That's in the federal system. And those guarantees, excuse me, more or less are repeated in every state. So these are constitutional guarantees.
[0:03:45] Samuel P. King: And they've always been considered to be, as John Adams said, that representative government and trial by jury are the heart, heart, and lungs of liberty.
[0:03:58] Randall Roth: Well, it did you follow the OJ trial at all?
[0:04:01] Samuel P. King: Yes, I did.
[0:04:03] Randall Roth: Do you think he did it?
[0:04:05] Samuel P. King: Well, I that's not the right question, is it? Yeah, I don't think I think that, uh, you think the system worked? Well, let me let me put it this way, um, you know, we we were in on a lot of information that the jury didn't get. I remember reading away in the early days that there was some negotiating for him to plead to manslaughter. Now, they deny that there was such negotiating, but it got in the paper. And Kardashian, was that his name, the one who walked off with the clothes in the sack? He was supposed to be negotiating to plead guilty to accessory after a murder.
[0:04:42] Samuel P. King: So we got a lot of information the jury didn't get. They didn't get that. Furthermore, they didn't get the statement that OJ made right after he was first arrested. When he spoke for an hour, that didn't go to the jury. So what they had, there were a lot of doubts. I think Jackie has got some points on that and her she analyzed that to point it out why.
[0:05:06] Randall Roth: And in in in your article Jackie, you point by point explained why it was that a jury of of reasonable, open-minded people trying to do the job as best they could, uh, could conclude, as they did evidently, that the case hadn't been proven beyond a reasonable doubt, that he had done it.
[0:05:29] Jackie Earle: Well Randy, that's uh that's correct, and I think that when you view the the what the jury had before it objectively, and view what the instructions, the judge's instructions to the jury were, I think that it seems that the jury followed the instructions. The jury is supposed to weigh the credibility of the evidence. And so much of the evidence that we were bombarded with through various forms of of media, the jury saw in a very different light than we saw, and it carried a lot of baggage, particularly in the light that the jury saw it.
[0:06:05] Jackie Earle: And I don't think that it can be said that the that the jury was wrong, in assessing this baggage, and finding that it had a right to, to throw out, which it obviously did, an entire testimonies of key witnesses.
[0:06:24] Randall Roth: And when Sam?
[0:06:26] Samuel P. King: Well, I just wanted to point out that in England, the minute it turned out that a major witness was a perjurer, they would have thrown the case out. The whole case. And did. In a case that was pending in England while I was there just a few weeks ago.
[0:06:42] Randall Roth: Now, something that Jackie said, I think is at least in my mind, at the center of all of this, and that is, did the jury follow the instructions? There's there's a concept of jury nullification. And Sam, as I understand it, there are some people who say that that basically a jury is free to not only decide questions of fact, but questions of law as well, that they really don't have to follow the instructions that the judge gives them. What are your thoughts on that?
[0:07:14] Samuel P. King: Well, it is stated a little different way that the jury is entitled to bring with it its own knowledge of the society in which they come, and not just the information that's given to them by.
[0:07:25] Randall Roth: Well, isn't that a nice way of saying that they can ignore the instructions?
[0:07:29] Samuel P. King: Well, for instance, they're very suspicious of police officers. And right after the OJ Simpson case, you saw where eight people in Pennsylvania, or nine maybe, had to have their convictions reversed because it turned out that the police had set them up in Philadelphia. So they're having a great big argument on that. And this isn't the only time that's happened. Professor Borchert of Yale wrote a book convicting the innocent. Uh, it's been going on for a long time. So I think that there's some basis for a little skepticism by jurors when they come from the from the general society. They they know what what it's like.
[0:08:08] Randall Roth: Jackie, any thoughts on on this concept of jury nullification?
[0:08:13] Jackie Earle: Well, I I certainly agree with what, um, Judge King has to say on the subject, but, um, I think that, uh, in this case it didn't happen. I think that jurors, particularly criminal jurors, really are not that accountable. They do have the ability to act in ways that they see as appropriate. Uh, whether it constitutes nullification or not, I think may be a subjective determination. In this case, I don't think that that it did because there's a reasonable basis that supports uh, what the jury did, both in the instructions and in the record.
[0:08:50] Jackie Earle: They were specifically instructed that they were that they could totally reject uh, the testimony of a witness if uh, if they found that the witness had testified falsely, and uh, the prosecutor had to admit in final argument that one of the witnesses, a key witness, uh, uh had testified or had had, well, had testified falsely.
[0:09:14] Randall Roth: Sam, what would you do as judge, if you thought they were ignoring the instructions, that that they just plain were applying their own sense of justice, even though the law is black and white, and the law is different than their sense of justice? What does the judge do?
[0:09:32] Samuel P. King: Well, in a criminal case, they're entitled to do that. That's the way we've structured the system. Yes, we had laws against certain sexual things. Nobody got convicted for that. That's nonsense. So we made it a crime, adultery was a crime, and, you know, we finally got it off the books. I was on the the criminal revision committee that revised the criminal laws of Hawaii, and I tried to get some more of them out of there, but we we got rid of that one. But they just won't convict, that's all. And then the law dies.
[0:10:07] Randall Roth: Okay. Well, last question, go ahead, Jackie.
[0:10:10] Jackie Earle: Just just one more point on that subject, there is a difference between the criminal and the civil, um, in that respect. Because on the criminal side, uh, if the jury acquits, uh, there there's um not an appeal that follows. On the civil side, uh, there is both the possibility of appealing the jury's verdict, regardless of of which side wins, the loser can appeal.
[0:10:31] Jackie Earle: Uh, and also, uh, before that takes place, uh, there's an opportunity to bring a motion to ask the trial judge to enter what's called a judgment notwithstanding the verdict, uh, which is to say if if uh certain things can be demonstrated, and it appears that uh, that that the jury really has not uh followed um what it was it should have followed or that the evidence doesn't support um some aspect of the verdict, the judge can uh can himself nullify, nullify or herself.
[0:11:00] Randall Roth: I see, in a civil trial, but not in a criminal trial.
[0:11:03] Samuel P. King: I just wanted to, if I if you pardon the name drop, I met with Lord Ackner, who was a Law Lord in England and he was saying that during the 1980s, uh you couldn't get a civil, a criminal jury in in London to convict anybody if the evidence depended only on police testimony.
[0:11:23] Randall Roth: Interesting. Well, we've got uh on the line Nick Garcia who is a a local criminal, not a local criminal, a local uh criminal lawyer. You see.
[0:11:34] Samuel P. King: Well I know Nick and that may be, you know, maybe he's both.
[0:11:36] Randall Roth: Nick has defended a number of folks who have been involved in in criminal trials and I believe that Nick is uh is the head of a a local organization of uh of criminal trial lawyers. Nick, are you there?
[0:11:47] Nick Garcia: Yeah, I'm here.
[0:11:48] Randall Roth: I probably misdescribed you, haven't I?
[0:11:50] Nick Garcia: Uh, no, that's a lot of people have described me that way.
[0:11:54] Randall Roth: Uh, but a criminal trial lawyer, um you've been in front of a a lot of juries and and as Jackie just pointed out, there's a difference between a civil trial and a criminal trial. Um, any thoughts that you'd like to share to what you've you've heard this far this morning?
[0:12:08] Nick Garcia: Well, uh when you're discussing whether or not a jury system should be preserved or or taken away, I think it should be preserved, it's obvious. But the problem with the jury system is that the jury system reflects the problems of society. Where you have a polarized society that you find more and more in the mainland, you're going to have jurors coming from that polarized society acting in a polarized manner.
[0:12:38] Nick Garcia: Like like in Los Angeles, you had the three you you have three big cases in Los Angeles. You have the the Semi Valley verdict in Rodney King where a practically all white jury acquitted the police officers for obviously the white police officers. Yeah, a white police officers were beating Rodney King. And everybody saw it in video. It was a brutal thing and yet they were acquitted.
[0:13:01] Nick Garcia: During the riots, the Reginald Denny case, where you have that white uh truck driver who was uh brutally beaten in TV where the TV showed it by a whole bunch of rioters, black rioters, and a predominantly black jury basically acquitted all of them except for some minor uh petty misdemeanors. And then you have the the OJ case. And this is the same community. This is the same Los Angeles community.
[0:13:33] Nick Garcia: My view is that all those three verdicts were outrageous. But a jury is only as good as its community it reflects, and the community is polarized. You're going to have problems, so you can't cure the system by trying to change the jury system. You've got to address the community problems in order to have a functioning jury system that works.
[0:13:56] Randall Roth: Well Nick, as I listen to you, I'm thinking that that jury selection must be terribly important to somebody like you. You must feel as though once the jury has been selected, uh a major major piece of of your effort uh has has been completed.
[0:14:12] Nick Garcia: Yeah, it's it's often been said among criminal trial lawyers, and I'm sure Judge King knows this and and I'm sure Miss Earl also knows this, that you've uh you've pretty much won or lost your case after you've picked the jury.
[0:14:27] Randall Roth: Boy, that that doesn't sound good to me but it's it's always been true. I mean it's always been all trial lawyers have have said that. I felt that for many years.
[0:14:38] Nick Garcia: Okay. But the uh the the problem is we've got to address the problems of society. You cannot just, the legal system We're just We're just going to be a mirror, huh? It is a mirror of of the problems of society. Okay.
[0:14:52] Randall Roth: Amen, brother. Nick, I I appreciate you being available to us this morning. If if you've got a little bit more time, want to stay on the line, uh you know, we'll try to come back to you later in the hour to get any additional thoughts you might have, but I I know you're just back from a a trip and and if you need to go, why we sure understand that.
[0:15:08] Nick Garcia: Okay. Thank you.
[0:15:10] Samuel P. King: I had a, uh, when I was going to Yale, they used to have these blue ribbon federal juries. Every one of them was and especially in wintertime, they were all uh hard bitten farmers, and the same bunch would turn up week after week, convict convict, convict.
[0:15:32] Randall Roth: Well, in in just a minute, I I want to ask you about uh, you know, who shows up to to serve on juries and whether it is a a good cross section of the community, Jackie?
[0:15:41] Jackie Earle: Yeah, I'd like to to add a comment on uh one of the the points that Nick made, uh just as a point of of what I would consider to be appropriate clarification. Um, it is said on the civil side as well that uh often that um an attorney has won or lost the case based upon jury selection. Uh, but you can't leave it there because it doesn't mean that you've won or lost depending upon who's on the jury.
[0:16:03] Jackie Earle: Uh, the the uh the wisdom is that you've won or lost depending upon how you have presented your case to the jury, how you have have uh sensitized the jury to some of the hard issues in your case, so that when the time comes for the jury to be reviewing the evidence, the jury then will uh, will be able to, to put into its analysis of what comes uh uh now and later, uh what you've said during jury selection.
[0:16:30] Randall Roth: That that makes me feel a little better about uh about the system. You're listening to Pop Radio. My name is Randy Roth. We're talking about the justice system, and especially juries. My guests in the studio are Jackie Earl, she's a partner with the law firm of Goodsoil, Anderson, Quinn, and Stifel, and has been involved in a great deal of civil litigation as an attorney for various parties. And we also have Sam King, who is a Federal District Court Judge here in Hawaii. He has been a Federal District Court Judge since 1972. He has been a judge for the last 40 years.
[0:17:04] Randall Roth: If you would like to ask them a question or make a brief comment, just call us at 955-8821. Neighbor Islanders are always invited to call us collect. The number again is 955-8821. And if you tuned in a little bit late and you'd like to catch the entire show, it'll be on tonight on KIFO 1380 AM beginning at 8:00. We've got uh several people on the line already. Let's go first to Frank in Wainai. Good morning, Frank.
[0:17:32] Frank: Yes, good morning. Uh a question for Judge King. Years ago, the criminal justice system was criticized as Blacks were systematically excluded from juries, mostly in the south. When there was a white defendant and a black victim, leading to, you know, acquittals despite overwhelming evidence. Now the Supreme Court recently limited the use of peremptory challenges when the challenge would be against a black juror. Now the pendulum seems to have swung the other way with mostly black juries acquitting black defendants with white victims despite overwhelming evidence. And as mentioned, you had the Deny case, the Yanko Washington case in New York, the Simpson case.
[0:18:15] Frank: Uh do you think the Supreme Court has opened a Pandora's box that's going to lead to more and more racial problems? And as an aside, judge, would you comment on your future? We just can't afford to lose you. You have common sense and a sense of humor, something that's very much lacking. Go ahead.
[0:18:33] Samuel P. King: Well, regarding my future, I'm feeling great and I'm going to take a vacation every other month. But um, your your analysis of what's going on, I think was answered by our friend Nick Garcia who said the problem is with society, not with the jury system. Um, I I I can't get excited when people are found not guilty. Al Capone was found not guilty. They finally got him for for not paying his tax. was found not guilty of committing murders. William Prince Smith was found not guilty of having rape somebody down in Florida.
[0:19:07] Randall Roth: Are you suggesting we'd have a problem if people were being found guilty when we strongly suspected they weren't guilty, but having somebody not guilty when we think they're guilty isn't as big a problem?
[0:19:16] Samuel P. King: That's right. Because the criminal justice system is not the only penalty that suffered by somebody who is tried and found not guilty.
[0:19:27] Randall Roth: Oh you think Goje might have some civil problem?
[0:19:29] Samuel P. King: Well, it cost him a lot of money and they want to throw him out of his club and the people in where he lives want to get out of the neighborhood.
[0:19:41] Randall Roth: Okay, Jackie, any thoughts on Frank's comments and questions?
[0:19:44] Jackie Earle: Yes, just a brief comment about the exclusion of blacks from a jury. The Supreme Court has ruled that you can't systematically exclude only on the basis of race or gender. So it's not just aimed at blacks, but that does not mean that you can't exercise a peremptory challenge against someone who is black or is of a protected gender.
[0:20:05] Randall Roth: Can you explain that term, peremptory?
[0:20:07] Jackie Earle: Okay, a juror during jury selection process, a juror can be taken off the panel for cause, which is to say if there's some reason why that juror would not be a suitable juror for the case.
[0:20:23] Randall Roth: Like they said they've already decided they want to hang this guy.
[0:20:25] Jackie Earle: That would certainly be one thing or in the OJ trial because they read newspapers, you know for whatever reason a juror might be excluded from the case. That juror could be excluded for cause. A peremptory challenge is something that attorney have to exercise after the jury panel has already been basically been seated and gone through the questions that would determine whether they could be disqualified for for cause and a peremptory challenge is simply some the attorney can simply say I ask that juror number three be excused, and thank you.
[0:21:08] Randall Roth: And no reason given.
[0:21:08] Samuel P. King: The court is saying it's okay if it's an intuition that you don't want this person, but if it's because they're black or because of their male female or That's right. Well, we're going to eventually, we should abolish peremptory challenges frankly.
[0:21:42] Randall Roth: Okay. Frank, thank you for your call. Our our lines are full as usual and so we're going to try to move a little bit more quickly from this point on. Let's go to Zuma in Diamond Head area. Good morning, Zuma.
[0:21:52] Zuma: Hello, good morning, Randy, and thanks for another great show. Um Jackie, thank you very much for your opening comments. I really appreciate that. Um so my question is for you obviously. Um could you explain why the the popular mind or sort of like the typical response in this in this country is that that that Mr. Simpson was guilty and that the system is terrible and that it's it's ridiculous and it needs to be revised. Could you possibly explain that or give me your response or your view on that?
[0:22:20] Jackie Earle: Well, just in a nutshell, I think as I mentioned in the article, I think that that the public at large was turned into shadow jurors. Uh we received a whole lot more information and we received it not necessarily from reliable sources. There were commentators, almost virtually everyone became a commentator, which was a little bit scary. Uh it shocked me to see microphones stuck in front of certain people and suddenly they became a pundit. And so the the filter through which the the public saw the evidence was a very different filter than or practically no filter than what the rules of evidence did to the evidence that went was presented to the jury. I think that very few people in on this shadow jury got their information and understanding of what the case was was all about and what the jury was supposed to do by actually listening to the play by play of the live trial. I think we got it from secondary and and and even more remote sources.
[0:23:19] Samuel P. King: Could I just mention also in line of what Jackie said, the jury didn't find OJ innocent. They found him not guilty. And that means that they found that on the evidence that was presented before them, they were not convinced that the prosecution had proved guilt beyond a reasonable doubt. Now, this is sort of a sophisticated thought. But you know, OJ runs around saying he's innocent, but that's another story.
[0:23:46] Randall Roth: And and you're saying there are very good reasons why the information presented to the jury is is less than the information available to everyone.
[0:23:53] Samuel P. King: Very good. Jackie covered that earlier that it came with baggage.
[0:23:58] Zuma: Zuma, thank you. We have Alan in Hawaii Kai. Good morning, Alan.
[0:24:03] Alan: Good morning. It's pleasure to be with you this morning. I guess my question goes to the the issue of jury selection and my concern is that we're not getting a good cross section in our community who actually do serve on juries. And if I can give you my own example, uh last week I was selected for a jury duty in a circuit court, and actually was placed on a jury through the numbered selection. And I was challenged and removed as a peremptory challenge by the defense in a criminal case. Uh and let me give you my background a little bit. Uh Can you do this real quickly, Alan?
[0:24:37] Alan: Sure I can. Well educated, uh graduate degrees, uh retired military officer, uh businessman in town, very well respected. Uh and I'm also white. However, uh during the jury selection process, uh during the jury selection, at least one of the jurors uh was a mother of a son who had a similar uh case as the defendant in the case. And of course, she was not removed. And there are several other people that had incidents with uh police uh who stayed on the jury. Well, I'm not disappointed in being removed from the jury, but I guess my concern is that our community may be suffering uh from a lack of some very good cross section of our community and it may be sort of limited to those people who either want to serve uh because they get paid for it, or otherwise not employed and available.
[0:25:30] Samuel P. King: We used to have a system where you could go down and put your name on the jury list and get selected. And it was run by the clerk of the federal court. I think the state had the the territory back in those days had the same thing. This is these were known as blue ribbon juries and that that you know, that's terrible. That's a terrible system. Because you got people who all had set ideas and it wasn't really a cross section. We now pick jurors from the voting list, the driver's licenses. They used to take them off of the utility things. But you know Sam, the the impression I have is that uh people whose whose time is valuable as measured by our market economy are very likely to find a way not to serve. Those folks whose time isn't as valuable as measured by our market economy um I think are more likely to serve. is is that wrong?
[0:26:25] Samuel P. King: Well, yes and no. Uh that hasn't been my experience very much. And I think I mentioned in my uh written stuff that didn't get printed that the Chinese say three shoemakers are the equal of one great philosopher. Oh no, that ended up in the paper this morning. That's my favorite line. So, I I going to ask you, what does it mean? Well, I'm perfectly happy with uh 12 people who are taken right out of the community who not necessarily went to college for that matter. They learn a certain amount. I'm more interested in how old they are.
[0:26:56] Randall Roth: Okay. Uh Alan, thank you for your your call and your comments. They're very interesting. Thank you so much and it's a great show. On line four, we have Virginia in Makiki. And in parentheses, it says juror. Good morning, Virginia.
[0:27:08] Virginia: Uh good morning. I just wanted to uh uh thank the uh guests for their positive uh reaction to juries. I I served on a jury about 2 years ago. I'm a professor at UH and I just wanted to say how uh what a marvelous experience it was for me. It was a complete cross section of the community, a criminal case, and the care with which the jury uh deliberated the matter, uh the attention uh if one person missed a detail, the other person got it. And I just wanted to affirm the jury system because I was incredibly impressed by the workings of the jury on which I served. And that's all I wanted to say. Did you find them guilty or not guilty?
[0:27:53] Virginia: Guilty. Okay. Thank you, Virginia. Well it it was a racial mix as well and uh uh it was uh a wonderful experience and that's what I wanted to say. Thank you.
[0:28:05] Samuel P. King: Could I just mention about the careful uh consideration, everybody who was talking about how fast the jury came in in the OJ case. They'd been, they'd been um imprisoned for 9 months. They were, they were imprisoned. And they had to listen to the judge for a whole day on Friday. They had Saturday and Sunday. They had to listen to closing arguments on Monday and Tuesday. I would have been ready to decide the case before they even started arguing. Mhm. Yeah, you're very interesting.
[0:28:35] Randall Roth: We have a call from Makiki. Steve, good morning, Steve.
[0:28:39] Steve: Uh good morning. Uh let's see, I have a uh a tough one to throw you here and that is uh well, I it seems to me, I I support a group called the Fully Informed Jury Association. You know, I got a bunch of stuff from them sent to me, brochures and newsletters and uh I don't know how many folks belong to that organization, Steve, but uh they sure print out a lot of literature.
[0:29:02] Steve: Well, they do, and you know, uh actually, I don't think they're too active here except for sending literature out, but it appears to me that in regards to sequestration and the frustration that people have with the legal system that either the judge needs to come down to the level of the jury I don't think we'll go for that, or the jury needs to be elevated to the kind of respect and dignity that the judge has. I'm appalled at the way that the system uh continually has disrespect for the jurors. Can you give me a specific example, Steve?
[0:29:38] Steve: Well, uh the way that people uh in the OJ trial uh seemed to think that the jurors didn't uh deliberate long enough. The judge just had a good comment on that. It um uh the way that the the uh attorneys tamper with the makeup of the jury. Mhm. It's supposed to be peers. Now, we've stretched that concept a long way. You know by the time the judge and the uh opposing attorneys get through with the uh with the process of deciding who's going to be in it, you know, it essentially comes down to this. I I think that people should be fully informed because the idea of controlling the flow of information is absolutely a fool's errand. It is impossible, it is improbable. It is a fool's errand.
[0:30:33] Randall Roth: Okay. All right. Well let me read I I would love to hear your comments on it if you have any. Okay. Uh let me read something from one of the piece of information that this particular organization sent to me and evidently this is a brochure that's handed to people outside the courthouse when they uh are going in to to serve as a juror. And groups were successful. And here groups were successful. And here groups were successful.
[0:38:00] Speaker 1: it went on to the media in the the OJ trial, which I think begs the point of of the value of a jury consultant.
[0:38:05] Speaker 2: But you think there is a value? I think I think there can be, and I think that uh that it's very very important. If I'm a a defendant in a trial, criminal or or civil, I want my attorney to know just a whole lot about who is uh is deciding my case, whether it's a jury or whether it's a judge or an arbitrator. Whoever is the the person or the body of people who is are deciding my case, I want to know a whole lot about how they think.
[0:38:31] Speaker 3: Okay. New week said that, uh, let's see, what did they say about the what they got as a jury? They got a jury who people who have never who don't didn't read the newspaper regularly, who liked athletes, um, who, uh, favored the defense from the start, were regular tabloid viewers and didn't like the legal system. Um, the OJ case, the consultant submitted an 80 page list of 294 questions for prospective jurors including essay questions like what do you think is the main cause of domestic violence? I would never have allowed that.
[0:38:59] Speaker 1: I was going to say that's another criticism of Judge Eto, right?
[0:39:12] Speaker 3: Well, I don't know whether he that came before him or was done before he took the case.
[0:39:18] Speaker 1: Oh, I see. Okay. Uh Wayne, did you have another question?
[0:39:21] Speaker 4: Well, I just wanted to ask in the same sense that what it what are the qualifications of a jury consultant? What, uh, you know, are they psychologists or the attorneys? What is their background?
[0:39:31] Speaker 2: Or or or psychics or what? Oh, yes, would be the answer to the question. They they range from being handwriting analysts to being um psychologist to being attorneys. Um my experience is that there are a lot of of people from different persuasions who um are in that uh that profession. In in this pair of time they use a fork stick to find water.
[0:39:56] Speaker 1: Thank you, Jack. I just one very quick point of clarification, though. Um, the the way a jury is selected does not enable an attorney to cherry pick from uh all of the panelists the jurors who are most favorable to his or her case. Uh, what normally happens is that um the a panel is called in that may have um a 100 people, may have 50 people. It depends on the case and the duration and how many people you feel that need to be called up um in order to uh to get the the jury that you need to have. Um, the court clerk then uh has a a in some courts has a big barrel that has all of the the names in each juror has a number and the the clerk draws numbers out of the barrel. Uh, and those the first 12 people whose numbers are called are seated. They're then questioned then as they uh are rotated off the panel for some reason, another person comes on. So, it's not like uh all of the jurors are questioned and then someone is unfairly picking um the ones most favorable. No cherry picking as you put it.
[0:40:56] Speaker 1: No cherry picking. Okay. Uh, we go to Vernon in White YPO. Good morning, Vernon.
[0:41:01] Speaker 5: Good morning. I got a question. I served on a jury about three, four years ago and, uh, does can can the jurors be polled after the uh decision to see what they base their decisions on. My experience has been that, uh, uh from talking, you know, with that jury, um, is that some of the decisions or things that change their mind to make their mind up for them were not exactly relevant or not really, uh, uh, reasonable.
[0:41:30] Speaker 1: Vernon, let me read something from the newspaper just a few days ago. Uh, the the headline is lawyer contesting rule by Hawaii High Court. The first paragraph. A Honolulu lawyer is contesting a Hawaii Supreme Court rule that says an attorney cannot speak to jurors after a case unless the opposing lawyer is present. So Jackie, does that mean that if if both lawyers are willing to talk to a juror afterward that they can do so, but if only one of the lawyers wants to do so, then the rule in Hawaii, which is being questioned says, he or she can't do so?
[0:42:05] Speaker 2: That's that's correct. That is the present rule.
[0:42:07] Speaker 1: Why, why would that be the rule?
[0:42:10] Speaker 2: Uh, that I have to refer to the lawmakers.
[0:42:14] Speaker 1: Oh, I thought you were pointing to Sam. I'm not sure if he made the rules.
[0:42:18] Speaker 3: I let him talk to the jurors.
[0:42:19] Speaker 1: I was going to say, isn't the norm that uh either one could talk to the jurors?
[0:42:22] Speaker 3: No, in California, you can't. San Diego, they get very excited about it. But, uh, let me point out that you don't want to believe what a juror tells you after the decision.
[0:42:33] Speaker 1: Why is that?
[0:42:34] Speaker 3: Well, they may have had other reasons they don't want to tell you. I had a jury one time went to 11 to one for guilt and the one lady held out, and, uh, eventually we found out, but not from her, that she had gotten a vision. And that was her reason.
[0:42:48] Speaker 1: That was her reason.
[0:42:49] Speaker 3: That was her reason for holding out that this kid hadn't done it. You would know they were eyewitnesses. But anyway. Okay. You know, they always tell you the truth.
[0:42:56] Speaker 1: Vernon, does that answer your question?
[0:42:57] Speaker 5: Well, busy but uh, there's no procedure then to, uh, to poll the jurors to to ascertain whether or not the jury system really does work or not. You know, people well oh yes, there is. Oh yes, there is.
[0:43:08] Speaker 3: Yeah, if a juror says that he he, uh, came that way because somebody gave him $1,000, then, uh, all hell will break loose.
[0:43:15] Speaker 1: Well, plus if if both lawyers are willing, then they can sit down and and poll in in Hawaii. In Hawaii. Yeah.
[0:43:21] Speaker 2: Well, there's a difference between polling the jury, which is a term of art that is is applied to what the questioning that goes on in the courtroom as the as the verdict is read. Uh, and uh if either, uh, party wants to have the jury polled, why the the clerk then will ask each juror individually is this your verdict? But that's the extent of debriefing or de-briefing Okay, okay. Cuz we don't ask them the reason in the courtroom.
[0:43:46] Speaker 1: Okay. Vernon, thank you for your call. We appreciate it. Our our next caller and, uh, it doesn't say where this caller is from and I'm not sure how to pronounce this, uh, is it Iams?
[0:43:57] Speaker 6: Not quite. Not quite. Who is this? It's it's Iams, but, uh, okay. It's it's um, uh, something has puzzled me for a long time and it came up when you referred to material that the public knew and the juries didn't. What is the logic behind their ever not knowing everything possible to have heard?
[0:44:15] Speaker 1: That's a very good question and Sam King, we need an answer.
[0:44:19] Speaker 3: Well, the original statement that was given by OJ, the, uh, prosecution kept it out because the the defense couldn't offer it because they'd have to put him on. Uh, they thought they were smart by not putting it on because it had all kinds of excuses in it. So it never got to the jury. The, uh, negotiating for a possible plea to manslaughter, if it happened, is not evidence. That's just lawyers talking to each other. Uh-huh. So, uh, that wouldn't go to the jury. But, the newspapers printed it.
[0:44:51] Speaker 3: They also printed a document which Judge Eto said was not going to go to the jury. They printed it in full that afternoon. I'm very, but, you know, I was very shocked by that.
[0:45:03] Speaker 6: So it's the the whim of the the judge as to whether or not it should go to the jury.
[0:45:08] Speaker 3: Uh, that's a that's a question of evidence as to whether it's admissible.
[0:45:13] Speaker 6: Yeah. But, but what determines admissibility?
[0:45:16] Speaker 3: Well, whether it's relevant, Oh, or whether it's too prejudicial. Now, for instance, uh, it's not relevant that the lawyers may have talked about a possible plea. That's not evidence. That's That's lawyers they they could talk about a possible plea if if a guy is innocent. We have this situation where if a man's charged with murder, he can plead to a lesser charge just to escape the death penalty, even though he didn't do it.
[0:45:40] Speaker 1: I'm disappointed you're not explaining the hearsay rule.
[0:45:43] Speaker 3: Well, I try not to because Because you don't have a a week to to do that, huh? I always figure out a way of getting around it. Okay. Thank you for your call.
[0:45:52] Speaker 1: We have another caller. Uh, Steve from Honolulu. Good morning, Steve.
[0:45:56] Speaker 7: Hi, how are you? Good morning. Uh, this will be a constitutional question. What if in their, uh, closing arguments, um, they could suggest, uh, how the evidence or they have they would be able to suggest to the judge in their in the instructions to the jury, maybe two or three points about the evidence and lack of evidence that the jury must discuss in the jury room. So they wouldn't be able to just jump to a conclusion and vote, uh, not guilty or guilty.
[0:46:31] Speaker 1: Well, it'd be simpler I suppose to require them to spend at least so many hours in there together. It'd be hard to force them to do anything in particular, wouldn't it, Jackie?
[0:46:40] Speaker 2: Well, I think it would, uh, but uh, again, getting back to something that Judge King said earlier, I think that that uh, that we can't assume that the that the OJ jury uh didn't uh deliberate or didn't didn't think through that the individuals didn't think through uh before uh coming into the the arena where they were to deliberate, uh, all of the evidence.
[0:48:00] Speaker 1: The fact that it it was quick doesn't trouble you at all.
[0:48:03] Speaker 2: It doesn't trouble me at all. What all they have to do is agree.
[0:48:06] Speaker 3: I don't even think it was quick. With nine months. Oh, oh, the four hour part is, uh, is just how long it takes to raise your hand or or submit a secret ballot, huh? To the extent that they don't agree, they have to, uh, engage each other to uh, discuss their their viewpoints and see if they can come to agreement. But if they agreed then Okay.
[0:48:28] Speaker 7: What would it be a constitutional issue if a judge took that direction after this case in his closing arguments with suggestions to the from the both lawyers, the defense and the prosecution, in in any case.
[0:48:44] Speaker 3: Sam, good Good, good what what what would the judge say? You mean you have to deliberate? Yeah, you would have to go over two or three points. You have to do a good job. From both sides. And these are the points.
[0:48:54] Speaker 1: Well, I would never do that. I would never do that. No, that because, uh, when you select the points, you're telling the jury they can't think of any other points. And they may want to think of something that you didn't mention.
[0:49:03] Speaker 2: Yeah, that's true. And just because the lawyers agree on something doesn't mean it's worth it's something you ought to do.
[0:49:08] Speaker 7: So it would be argued out to infinity because one side would say bias.
[0:49:12] Speaker 3: Yes.
[0:49:13] Speaker 1: Jackie?
[0:49:14] Speaker 2: On the other hand, that's something that, uh, that it would be entirely appropriate for the attorneys in their final argument to, uh, encourage jurors. And in fact, they usually do encourage jurors to look at this very closely, or to consider that, or to, uh, you know, they that's what they try to do.
[0:49:28] Speaker 7: But it it appeared that the wife beating in this case wasn't looked at at all and, and that seemed to be Some of the women jurors said it didn't even impress them.
[0:49:37] Speaker 3: One of them one of them was quoted saying it had nothing to do with, uh Yeah, what the white meeting. Everybody does it, uh, boy I tell you.
[0:49:44] Speaker 1: It's a the new world. Troubling. Steve, thank you for your call. As as usual, we've got more callers than we can get to and we're in the last 15 minutes of the show.
[0:49:53] Speaker 1: In case you joined us late, this is Pop Radio. We're talking about juries. We have in the studio Jackie Earl, whose practice concentrates in civil litigation. She's handled numerous complex litigation matters, jury and bench trials, arbitrations, mediations. She's a partner with the law firm of Goodso Anderson, Quinn and Stifel. And also Sam King, who is a federal district court judge, has been a federal district court judge for the last 23 years and has been a judge for the last 40 years. If you'd like to, um, try to get a call in, you can try it 9558821, but we're into the last, uh, 14 minutes of our hour. If you'd like to listen to the entire show tonight at 8:00 on KIFO 1380 a.m., you'll have that opportunity.
[0:50:05] Speaker 1: Well, let's go to Bill in Hawaii Kai. Good morning, Bill.
[0:50:08] Speaker 8: Oh, good morning. Uh Judge King has made reference a couple of times to English practice. And, um when I was a young man, I used to go to courts often, particularly because I was interested in how trials were run. And I remember one particular statement being made a kind of cornerstone of court practice. And it was this: Justice must not only be done, it must be seen to be done. And that suggests that there's more to issue than the specific charge that the court is hearing. Um it seems that there's an importance of appearance, the public effect and the aftermath of trials. And I just wonder what um um Mrs. Earl and uh Judge King would say in response to this.
[0:51:18] Speaker 1: Yeah, and and and I think, at least as I listen to to Bill's comments, I'm thinking cameras in the courtroom. Some people have been very critical of that aspect of the OJ trial. Other people uh feel that justice needs to be seen. Uh, Jackie, why don't you respond first and then we'll get Sam's thoughts.
[0:51:35] Speaker 2: Okay. Well, well, getting to uh uh Bill's comment, uh I think popular acceptance of the system of justice is absolutely essential, um in a democratic society. Uh and uh so It has to be seen in order to be accepted? I believe that that is the case, that it needs to be perceived. If it stops being perceived as being, uh, fair, uh, and equitable, then uh It doesn't matter that it is fair, it has to be perceived. You erode popular acceptance. That doesn't mean that you have to uh to sell out in order to get acceptance. I think that it means instead that what you have to do is to be able to to make sure that the public understands that what happened was fair and that how it came why the rules uh exist and uh how they operated to bring, uh, a particular result about. Um, as far as cameras in the courtrooms are concerned, I have no objection personally to having um something that simply replays what's going on. It's the commentary and the tabloids and and sticking the microphone up in the the face of of someone like Fay Resnick and asking her to comment on the jury system. Uh that that troubles me, uh, enormously.
[0:52:44] Speaker 3: Sam, any thoughts? I have a, uh, um, a solution to the TV problem. I think TV coverage is necessary because we must see the operation. You know, in the old days, walk down to the courthouse and watch the watch the, uh, the trial, but you can't do that nowadays. But if you let a commercial outfit run the camera, they're going to zoom in on a face It's going to become a soap opera. They're going to wander around and show OJ and then show his lawyer and so forth. I'm for the court running the system and having a fixed camera lens in the back and it never moves and it shows the judge and the lawyers and the witnesses and and that's the same thing the jury would see or the spectator would see. If you want to wander around, you you look at the screen and and and move your eyes around to see, but So, it it would be boring, but but it would be accessible. People would would be able to see whether the system is Well, it might not be boring. Okay, I take it back. Uh, Bill, thank you for your call. We we need to move on. We have Jerell from Ewa Beach. Good morning, Jerell. Good morning.
[0:53:22] Speaker 9: I was just concerned that of of all this, uh, jury, uh, bashing, uh, why when John DeLorean, uh, the first semi Valley verdict, uh, Byron De La Beckwith, uh, there was no uproar over the jury at that time. Secondly, Well let let's let's take let's take that one first. Sam, what's your reaction to what Jerell's saying?
[0:54:16] Speaker 3: Well, he mentions some names as to which there was no uproar, but, uh, I remember cases in which there was plenty of uproar. Uh, Dr. Shepherd who was convicted of killing his wife, and there was a terrific uproar when he was, uh, eventually Well, I I think Jerell's point goes along racial lines. Is is that what you're hearing or or not? Well, I I suppose that's what the implication is and, of course, that's what the press said. All the media said, two uh two Americas, white and black. And I suppose part of that was in there. But there's always been, uh, you you could pick divisions whenever you got a jury thing like this, two Americas rich and poor. Mhm. You know, so, uh So if you're looking for that, you can find it. Okay. Jerell, do you have another question? Yes, and the final one. And I appreciate, uh You give me the opportunity. Excuse me, Jerell, are you on a speaker phone? Yes. Um, can you can you go on to the, the regular phone, we're getting a lot of feedback. I'm sorry. Is that I'm sorry, is that better? That's much better. Thank you. Thank you, sir. Uh, the final comment is that no one is looking to the prosecution. The defense didn't call Mark Ferman. The defense didn't, uh, cross-contaminate the evidence. The defense didn't have a lab technician who's husband worked for LAPD homicide. The defense, uh, didn't try to hide every piece of exculpatory evidence there was favoring OJ's defense. And I just wonder, how many innocent people are in California State prison at this time who couldn't expose Mark Furman, Marcia Clark, Ito, who was an ex-prosecutor, which is totally unfair? I think there should be someone neutral as a judge. So you're you're saying if if OJ hadn't had the dream team, or if if his lawyers hadn't done such a good job, that an innocent man would have been in jail? Not only that, I'm concerned for the the innocent people who are probably in jail right now in California who couldn't expose this fraudulent system who that looks to put someone in in prison for the rest of their life on perjured testimony. It's not outrageous. Let's let's get a reaction to that. Jackie, do you have any thoughts?
[0:55:16] Speaker 2: I think one of the things that uh that may occur, and I don't know to what extent it would succeed is that uh criminal um defendants whose who were convicted on the basis of Furman's testimony may very well be uh making an attempt in California to reopen their uh uh their cases. After they've served 10 years. You can't take that away, but uh but Well, this is one of the reasons I'm opposed to the death penalty because the system is not perfect and and you do get to people who are not not guilty, who are convicted, and some of them have been hanged uh back in the old days. I'm curious. We've got more callers, and I'm going to try to get to them in in the few minutes we have left, but Nick Garcia is is back on the line. Nick is the head of the local uh Criminal Trial Lawyers Association. And, uh Nick, I'm curious. Did you hear uh the last comment from our caller? Yeah. What what what's your reaction as a criminal trial lawyer? Um, I found that the, I find Hawaii jurors, I I think, we don't have that kind of polarization, I think, in Hawaii. And I find, I've had maybe over 200 jury trials, and, uh, 200 jury trials? Over, you know, and, uh That's amazing. And I would say I would say I disagreed vehemently with about six of them. Is that right? I won't ask you how many of them, if guilty. Oh, well, you called the unfortunately, I mean, fortunately, there were a lot more, uh, favorable verdicts. You see, a lot of times, we're very happy with like a manslaughter instead of a murder or, uh, Oh yes. Or, you know, lesser. So, fortunately, the the the greater percentage was with the favorable verdicts. Well, Well Nick,
[0:57:00] Randall Roth: Do you do you have the feeling along the lines of the last caller that tainted evidence is is a common problem?
[0:57:08] Guest: Uh
[0:57:09] Randall Roth: that somebody's being framed?
[0:57:11] Guest: I I haven't found it being in in a way there might be some isolated instances, but uh in my trials, uh we do very, you know, strong investigations and uh uh, most of the time, I mean they we've had problems where they have a notorious uh defendant, you know, like a who who type or something like that. But the general run of the middle defendant is the police don't have any particular acts to grind. And uh so you wouldn't you wouldn't find that.
[0:57:42] Randall Roth: So you don't have the same degree of of uh suspicion about the uh police in Hawaii that evidently a number of folks have about the police in LA?
[0:57:52] Guest: Yeah, you call that, I think uh I think we don't have a lot of the polarization problems that that the mainland does and uh I think Judge King would would agree with me. He's he's uh seen a lot of criminal trials here. They're pretty much by the book.
[0:58:06] Randall Roth: Okay. Hawaii juries are very good. Nick, thank you. We really appreciate uh your thoughts, very very interesting.
[0:58:12] Guest: Okay. Thanks a lot and um hi there, judge. Hi.
[0:58:18] Randall Roth: They don't overwork my son now. We we teach people in law school to always say hi to the judge. Uh we've got a couple more people on the line. Uh next is Peter from the Saint Louis area. Good morning, Peter.
[0:58:29] Guest: Good morning. How are you doing?
[0:58:30] Randall Roth: Good morning. Doing just fine.
[0:58:32] Guest: Um I just wanted I appreciate the comment about the good juries in uh Hawaii. I was on a jury about 10 years ago and it was a rape case and it was more or less tried in the media. If you dread just the media accounts, you would have found the guy guilty and hanged him immediately. Whereas the jury that I was on found him not guilty. You really do have to find the person beyond a reasonable doubt, guilty beyond a reasonable doubt.
[0:59:02] Guest: And I think that's that's the point that was made earlier, but it's it's often overlooked. There has to be no reasonable doubt and and that was their guiding the guiding factor in our um in our deliberations.
[0:59:15] Randall Roth: Okay. Peter, we appreciate your comment.
[0:59:18] Guest: Thank you.
[0:59:18] Randall Roth: Uh we've got time for one more caller. Let's go to Ingrid on Maui. Good morning, Ingrid.
[0:59:23] Guest: Oh, good morning. I don't have a question, just a comment.
[0:59:26] Randall Roth: Okay.
[0:59:27] Guest: Yeah. I say as long as the criminal can buy his freedom by spending millions on the so-called dream team, I think there is no justice.
[0:59:37] Randall Roth: Okay, that's an interesting comment. I I I'm going to get No, that's not all. I have more. Well, we're going to have to hang on hang on Ingrid, because you've raised a very interesting point. Sam King, what do you think of that?
[0:59:48] Guest: I think at least three of the lawyers on the dream team were terrible. I would have replaced them with court appointed attorneys from our own defender system and they would have done a better job.
[0:59:58] Randall Roth: So the fact that they were high priced Okay. The F. Lee Bailey was a waste of time. What? F. Lee Bailey is Yeah. F. Lee Bailey. Oh, F. Lee Bailey.
[1:00:07] Guest: Okay. And there were others too.
[1:00:09] Randall Roth: Okay. The Kardashian was willing to plead guilty to accessory after manslaughter to two murder, for disposing of OJ's clothes. I mean, you know, that I I didn't think they were all that good. Well, if we if we take a couple steps back from the OJ trial, do you think that the quality, forget whether they have a high fee or no fee because they're a public defender, do you think the quality of the lawyer makes a significant difference, whether it's a civil trial or criminal trial? How much difference does the quality of the lawyer make?
[1:00:39] Guest: Terrific, but it doesn't all only come with money.
[1:00:42] Randall Roth: Okay. Okay. And Jackie, you any thoughts you have on this one?
[1:00:46] Guest: I agree with that. I think that the quality of the lawyer can make or break the case.
[1:00:49] Randall Roth: Okay, Ingrid?
[1:00:50] Guest: Yes, I have another comment.
[1:00:52] Randall Roth: You've got time for one more real quick one.
[1:00:54] Guest: Okay. As long as a lawyer must defend a criminal, even if he confesses committing the crime, we have murderers on the street, repeat rapists, robbers, burglars, threatening the public and frustrating police who put their lives on the line to arrest them only to see the offenders released on the so-called technical grounds. But that's not just Let me ask Sam King, what about that sometimes it is a quote mere technicality? What are your thoughts about letting somebody free on a mere technicality? Well, I'm going to if I if I get your address, I'll send you a copy of Convicting the Innocent.
[1:01:30] Randall Roth: In other words, you you would say those technical rules are there for a reason.
[1:01:33] Guest: They're very important.
[1:01:34] Randall Roth: Okay. Ingrid, thank you for your call. I'd like to hear more your comments, but we're down to the last minute. Oh, Ingrid, I just don't have time. I'm I'm sorry. Um Sam, thank you for coming. Uh My pleasure. Any any quick comment you want to make before we sign off?
[1:01:49] Guest: Well, I think it's one of our foundations of our liberty and I can only repeat what John Adams said, representative government and jury trial are the heart and lungs of our system.
[1:01:59] Randall Roth: Okay. Thank you much. And Jackie, Earl, we really appreciate your spending your time with us this morning. Uh this has been Pop Radio. Our director of operations is Jeff Alardi, our producer is Susie Roth. Next week our topic is the crisis at the University of Hawaii. Uh massive cuts have already been made, very large tuition increases are in the works, there's the possibility that entire programs are going to be eliminated. We'll have Vice President Carol Eastman, social science Dean Dick Dubanoski, and English professor George Simpson for what I think you will find will be a very stimulating conversation. You've been listening to Pop Radio. I'm Randy Roth. Aloha.
[1:01:39] Speaker 1: more that was Oh, Ingren, I just don't have time. I'm, I'm sorry. Um, Sam, thank you for coming. Any, any quick comment you want to make before we sign off?
[1:01:46] Speaker 2: My pleasure. Well, um I think it's one of our foundations of our liberty, and I can only repeat what John Adams said, representative government and jury trial are the heart and lungs of our system.
[1:01:59] Speaker 1: Okay, thank you much. And Jackie Earl, we really appreciate your spending your time with us this morning. Uh this has been Pop Radio. Our Director of Operations is Jeff Alardy, our producer is Suzy Roth. Next week our topic is the crisis at the University of Hawaii. Uh massive cuts have already been made, very large tuition increases are in the works. There's the possibility that entire programs are going to be eliminated. We'll have Vice President Carol Eastman, Social Science Dean Dick Dubanowski, and English Professor George Simpson for what I think you will find will be a very stimulating conversation. You've been listening to Pop Radio, I'm Randy Roth. Aloha.
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