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October 8, 1996


O. J. Judge sets example:
Jurors needn't be clueless

Trial reveals wider problem. Should lawyers be
able to bar those best able to
judge a case?

When former Los Angeles police detective Mark Fuhrman pleaded no contest last week to committing perjury during O.J. Simpson's criminal trial, prospective jurors for Simpson's civil trial admitted hearing about it. They even gave their opinions.

One prospective juror noted how she was "amazed to hear they gave him probation when he lied on the witness stand." Another said he "didn't believe" Fuhrman, but thought Simpson guilty.

Despite those views, Judge Hiroshi Fujisaki admitted both to the jury pool of 100. And that has some legal pundits predicting a hung jury and others saying the trial can't be fair.

But why not? The use of knowledgeable jurors is no insult to justice. In fact, it's a welcome return to the jury system's roots.

Twelfth-century British juries were expected to go out and investigate disputes. A jury was impartial if it included a cross section of the community without relatives or close associates of the accused or plaintiff.

Today, lawyers seek to create homogenous juries. And they regularly keep educated persons who read widely and are likely to hold opinions from serving.

College-educated jurors have been systematically excluded in such famous criminal cases as the 1974 Watergate case that acquitted former attorney general John Mitchell and Commerce secretary Maurice Stans of impeding a securities investigation, and the 1990 trial that acquitted Imelda Marcos of stealing hundreds of millions of dollars from the Philippine people.

And the practice is common in complex business cases, especially among lawyers who want an emotional response to evidence of personal damages.

The result: A Michigan jury study found only 1% of jurors were college educated.

In so manipulating juries, lawyers may be acting in their clients' interest, but not in the interest of justice. Juries are meant as a check on both government prosecutors and powerful private interests. That purpose is more easily thwarted when large segments of the community are excluded from participation.

Congress recognized this in 1968 when it ordered states to draw jury pools from a cross section of the community. Many until then had let community leaders draw up lists, creating pools of mostly white men.

The Supreme Court recognized the problem in 1986 when it put limits on peremptory challenges that systematically excluded blacks and women from trying cases.

The same limits need to be placed on attempts to exclude people because they're well informed or well educated and have opinions about cases.

What's needed: Only a real prejudice against a defendant or plaintiff, or conflict of interest, should exclude a juror from serving. And peremptory challenges should be eliminated, as England has done, to prevent jury stacking. Just seat the first 12 randomly selected qualified jurors.

In the Simpson case, Fujisaki has dismissed those who said they couldn't put their opinions aside and admitted those who said they could.

In doing so, he recognizes that an open mind need not be an empty one. If informed citizens are vital to democracy, they cannot be the enemy of justice.

Carefully review jurors

N. Lee Cooper's View:

Our democratic system demands that
jurors be fair, impartial and

By N. Lee Cooper

Justice should not be sacrificed at the altar of efficiency.

The proposal to streamline the process of jury selection for the sake of saving time and public resources is attractive. One can highlight a particular case to argue that the process of selecting a jury takes too long, costs too much, and yields a result that is not satisfactory to the public.

However, a trial is to ensure justice for the parties to the case, not to please the public.

The cases cited to make this argument do not reflect the careful, efficient review of potential jurors that goes on each day in courtrooms across the country.

Worst of all, this "solution" ignores the fundamental beauty of our justice system -- 12 impartial citizens, gathered in privacy, bringing their collective judgment to a matter before them.

Consider this analogy. We know our elections are too long, too contentious, too expensive and often produce results that cause public frustration.

Why not select Congress by a random drawing from people who file petitions?

Because this extreme step would result in a legislature that was not representative.

Likewise, a jury should reflect the breadth of a community, not random selection. The current process provides the opportunity for those summoned to jury duty who have a conflict or a direct interest in a case to be excused.

Some citizens called to serve might not recognize they have such a conflict. Careful questioning by a judge and lawyers of a jury pool ferrets out such potential bias or conflict and allows the potential juror to be dismissed without embarrassment.

A random system of jury selection would lead to endless appeals and retrials resulting from undiscovered conflicts of interest.

In the final analysis, selection of jurors can be done by computer. But justice is about fairness to people; it is not a video game.

It may be cumbersome on rare occasion, but deliberative review of potential jurors assures the public and the parties in a case that the matter will be heard by a fair, impartial and unbiased jury.

This guarantee is essential for our democratic system.

N. Lee Cooper, a Birmingham, Ala., defense attorney, is president of the American Bar Association