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Jury-Rigged

Kudos to Walter K. Olson ("Courting Stupidity," January) for taking on trial lawyers in general and the O.J. Simpson criminal trial jury in particular. I only hope his lonely courage doesn't hurt sales of his book.

His piece is very much in the reason tradition. During the Simpson trial, your main essayist on the subject was proud to have Geraldo Rivera do his thinking for him, taking the unpopular view that Simpson was guilty, six months before he could have heard a word of the defense case.

Olson makes much of supposed switching of portraits, black faces for white, before the jury's visit to Simpson's Rockingham home. This tale, which apparently comes from a post-trial book by a seasoned exploitation hack and a disgruntled Simpson attorney, is repeated on a prominent anti-O.J. Web site in its "gossip" section. After reading the transcript detailing the strict rules laid down by the judge regarding this visit (which was made over defense objections), I find it difficult to believe that even clever fiends like the "Dream Team" would take a wild chance like this, or that the prosecution wouldn't be screaming for sanctions if they had.

Olson also carries on about members of the defense team showing up in court in "garments of African kente cloth," described as an "unsubtle" attempt to sway jurors. Olson gave me the impression that an indifferent Judge Ito allowed them to swagger into court togged out like Eddie Murphy in Coming to America. I think this would have attracted press attention, but I can't find any. Would Olson be good enough to specify exactly what "garments" he is referring to?

To sum up, the "stupid" Simpson jury was unable to appreciate a "mountain of evidence" from the state but clever enough to get their racial marching orders from furtive glances at framed pictures and brightly colored bits of fabric. How did these symbols manage to resonate with the quarter of the panel that was not black, by the way?

But this is a small part of Olson's article, and I don't wish to downplay his larger point, that large corporations are having to pony up and aren't enjoying the experience at all. His solution seems to be to give more power to largely unelected and unaccountable judges, and his "reforms" suggest to me that he hasn't been in a jury box for quite some time. I have, as it is one of the hazards of being self-employed, and I have yet to encounter a "passive" judge, nor at any time did I feel in danger of "wielding government power" from any direction.

My experience was one of being herded into a stuffy courtroom to listen to pronouncements from a remote figure towering over the rest of us. I can only hope that Arizona's example regarding jury note taking is followed here in the Garden State. I can't wait to sit in a cramped box with ii strangers, notepad balanced precariously on my knee, as I strain to hear the witnesses over the dodgy sound systems that are standard issue here. This would at a minimum encourage jury bonding, as we argue over whose notes are more accurate when the inevitable conflicts arise. That's why we engage professionals to keep a transcript, Blackstone.

Gwyn Thomas

North Plainfield, Nf

Even though Walter Olson covered much about the practice of voir dire, his calls for reform of the jury selection system, "including the abolition or curtailment of peremptory challenges and narrowing for-cause challenges," are a far cry from ending this corrupting practice.

Another idea that he bandied about was to allow the jurors to take notes and question the judge, but I doubt stupid people taking notes and asking stupid questions will solve the problem. It certainly does not address the problem of judges telling the jury how to deliberate and vote.

Olson also argues that judges are not exerting their power to rein in lawyers who exploit the system and make a mockery of proper court proceedings. He states that judges exercising more power in this regard "would be all to the good if it happened." I would argue that if it were in the judges' interests to rein in lawyers, they already would have.

When members of the legal establishment have decided to divide the stolen power of the jury among themselves, it is difficult to imagine that they would return that power willingly. This story is not just about "run away juries"; it is a testament to the lengths that the legal and governmental system will go to strip power from the last guarantor of the people's rights, the jury trial.

Kevin Tull

Kansas City, MO

Walter K. Olson replies: On the defense's redecoration of the walls of the Simpson residence, see Jeff Rosen's article in the December 9,1996, New Republic; on Cochran and colleagues' wearing kente cloth into court, see Christopher Caldwell's Commentary piece in the March 1997 issue. Gwyn Thomas offers no reason to doubt the accuracy of either account but instead professes to doubt that a target audience's ethnic or nationalist loyalties could be much played on by the sight of symbolically potent garments (mere "bits of fabric") or of artworks portraying little girls being brutalized by the other guy's race. If so, then the art of the propaganda poster will need to be rethought.

Most of Thomas' other swipes may well pass without comment. I will, however, express amazement at the notion that the only reason jurors would ever wish to take notes is to substitute for the functions of the written trial transcript they will have a chance to see later.

Steroids and Meatheads

Dayn Perry's "Pumped-Up Hysteria" (January) was a piece of sanity amid drug hysteria in barbell circles. I'm a former lifter who has taken steroids. I never saw a single case of steroid rage. In fact, I never even heard of one until the media wrote stories on it.

There are a number of arguments against steroid use, but they don't go far. Some say that it isn't fair to have an athlete assume a risk that is not intrinsic to doing the sport. Well, in the pole vault, today's fiberglass poles can break in midair, unlike the old stiff poles. You can land on your head. Is that intrinsic to the sport? Is Astroturf intrinsic to football? Sports are always changing and are defined by the current practice at the highest levels.

When I was competing, I would have preferred to have the snatch and clean and jerk and not the press as competitive lifts, and to have had a weight class around 230. But in those days the class went from 198 to the huge guys. I had to force-feed and go up to 252 to have a shot. I wasn't coerced. That was just the way it was. When I retired because of a back injury, they introduced a 220-pound class, and later a 242 class, and now they are back to 231 pounds. They dropped the press in the mid-'70s too. Oh well. My lumps.

Finally, I don't think the Olympic Committee can say much about health concerns until they ban smoking. Many foreign lifters smoke. There was some hilarious hide and seek at the Atlanta games in 1996. The Turkish lifters wanted to smoke in between lifts, but the American aides were under instructions that no one could smoke indoors. It is quite something to go into the men's room and find the whole Turkish team in there puffing away.

Doug Stalker

Newark, DE

It is refreshing to finally read an article by someone who understands the lack of a steroid problem. I am a nationally ranked power lifter who took steroids and lived in the steroid subculture from 1979 through 1985.1 know what a steroid body looks like, and they aren't in major league baseball.

I'm bothered by nitwit sportswriters who never touched a weight reporting about steroids. I am convinced that when they hear that a ballplayer is taking a pro-hormone they report it as steroid use. Anyone who ever took steroids knows that no one got big taking prohormones. They are a total waste of money. Creatine and even basic protein powders work much better.

The other point reporters fail to discuss is that pro baseball players are part of God's gifted world of special athletes who will generally benefit more from weightlifting than the average person. A strong athlete could easily, over the course of, say, six years, lift weights and eat high-density protein supplements and gain an average of five pounds a year. Yet some dorky writer comes along and says, "Barry Bonds is 30 pounds heavier than he was eight years ago so he must be taking steroids."

Russell Clark

Highlands Ranch, CO

Finally, an author has done some extensive homework instead of shooting from the hip! We athletes are infuriated by the media hype about steroids, which is myth-based or just plain nonfactual. I have written many letters to congressmen and sports writers in vain, trying to protest the damaging lies written about athletes who use anabolic enhancing drugs.

It is obvious to any real athlete that the media in general have absolutely no knowledge on the subject of physiqueenhancing drugs. Yet they create public uproar, leading equally uneducated politicians to declare war on the drugs and the athletes who use them. It was former President George Bush who signed the Anabolic Steroids Control Act of 1990, making steroids a Schedule III crime, equal to cocaine and amphetamines. Now Sen. Byron Dorgan (D-N.D.) and Rep. John Sweeney (D-N.Y.) have taken the torch and are yelling from their soapboxes.

Other methods of physical enhancement, such as liposuction and implants, are all legal yet far more dangerous. Hormones for birth control or gender change are legal. Cigarettes and alcohol kill millions. Meanwhile, the great threat to athletes from steroids is only the possibility of being caught and arrested, and the fiasco that will follow.

Mike Schlanger

Baltimore, MD

Thanks for an excellent overview on steroid hysteria. Back in 1986 and 1988, when I was counsel to the House judiciary Committee, I had the steroid issue in my file. I thought then that the whole controversy was a concoction. Steroids did not belong in the Controlled Substances Act.

The sports world accepts all kinds of technological innovations-except certain classes of chemicals. If drug use is so terrible, then establish two leagues-one in which drug use is permitted and one in which it is not. It would be interesting to see how large the market would be for the drug-free league.

Eric E. Sterling

SilverSpring, MD

Coffee Bean Counters

If anything, Jackson Kuhi underestimates the virtues of Starbucks' competition in the marketplace ("Tempest in a Coffeepot," January). According to The Wall Street Journal, far from driving out other U.S. coffee shops, Starbucks has created a demand for upscale coffee, one that independent coffeehouses often fill. They thrive alongside Starbucks (literally, in the case of a coffeehouse near my college) by offering hangouts with character.

It's also ironic that Starbucks opponents complain about spreading its "monoculture" overseas: Starbucks is a bit of Americana, so why shouldn't Italians or Austrians be able to get a taste of it for a few euros? It's cheaper than traveling to the U.S., and they can still patronize their local favorites. The alternative is a European monoculture.

Jay Weiser

Associate Professor of Law

Zicklin School of Business

Baruch College

New York, NY

Free Will vs. Psychiatry

In his review of Pharmacracy ("Head Games," January), Jacob Sullum quotes Thomas Szasz: "Attributing mental illnesses...to biological alterations occurring at a 'subcellular level' is a parody of the denial of free will, choice, and responsibility."

Extensive research into the brain's neuroadaptation to drugs shows that at least part of the explanation of addiction lies at the subcellular level. Dependence, tolerance, and craving for nicotine, alcohol, and other drugs are a function of changes, brought about by substance use, in the number and responsiveness of neurotransmitter binding sites in various brain systems regulating behavior. More generally, any scientifically sound and complete explanation of addictive behavior or other disorders, whether at the subcellular, neural, or personal levels, must perforce involve the denial of free will, since free will (at least in the libertarian sense of an uncaused chooser) is precisely that which can't be explained by causal analysis.

In order to defend free will, Szasz and others wedded to the libertarian notion of freedom must hold that science can't fully explain human behavior: that we are in some deep sense causally privileged over the rest of nature. But there is no evidence for such causal exceptionalism, only the traditional supposition that for people to be held responsible, they must be ultimately self-caused in some respect. This supposition too is increasingly being called into question, as it becomes clear that moral and criminal responsibility can be reconceived as necessary guides to behavior for rational but nevertheless fully determined agents. In other words, holding people responsible helps to create good choices.

A complete scientific explanation of addiction and other disorders, therefore, need not be forsworn in favor of choice and responsibility, since these turn out to be entirely compatible with causality. Admitting we are not exceptions to nature can only further the humanitarian mission of learning how and why we behave as we do, whether in sickness or in health.

Thomas W. Clark

Boston, MA

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Publication:Reason
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Date:Apr 1, 2003
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