Bias Is Always The 13th Juror

by Earl Ofari Hutchinson

(PNS) -- A decade after O.J. Simpson, defense attorneys for Kobe Bryant will bank heavily that a stout defense, disputed evidence, an alleged tainted victim, and Bryant's celebrity allure will sway jurors to acquit him as jurors acquitted Simpson.

In that celebrated case of a superstar athlete turned capital defendant, then-Los Angeles County District Attorney Gil Garcetti was disturbed when "jurors" in several mock trials found O.J. Simpson "not guilty."

Bryant is wealthy enough, as was Simpson, to hire a top legal team that filed torrents of pre-trial motions to level the legal playing field. But he still must face the juror that defense attorneys, prosecutors, and jury consultants fear most, and that's the thirteenth juror -- bias.

The Sixth Amendment requires that a defendant receive a fair trial by an impartial jury. But justice is often neither fair nor impartial when race, sex, and celebrity adulation lurk in the shadow of the jury box.

Most jurisdictions still pick jurors from voter registration and tax assessment lists. Those jurors are much more likely to reflect conservative, middle-class values and beliefs.

Prosecutors want them on juries for another reason. They're more likely to believe them. The prosecutor's opinion carries the official stamp of the government. Researchers have found that middle-class whites are more likely to believe the testimony of police and prosecution witnesses than defense witnesses and defendants.

There are few minorities on Bryant's jury. The county's population is 75 percent white. That's higher than the national figure. The residents are better educated, have a higher median income, and are younger than the national average.

That could be good or bad for Bryant. His wealth and celebrity aside, he's an African-American, and the charge is rape. That and child molestation are the two most highly charged crimes. They inflame public fury, passion, and prejudices. That's even more the case when the accused rapist is black.

Bryant's attorneys are well aware of that danger. In January, they publicly cited the hideous history of mob violence and hysteria when black men are accused of raping white women.

In the Simpson case, jury consultants devised questionnaires that measured prospective jurors' attitudes on race, interracial marriage, and sexual relations. The 500 potential jurors in Bryant's trial received an 82-item questionnaire. Some of the questions were designed to probe their attitudes toward interracial sex. The trick is to uncover submerged passions and prejudices. The even trickier problem is to select jurors who can put them aside and be objective.

There's also the problem of community pressure. In a small, tight knit community such as Eagle, many residents know the alleged victim. In fact, reporters noted that many of the prospective jurors appeared to know each other.

If jurors vote to acquit her alleged assailant, in this case a celebrated outsider, they could face the wrath of friends, neighbors, and relatives for having let some one off who they believe raped one of their own.

Bryant's prosecutors face an equally daunting task. The majority of Americans go to athletic events, watch entertainment shows, read the gossip rags and sports magazines. To many of them, sports stars are demigods that they identify with. Yet, in the jury box, they are expected to become instant amnesiacs and forget that these are their idols, and judge them as they would anyone else who winds up on a court docket.

This is fantasy thinking. Many see their heroes as victims of a vengeful and jealous legal system bent not on prosecuting them for alleged crimes, but on persecuting them because of who they are. The deluge of media and popular outlets from CNN to fan sites such as kobewatch.org and kobetimes.com claim to provide up-to-date information regarding Bryant's case. But they contribute to Bryant's mystique, and worse spread legal and factual distortions and misinformation about the case.

Beyond race, sexual, and celebrity bias, defense attorneys and prosecutors must grapple with juror dishonesty. Many potential jurors withhold information or lie. Researchers interviewing a selection of jurors following several criminal trials found that a significant percentage denied that they or a family member had been a crime victim, or failed to reveal that they knew a law enforcement officer.

Some prospective jurors deliberately tailor their answers to what they think defense attorneys or prosecutors want to hear. They are casting a knowing eye toward getting some media attention in high profile, celebrity trials that can help them attain a momentary bit of celebrity fame. They, in effect, are auditioning to get on the juries.

A noted Bryant legal case watcher flatly said that jurors don't convict celebrities unless the evidence is unimpeachable. He's right. But hopefully when the jurors in Eagle County decide Bryant's fate, the thirteenth juror won't be part of their decision.