The appearance of justice: juries, judges and the media transcript.

• Position: Edited version of Conference proceedings "The Appearance of Justice: Juries, Judges, and the Media" held 11/11/94, Woodrow Wilson School Annenberg Washington Program - Panel Discussion

MS. BIENEN: Leslie Abramson is a graduate of U.C.L.A. Law School. Her specific experience has been in the area of criminal defense. While a public defender, she was assigned to central felony trials, and handled over 600 felony cases and over forty felony jury trials, which included charges of murder, rape, murder, robbery, kidnaping, arson, burglary, and other crimes. She has extensive jury and trial experience, mainly in felony cases, and was chief counsel in fourteen death penalty cases.

MS. ABRAMSON: It's impossible for someone who has practiced criminal defense for twenty-five years come to a conference like this and not have 10,000 things to say, actually I think the people who are here, that you will hear from today, who are much more interesting than myself are Hazel Thorton and Betty Burke. We have been talking here about jurors. We have a lot of notions about jurors, but we are not jurors, they are. And they are two extremely intelligent, and thoughtful, and diligent jurors who have lived through an experience that I wouldn't wish on my worst enemy. And they did it as citizens who were drafted to do their duty for which they have been called bimbos, sluts, morons, Oprah fans, idiots, emotionally brain damaged; and this is how we treat jurors in our system today while we are asking them to show up every morning, rain or shine, and get paid five bucks, and wait around forever.

I have listened to the comments of judges and litigants who are so concerned that the jury system is in crisis, that it's broken and can't be fixed. I think the first thing that I want to tell you is about the state of the criminal law in the once great State of California right now, is the only aspect of the system in which I have any confidence is the jury system. It may be broke, it may be busted, but it's the only thing that even approximates a chance for justice in California. California has passed two three-strikes laws. California, as of two years ago, has prohibited attorney voir dire. California has increased its death penalty and the crimes that are covered by it every single year for the last ten years. California has more people incarcerated than most countries, and California was once, with all due respect, the greatest state in the nation. And having practiced law for twenty-five years in what once was a great state, and is now, as we used to say, a shame-and those of you who need a translation, someone else at the table will tell you what that means-basically, a crying shame. I must say that when I walk into a courtroom, if there isn't going to be a jury there, I am frightened. If there is going to be a jury there, I have some hope that justice can be done.

In its good days, California was one of the first states to understand the need for racial diversity on juries. So we incorporated the DNW list, the Department of Motor Vehicles list, very early into our jury selection pool. We also have some very fine cases on the issue of representational cross section of ethnically diverse people, and it has been, at least had been-I sense everything is changing - it had been common practice if you drew a jury panel for a trial and it was obvious just looking at them that various ethnic groups were under represented-and Los Angeles has so many various ethnic groups that there are 180 separate bilingual language courses in our public school system. We provide bilingual education in 180 languages. We are talking about diversity central.

In any event, recognizing that problem, it was common practice if a jury pool showed up that was obviously skewed against ethnic minorities, for the judge to similarly call down the jury Commissioner-we have a totally computerized jury pool system, by the way - and tell the jury Commissioner I don't like the way this panel looks. It's obviously under-represented. How can we reconfigure the computer to pull a panel that would better reflect the breakdown in this particular community.? We are also a county of 10,000 communities, and routinely good judges would do that. In fact, even bad judges would do that. They are not bad on that issue, and haven't been, at least in Los Angeles County.

So I haven't felt when I've represented people of color that dley were being judged by juries that did not reflect their peers. And beyond that, I would insist on racially diverse juries when I'm representing white people, as well, because the fact of the matter happens to be that, in my opinion, our racially diverse cultures have a lot of common sense. I like those folks, and I want them on the jury pool. They think properly; they are not elitist; they are not superior; and I think that they are quite capable to do what juries are supposed to do most of the time, which is to decide who is lying and who isn't. So I don't feel that the crisis that I think the criminal justice system is facing is coming necessarily from the jury system.

Unfortunately, my career took a very peculiar turn a few years ago when I agreed to represent Eric Menendez, and it turned out to be a much higher publicity case than I thought. But it wasn't so much the amount of the publicity, but the quality of it that utterly shocked me, and horrified me, and frightened me. And that, I think, poses the greatest threat to justice in America today. It is not just that the media was interested and the media was reporting what was going on in court, it was that we now have a media that has absolutely no ethics, no boundaries, no limits, no taste, no decency, and utterly no intellectual honesty about what they are doing.

When Current Affair can come into court and wrap themselves in the First Amendment and talk about the public's right to know, and pooh-pooh the Sixth Amendment issues, you know we are in serious trouble. These are media outlets that do absolutely no fact checking of any kind. Anyone who claims to have information about a criminal case can appear in their programs. Nothing that they say is challenged, and nothing they say is checked.

I will tell you one tiny story. Three weeks ago on a talk show called Jennie Jones, which I am happy to say I have never seen, a man showed up who claims that he, every three weeks, goes into the Los Angeles County jail to service Lyle Menendez's hair piece. Now, if you've got half a brain, you'd say to yourself what kind of service does a hair piece need every three weeks? What? Is it growing? You know, are the rats in the county jail chewing on it? But they don't ask questions, and he goes on. Not only is he Lyle's best buddy who services his hair piece, according to this person, but Lyle also is housed-you should all know from this authority-right next to O.J., who is his best buddy. They have all their meals together, and discuss their past history, their mutual friendship from the past; and Eric is two cells down.

The Los Angeles County Sheriffs Department is a very large organization and very well staffed and well finded, and it has, on average, 12,000 people a day incarcerrated. It also has an entire office called Press Liaison in which seven people work. One call to that office would have told the producer of Jennie Jones that every word that I just repeated that individual told them was an utter and complete lie.

Nobody services Lyle's hairpiece. This man is completely unknown to everyone. O.J. is housed all by himself on a module from which all other prisoners are excluded, and is monitored by video cameras. He doesn't even see deputies. Lyle Menendez is nowhere near him, and Eric Menendez is on the entirely opposite side of the jail. Now, they could have learned all about that, but that way they couldn't have had a show.

This is the way that the media is now covering criminal cases. Perhaps it wouldn't be so bad if they only did this after cases were over, but they do this while cases are being in the pretrial stage. They do it during trial. They do it when there have been hung juries and there's going to be a retrial. In fact, when there is a hung jury and there's going to be a retrial, they sometimes see that as an additional license to be even more outrageous and fallacious than before.

There have only been a handful of high publicity cases historically, but the creeping territory of Court TV is growing every day. And the public's fascination with their hate/love affair with crime is only increasing. The televising of trials, of many, many trials every year, is guaranteed. I think Court TV won't be the only outlet to do the gavel-to-gavel coverage of ordinary cases; therefore, I think these are issues that are going to impact on more than just the occasional O.J. or the occasional Menendez case. We have to deal with them.

What we have to start thinking about is the comparative values of the First and the Sixth Amendments. When I watched Lance Ito, who is a very bright man and one of those judges, the kind that all of us from law school on admire the most, those judges who really love being judges, who have tremendous reverence for law, who are excited by it. The fact that he has been helping first year Harvard law students - I think there were fifty-nine students in that class - by asking them all to brief the press access issue in the O.J. case, that demonstrates not his quirkiness, but his real love for legal education and his desire to have the public understand more what the legal system at its very best is like.

When you have a judge, though, who is clearly floundering in the face of the runaway media, you know there is a serious problem. This isn't some bumbling fool. This isn't a particularly emotional person. But unless you have been on the other side of those 6,000 cameras, you don't understand how helpless and out of control you feel. When you have an interest in a case and you are exposed to the publicity and you realize the level of falsity, it is a very frightening experience, and he is scared. He is scared that he cannot do what he has been sworn to do, which...