JULY 21, 2014
THE CHINESE SAY that: “To enter a courtroom is to enter the mouth of the dragon.” Charles Dickens, who spent many years in a courtroom, said: “Suffer any wrong that can be done you rather than come here.” And Abraham Lincoln, one of our greatest lawyers: “Discourage litigation. Persuade your neighbors to compromise whenever you can.” If the point of Richard Gabriel’s book is that trials are perilous undertakings, often with very unexpected outcomes, it is an old point that has been more eloquently and profoundly elsewhere expressed. But such may not be his point.
One of the problems with this book is that it is not quite sure what it is about. Even the title is misleading, since not all the cases discussed resulted in acquittals. Gabriel is not a lawyer, and that is clear from the way he talks about cases, lawyers, judges, and the law. For example, when he presumes to tell his readers in 10 statements “how most judges and lawyers think of juries,” as far as this lawyer is concerned, he could not be further from the truth. The most absurd of the 10 statements is that “jurors will willingly admit to their own biases, no matter how embarrassing.” No trial lawyer believes that for a moment. Indeed, she knows that one of the great problems of choosing a jury is that the contrary is true.
Gabriel is a member of a relatively new group of people, largely trained as psychologists or sociologists, who offer themselves to lawyers as “trial consultants.” In one respect this book is an advertisement for those services. And the reason that we deluded and uninsightful lawyers need the services of Gabriel and his colleagues, according to Gabriel, is because they are the “bridge between the vibrant and dynamic jury decision-making process and the legal profession’s static, antique version of the jury.”
Gabriel has been “involved” in many trials, including the notorious ones he includes in his book. He was part of the team that obtained an acquittal for O. J. Simpson by, as he admits, not defending against the murder charges, but by putting the prosecution on trial. “It made us into prosecutors and eventually pushed the prosecution into trying the case we wanted them to try.” Arrogantly (and ironically), Gabriel insists that it would have made no difference to the outcome if Simpson had been tried in Santa Monica. However, he notes, at the end of the chapter on the Simpson case, that a Santa Monica jury found Simpson guilty a year and a half later. And, then, in a later chapter on Phil Spector, who was convicted of murder, Gabriel tells us that “celebrities get away with murder from O. J. to Robert Blake.”
The other cases discussed in detail, from Gabriel’s insider perspective, are the Heidi Fleiss prosecution for pandering and drug use, the prosecution of Jim Tucker for bank fraud, the Enron case, the Phil Spector murder trial, and the Casey Anthony prosecution for the murder of her daughter.
For much of the book, the theme seems to be the impact of the media, and particularly social media, on the judicial process. Clearly, the chances of seating an untainted jury in a high-profile case are diminishing. But the fact is that the cases chosen by Gabriel are sui generis rather than representative. In most cases, even murder cases, juries come to court with no knowledge of the defendant or the facts. Contrary to Mr. Gabriel’s assertions, most lawyers and judges find that juries take their task very seriously, try to follow the instructions, and, while undoubtedly human, work hard to decide cases on the evidence, not their prejudices. Gabriel’s melodramatic insistence that the O. J. case opened a “Pandora’s box” that can “never be closed” with respect to “American justice” sounds more like a comment for the social media he purports to decry, more like a sound bite, than a serious exploration of a coherent theme.
Mr. Gabriel has filled his descriptions of these cases with facts and gossip about the background of the players — lawyers, parties, judges. He also adds, almost by free association, little didactic digressions on such subjects as the history of prostitution in Japan and elsewhere, the Byzantine details of the Clintons’ friends’ financial schemes in Arkansas, and Kenneth Starr’s education. These sections add to the impression that the book partakes of the social media and new journalism it purports to criticize.
There is no question, as Mr. Gabriel observes, that:
In today’s journalism model, the media are the masses with Twitter feeds, Facebook, and blog posts feeding mainstream news sources. In turn, mainstream media must feed the public’s 24/7 news hunger with a steady diet of hard news stories, rumors, speculation, and opinions redigested across media platforms.
The question — of how this information revolution is influencing the delivery of justice in our courts and how lawyers and judges should confront it and accommodate it — is a serious one. It will require a subtle balancing of disparate interests and Constitutional considerations. The answers will not be found in the media frenzies generated by the (fortunately) rare celebrity cases like O. J. Simpson or Heidi Fleiss that spark the public’s prurient interest.
Gabriel has not, with this book, advanced the conversation.