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CAN SIMPSON GET A FAIR TRIAL?

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Of all the questions about how the media have treated O.J. Simpson this past week, the most intriguing is an old timer: Can anyone at the center of a five-ring media circus, like this once-idolized sports demigod, be treated as an ordinary citizen in the courts?

Media coverage has gone during the week from unbridled to outrageous in both volume and feverishness. Even more than usual in celebrity cases, the media have overstepped their guidelines for prudence, such as those saying they should not speculate on the evidence. (By week's end we were learning that they had also flagrantly and luridly misrepresented some of the evidence.) The case has become such a national obsession that many of the courts will not likely be able to use the usual means by which they deal with inflammatory pretrial publicity, such as moving a case to another jurisdiction.- YET MOST PEOPLE responding to all those instant surveys about the Simpson story have faith that justice in the courts will be blind. And so do I.

We're not on the same wavelength with many of the media pundits, those who have taken it as self-evident that Simpson will get some sort of special treatment. Their spirited comments on whether his celebrity status will aid or impair his defense have saturated the air and print. A sampler:

- On cable TV's "Crossfire" the guests, including former New York Mayor Ed Koch and host Michael Kinsley, got into a shouting match over the issue, with Koch saying that juries will do the right thing.

- Frank Deford, the sportswriter, said on National Public Radio that Simpson has faced "many juries" (in the fanciful sense, I take it) and won in all of them, implying that he will win again. (However, the judge who gave Simpson what the press has characterized as a slap on the wrist when Simpson pleaded no contest to a misdemeanor charge of spousal battery in 1989 was moved to make a highly unusual defense of himself on CNN. He argued that the sentence (which included no jail time) was what the Los Angeles city attorney had recommended. The judge vehemently denied he handed out a lenient sentence because he had been star struck.

The press for its part has indulged in an orgy of self-condemnation for not reporting that incident more fully, though there was no reason at the time that it should have been front-page stuff.

- Roger Rosenblatt, the essayist, opined that heroes and even notorious celebrities create such an intimacy with the public that people set aside normal moral judgments, as in lining the freeway shouting, "go! go!" at the Bronco carrying Simpson.

- Carl Rowan, the columnist, suggests it will be hard to impanel an unbiased jury because the only potential jurors who don't know all the details are "prisoners who have been locked in solitary confinement for a fortnight."

- As for the lawyers, the prosecutors say they are confident the evidence will overcome Simpson's celebrity status even in a trial that promises to be "one of the most sensational in the nation's history." On the other hand, a former L.A. city attorney says it will be hard to find a jury that won't be looking for a way to help Simpson.

Most of these opinions come right off the top of the head. Some take it as a given that saturation pretrial publicity necessarily sways a jury or makes it hard to impanel a jury.

- BUT LISTEN TO Professor Stephen Gillers, who teaches law at New York University. Gillers told the New York Times that "as long as juries are chosen carefully and carefully instructed, justice will be done. And I have no indication that this isn't being done."

Way back in 1807, presiding over the treason trial of Aaron Burr, Chief Justice John Marshall held that impartial juries may form impressions about a case before trial as long as those ideas could be changed when they heard the evidence in court. In the 1960s a notorious criminal known in the press as "Murph the Surf" appealed his conviction on robbery and assault charges on grounds that press coverage of his previous convictions biased the jury. Justice Thurgood Marshall wrote that jurors need not be "totally ignorant of the facts and issues." He distinguished between mere familiarity with a defendant and predispositions against him.

The U.S. Supreme Court has overturned convictions where it found a "wave of passion" or pattern of deep and bitter prejudice in the community. Such was the case of Samuel Sheppard, the Cleveland osteopath who was the inspiration for "The Fugitive" dramatizations on TV and in the movies. The high court granted a new trial, which Sheppard won shortly before his death, after having spent 12 years in prison. The court cited highly inflammable media stories and opinion, including one front-page editorial headlined, "Why Isn't Sam Sheppard in Jail?" The court, however, also faulted the judge for failing to maintain proper decorum in the courtroom, and it emphasized the need for media reporting to protect the public's oversight of the courts.

In an important New York City Bar Association report on free press-fair trial in the 1960s, Judge Harold R. Medina, while also upholding the need for court reporting, wrote that "the deleterious effects . . . of unrestrained reporting and commentary . . . are too widespread and too well documented to be gainsaid."

A study by the University of Chicago Law School, also in the turbulent 1960s, when the debate over free press-fair trial was at its zenith, concluded that there is no simple and direct cause-effect relationship between pretrial press comment and jury verdicts.

- DESPITE UNREMITTING nationwide pretrial publicity, many defendants go free. William Kennedy Smith, as a recent example, was found not guilty of rape in Palm Beach, Fla., though he was under the hot glare of publicity from the moment he was charged.

After its own two-year study the American Newspaper Publishers Association concluded that there was no real conflict between the First Amendment and the Sixth, which guarantees a speedy public trial by an impartial jury. ANPA said complaints that pretrial news is intrinsically prejudicial are based on speculation alone.

ANPA concluded that the issue is doomed to remain a matter of "passionate speculation." One reason is the difficulty of actually studying how juries arrive at decisions. All courts prohibit such studies during the jury's deliberations.

There are many reasons the press should be on better behavior in these cases and why the Simpson matter is going to be a classic issue in media ethics for years to come (as well as in bar ethics and perhaps medical ethics): Among these are punishing by publicity, ruining reputations, interfering with investigations, or simply the debasement of the serious role of public information. But though the media have gone bananas, it can't be said with any certainty that a jury won't balance the rights of Simpson and the public when the case gets to the controlled environment of the courtroom.

The power of an event

It's already clear that a major by-product of the Simpson case will be a greater awareness of a persistent social problem, domestic violence. Events are always more important than words in galvanizing public opinion. As opinion does not remain aroused unless sustained by events, expect the passions to subside somewhat. They did, for example, on gun control after an outpouring of anti-gun sentiment in the slaying of Bobby Kennedy. But senitment typically does not swing all the way back. So some good, a heightened awareness of spouse beating and perhaps some effective legislation, can come out of the dismal Simpson affair.