Legal experts generally view the decision by prosecutors not to seek the death penalty against O.J. Simpson as a significant victory for the defense.
Several experts interviewed Tuesday said the decision, announced by Los Angles Country District Atty. Gil Garcetti last Friday, reduced the chances that a jury would convict the former football great.
“I think they (the prosecution) gave up a great tactical advantage,” said Gigi Gordon, a defense attorney in Santa Monica who frequently handles capital cases.
Gordon and others said that if the prosecution had sought the death penalty it would have been able to get a so-called “death-qualified” jury. Such panels, they noted, are composed of members who said under oath during the selection process that they could apply the law, even if it involved voting for the death penalty in the sentencing phase of the trial that follows a conviction.
Several experts argued that such juries are far more likely to convict a defendant.
“People who favor the death penalty tend to have authoritarian personalities and tend toward being racist,” said Gregory Russell, a lawyer and political science professor at the University of California at Chico who has written a book about the relationship between “death-qualified” juries and the rate of conviction.
“All good defense attorneys believe” such juries are conviction-prone, Gordon said, “but we have never proved that to the satisfaction of the courts.”
The U.S. Supreme Court ruled in 1986 that excluding opponents of the death penalty from juries in capital cases was not a violation of the Constitution even if there was adequate evidence that “death-qualified” juries were more likely to convict.
To include those who could not vote for conviction if capital punishment were involved would “tip the scales” against a fair trial, the court said in a 5-3 decision.
Garcetti said he would press for a sentence of life without parole if Simpson is convicted. He said he would not discuss the reason for his decision until after the trial is over.
Pretrial motions are scheduled to begin next Monday on charges the 47-year-old Simpson murdered ex-wife Nicole Brown Simpson and Ronald Goldman on June 12.
A few experts disagreed with the view that the defense would benefit from the no-death-penalty decision and said Garcetti’s decision was a shrewd one.
“It makes a conviction more likely,” said Patrick Cotter, former federal prosecutor and now a professor at Chicago-Kent College of Law. “The reason is that it is much easier for one human being to convict another human being and send him to jail than it is for one human being to convict another human being and send them to their death.
“This whole concept of a hanging jury is just a myth as far as I am concerned,” Cotter said.
Carol Chase, a law professor at Pepperdine University, suggested two possible reasons for Garcetti’s decision.
“I think this is an attempt to get back at those who have been crying racism in this case,” she said.
Or prosecutors simply may have decided that, even though they wouldn’t get as receptive a jury, their best chance for a conviction lay in excluding capital punishment, Chase said.
“Maybe they figured a jury is more likely to vote to convict if they don’t feel like they are killing O.J,” she said.
