The nation is, once again, caught up in the OJ Simpson trial because of two riveting series that revisit the case. The FX mini-series, American Crime Story, and the ESPN documentary, OJ: Made in America, provide their audiences with a level of detail and sociological interpretation that can only be achieved 20 years after the trial. In particular, they are both able to situate the trial in the context of race and policing in ways that resonate with current events and show its long history. While they go to great lengths to explain why the jury may have acquitted Simpson, they both fail to mention the legitimate power of juries to serve as a check on how the law is being enforced and the historically important roles juries play in democratic life. They avoided mentioning the controversial power of jury nullification.
Jury nullification refers to the power juries have to find a defendant not guilty despite adequate evidence, thereby “nullifying” the power of the law in that particular instance. It can also be understood as the power of the jury to grant mercy in cases where they think a guilty verdict is too harsh. A “not guilty” verdict by the jury may be indicative of a different understanding of what justice should look like for the defendant or as a lack of confidence in the integrity of the prosecution. A jury that nullifies does not need to know the term or utter the phrase. The power is exercised as a “not guilty” verdict and this is all those of us outside the jury room will hear. While the independence of the jury is at the core of the common law system (and finds precedent in a famous case involving William Penn), courts have ruled that neither attorneys nor activists on the courtroom steps can alert the jury of their power. It occupies the unique position of being an open secret in the US legal system. The FIJA (Fully Informed Jury Association) publicizes the concept on their website (where the reluctant jury duty attendee can find it) and scholars have written about the history of jury nullification at key moments of social and legal change including juries who nullified in response to the Fugitive Slave Law and Prohibition-era legislation.
The OJ Simpson trial was not about an unjust law, but a history of the unjust application of the law. In interviews included in OJ: Made in America, one juror says that for majority of the jury, the verdict was a response to the Rodney King beating by the LAPD officers and the impunity of police brutality. Another says that the prosecution presented a weak case, especially in placing Mark Furhman on the stand. Both causes for a “not guilty” verdict can co-exist in a single jury, and this does not make an interpretation of nullification invalid. In fact, such diverse opinions about the reasons for the verdict are consistent with the history of nullification, as is the seemingly spontaneous way in which the Simpson jury reached the decision (without knowledge of the concept). There are certainly dangers of its overuse. Nullification is not an opportunity for malice or prejudice within the legal system, but it should also not be ignored as a power that encourages jurors to debate the meaning of justice, including decisions about the conditions of the law itself.
The acquittal of OJ Simpson may remain to many a miscarriage of justice, but it served as a highly visible expression of cracks in the criminal justice system that have only widened over time. Juries should continue to play this role, and the public should continue to debate their verdicts; a far more desirable option than the drastic decline of jury trials in recent years due to plea bargaining and the avoidance of jury duty by so many. For the jury process to live up to its democratic ideals, it must reflect the diversity of the citizenry. Too often the process excludes those whose voices would be valuable in deliberations. The recent Supreme Court decision Foster v Chatman affirmed the unconstitutionality of the exclusion of jury members based on their race, but much more needs to be done.
Both series feature a vivid moment that occurred as the jury was leaving the courtroom after the verdict: one of the jurors raised a closed fist toward OJ Simpson as a gesture of solidarity. The moment stood in stark relief to the way Simpson had earlier distanced himself from activism by fellow black athletes, particularly in 1967 when Muhammad Ali refused the draft and in 1968 when Tommie Smith and John Carlos made the same gesture at the Olympic Games in Mexico City. Yet, the closed fist could also be interpreted in another way — as a sign of the power of juries to address the realities of law enforcement. The Black Panther Party made improved jury representation a key issue in its Ten-Point Platform, seeing the value in changing institutional structures of justice from within. The current recommendations from Campaign Zero and those involved with the Black Lives Matter movement have emphasized the demilitarization of law enforcement and an end to broken windows policing. Added to the list should be an end to racial discrimination in jury selection and greater education about what jury service is, namely, an opportunity for citizens to directly engage with the meaning of justice in our society.
