Oprah! Oprah in the Court!

By SOPHFRONIA SCOTT GREGORY

In the quiet of suburban Los Angeles, Moosa Hanoukai picked up a pipe wrench and bludgeoned his wife Manijeh to death. When the businessman did not contest the facts, prosecutors assumed they had an easy second-degree murder conviction. But Hanoukai's attorney James Blatt mounted this defense: his client was a victim of husband battering and 25 years of abuse. Furthermore, because of the stringencies of an Iranian-Jewish culture, Hanoukai felt trapped: he killed Manijeh because he was not allowed to divorce her. The jury empathized and found Hanoukai guilty only of voluntary manslaughter. Instead of 15 years to life, he may serve as brief a prison term as 4 1/2 years.

The Hanoukai verdict provoked little of of the turmoil attending the acquittals of Lorena and John Bobbitt and the hung juries of the Menendez brothers. But critics charge that all these legal proceedings illustrate the same trend: juries are increasingly willing to make allowances for mitigating circumstances once considered largely irrelevant -- abused spouses who kill, violated children who murder incestuous parents, victims of posttraumatic stress syndrome driven to violence by disturbing flashbacks.

Such tales are the daily stuff of talk shows, of course, leading some prosecutors to blame Oprah and company for making jurors more sympathetic to novel defense strategies that try to excuse the accused's behavior. "I call it the Oprahization of the jury pool," says Dan Lungren, attorney general of California. "It's the idea that people have become so set on viewing things from the Oprah view, the Geraldo view or the Phil Donahue view that they bring that into the jury box with them. And I think at base much of that tends to say, 'We don't hold people responsible for their actions because they've been the victim of some influence at some time in their life.' "

Thanks to the talk shows, Americans are increasingly familiar with the language of therapy and recovery -- with new syndromes, with the fragility of the psyche and with the painful ways the abused can become abusive. Nan Whitfield, a Los Angeles public defender, believes media coverage of abuse has raised juror interest in the motives and mind-set of the accused. "I think juries have always been interested in why something happened," she says. "Once the defendant crosses the threshold and does present that evidence ((of his victimization)), I do think the jurors' ears perk up and they become more interested." She speaks from some experience. She won the felony acquittal of Aurelia Macias, accused of cutting off her sleeping husband's testicles with a pair of scissors, by arguing that the California woman had been verbally and emotionally abused throughout her marriage and feared for her life. Macias now faces just one count of simple battery.

While authoritative studies have yet to be compiled, jury consultants are beginning to correlate TV habits with a juror's likely behavior during a trial and deliberations. Talk-show watchers, says Jo-Ellan Dimitrius, a jury consultant in Pasadena, California, are considered more likely to distrust the official version and to believe there are two sides to a story. At the same time, jurors who regularly watch such reality-based police shows as America's Most Wanted may harbor strong law-and-order beliefs. "We want to find out what drives a potential juror to watch the shows," says John Gilleland, a jury consultant with FTI Corp. in Chicago. "It's a signal to look at a person more closely."

Given the popularity of the victimization defense, attorneys have fewer qualms about taking a chance on exotic arguments that may, at the very least, bring their clients lighter sentences. The American Bar Association Journal this month cited a case in which a defense lawyer insisted that indulging in pornography was a form of intoxication -- and thus reason to mitigate the sentence an Indiana man received for rape and murder. His client suffered from sexual sadism because of pornography, rendering him unable to gauge the wrongfulness of his conduct. Another lawyer in Milwaukee coined "cultural psychosis" to explain why an inner-city teenager killed another for her leather coat. The defense attorney sought to convince jurors that the girl's traumatic childhood in a violent inner-city neighborhood created a mental disorder similar to the posttraumatic stress syndrome that afflicts some Vietnam veterans.

The courts refused to admit those two arguments, but attorney Bill Lane had better luck with a legal strategy called urban survival syndrome. His client, Daimion Osby, 18, of Fort Worth, Texas, was accosted last year by two men who in the past had threatened him over a gambling debt. Osby pulled out a .38- cal. pistol and shot the unarmed men to death. The case ended last month in a mistrial. Though 11 of the 12 jurors voted for conviction, the foreman opted for acquittal. He agreed with the argument that Osby shot Willie Brooks, 28, and Marcus Brooks, 19, in part because the environment in which all three men lived -- one of Fort Worth's most dangerous neighborhoods -- heightened Osby's fear.

"Mr. Osby was threatened by young black men who fit the profile of the most dangerous men in America," says Jared Taylor, author of Paved with Good Intentions: The Failure of Race Relations in Contemporary America and an expert witness for the defense. "His decision to use his weapon when attacked is more understandable, since his assailants fit this profile." Urban survival, said Lane, "is an extension of the law of self-defense to try to make the jury understand the point of view of our client."

But African-American critics say the urban-survival defense harks back to a time when blacks were seen as an indistinguishable whole: volatile, angry and presumed guilty. "((The Osby mistrial)) says 'these folks' can't help shooting each other," says the Rev. Ralph Waldo Emerson, a Fort Worth minister. "And it says to already nervous law-enforcement officials that they'd better be ready to draw when they stop someone in our community."

The criminal-justice system is "on the verge of a crisis of credibility," says Los Angeles District Attorney Gil Garcetti. He admits that in the Menendez brothers' cases, he and his team underestimated "the emotional pull" the abuse defense had on the jurors. Garcetti hopes to head off such tendencies among jurors by changing the system itself. At his initiative, a team of judges along with the heads of the state and county bar associations has formed a task force to study the possibility of altering rules about juries. Among ideas to be explored: broadening the pool of jurors to include a greater range of society, as well as judges stressing the importance of values and personal responsibility when they instruct jurors on how to deliberate.

Whitfield scoffs at such so-called reforms. "It is the very narrow- mindedness of some prosecutors that is always the best edge for a defense," she says. "They think they can just come into court, put on their evidence, and that will be the end of the story. They stop there. Well, thank God, juries don't." Legal scholars say juries have always been unpredictable, refusing to bend to controls the authorities hope to impress on them. "The tradition is that juries are the ultimate arbiter of law, not judges and not the state," says Anthony D'Amato, a law professor at Northwestern University. "And if they think the law is ridiculous, juries may ignore it. Instinctively, juries are getting it that they don't have to listen to the judge's instructions."

Are juries therefore influenced by the talk shows, or do talk shows merely cater to popular inquisitiveness? Talk-show host Montel Williams argues that "we reflect society -- we don't create society." Rose Mary Henri, executive producer of the Sally Jessy Raphael show, says: "I think we've helped the public awareness of domestic abuse and many of the abuse problems that exist, but I have no idea what kind of impact that has on someone who is serving on a jury."

And what does Oprah Winfrey have to say about Oprahization? The queen of talk is willing to concede some culpability. She says she and her colleagues have made society more sensitive to the idea that crimes are not committed in a vacuum. "What happened to you in the past is a part of who you are today," she says. However, she adds, "If, in the process, we have made people think that people are not responsible for their lives, then that is a fault." Ever the pioneer, she delivered that opinion last February on a segment entitled Can You Get Away with Murder?

With reporting by Jordan Bonfante/Los Angeles, Wendy Cole/Chicago, S.C. Gwynne/Houston and Ratu Kamlani/New York