The Jury: Disorder in the American Courts.

At the climax of the movie Twelve Angry Men, after two hours of watching a crusading Henry Fonda chip away at an obstinant Jack Warden and 10 others to save an innocent man from death row, it's almost impossible not to cheer. What a wonder democracy is, you think, when the instincts of one ordinary man can force reason to prevail over emotion and prejuice. And for a long time, the movie represented a real, deeply felt national sense that juries--and, by extension, democracy--worked. Late in the action, one juror, a European refugee, muses:

This is a remarkable thing about democracy. That we are--what is the word? ... ah, notified! That we are notified by mail to come down to this place--and decide on the guilt or innocence of a man; of a man we have not known before. We have nothing to gain or lose by our verdict. This is one of the reasons why we are strong.

Increasingly, however, the front pages--and Court TV--are telling a very different story: More and more jury verdicts are offending common sense by contradicting publicly known facts of the case. We all watched Los Angeles police officer Stacy Koon and four others beat Rodney King nearly to death; yet a Simi Valley jury let the cops walk. Then we all watched hooligans beat truck driver Reginald Denny nearly to death with a brick in South Central L.A.; yet another Los Angeles jury let them off the most serious charges. And daytime TV has never offered better fare than the saga of whether Lyle and Erik Menendez's murder of their millionaire parents was in self-defense; yet the only people in the country who seem to think the boys were defending themselves were sitting in the jury box.

Of course, there are eternal problems with juries. There's always the possibility that one lawyer will be shrewder (and more expensive) than another; that judges won't explain all the legal issues and evidence clearly; and that the affluent and well-educated will opt out of the system.

But in the last 25 years or so, these naturalenough flaws have become worse, leading to verdicts that fly in the face of reason. What, exactly, is going on in the courtrooms and jury boxes around the country? Stephen J. Adler, legal affairs editor of The Wall Street Journal, asks this question, and the answers he gives in The Jury are an enormous contribution to understanding what's wrong with the system as well as how to fix it. In a tour of recent legal history--or at least that part of it where ordinary people intersect with the courts--Adler discovers gullible jurors; savvy lawyers who play on prejudices with impresario skill; judges who leave panels in the dark about essential details; and, most important, professional jury consultants who, for a price, can tell a lawyer why an Episcopalian is more likely than a Methodist to convict a Baptist.

If you're hunting for the main villain in the jury system, the consultant stands out from the crowd. While trial lawyers in the forties and fifties would get a routine credit report on potential jurors to see what they could find out, jury consulting, nineties-style, is big, big business. (Used to be that everyone was entitled to a lawyer; these days, if you have the cash, a consultant is about as routine.) Using psychology, sociology, and marketing methodologies, a consultant can tell a lawyer which characteristics in a juror reveal subtle prejudices for or against a client's case, and the industry generates well over $200 million a year in revenues. They're earning their keep: One successful Southern California consultant promises a 96 percent chance of a favorable verdict if he's allowed to convene focus groups, advise on strategy, and vet the panel. You can pay jury consultants, for example, to write questionnaires that will reveal consumer tastes, habits, even the cars they drive. That becomes important when, in a drunk driving case, for example, a consultant can tell the defendent's lawyer that the owner of a minivan is more likely to vote to convict than a Porsche driver is. Conclusion: Keep the minivan owner off the jury.

Hiring a consultant is obviously more subtle than slipping a juror a wad of $100 bills, but it is almost as effective and sends the same message: Justice is for sale. If you can afford the consultant's price tag (which can run up to $1 million), you get a leg up on finding a jury that will acquit or prosecute anyone, regardless of evidence. In civil and criminal cases this is an important factor in shifting the balance of power to the rich, undermining the fundamental point of a democratically selected jury: that real people from all walks of life can be trusted to reach the right decision most of the time.

But when consultants start mucking around, that principle crumbles. John DeLorean and William Kennedy Smith had consultants, and acquittals; in the King beating trial, the white cops had one paid for by the taxpayers. In the two Menendez trials, defense lawyers used a consultant to compose a 34-page questionnaire on work history, views on sexual abuse, and the death penalty to test-market their defense during jury selection. Since the boys had already confessed to blowing their parents' heads off one night while the folks were watching TV, getting off the hook depended on convincing the jury that the Menendez father had sexually abused the boys while their mother knew but did nothing to stop it. So the Menendez jury consultants, trying to load the jury with people who might focus more on the sexual charges than the shotgun blasts, asked, "Do you think boys and men would be reluctant to report or even discuss their experiences as victims of sexual abuse?" And another: "Do you think the law of self-defense should be applied equally whether the person killed is a family member or a stranger?"

Not surprisingly, huge corporations pioneered the jury consulting technique. In a 1977 antitrust suit against IBM, defense attorneys turned to USC marketing professor Donald Vinson for help. With IBM's deep pockets, Vinson hired 12 people (similar in socioeconomic background to the 12 jurors) and paid them to come to court each day to listen to both sides. At the close of each day, Vinson would debrief the shadow jurors about which points were hitting home and which were off the mark. A lot of time and effort, to be sure, but IBM was committed to win at all costs.

And win they did. After the favorable verdict, Vinson, impressed by his own success, left academe and opened a consulting firm that in 10 years grew into a $25 million company employing over 100 psychologists, sociologists, and marketing experts. His promotional materials make him sound like an Amway salesman--except he's hustling justice, not vaccum cleaners. Here, for example, is Vinson's pitch on how attorneys should use charts: "Obviously, an exhibit is not perceived on the basis of the message content but rather by a combination of visual stimuli in the graphic display itself. These include color, size, contrast, contour, luminance, depth, movement, pattern, and form. All of these can be manipulated to make a visual display more effective."

The jury consultant's actual power is made possible by a lawyer's right to excuse a limited number of potential jurors without explanation--what is called a peremptory strike. Depending on the case, a lawyer has three to 15 such freebies. So the first solution to fixing what's wrong with juries is defanging the consultant by abolishing the peremptory strike. (Britain has already done this.) To be sure, a good lawyer who can pick a sympathetic jury will be always with us; the point is that bad verdicts come when there's an imbalance of legal talent or where rich defendants can maximize their chances (in criminal cases, going up against a less-well-funded government prosecution) by hiring consultants and good lawyers. So although abolishing peremptories isn't a silver bullet, it's nonetheless a powerful bullet to equalize talent and force trials to be conducted on the merits.

If the purpose of the peremptory, in the words of the Supreme Court, is to "assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise," it's clearly having just the opposite effect. In fact, if a case is weak on evidence, as was Imelda Marcos and Adnan Khashoggi's in the summer of 1990, a lawyer can use peremptory strikes to choose jurors who will decide on the basis of just about anything but the evidence.

The infamous Marcos was on trial for stealing hundreds of millions of dollars from the Filipino people and spiriting it to the U.S. with the help of Khashoggi, the Saudi arms trader. The defense team of James Linn and Gerry Spence handled their peremptories the way Isaac Stern wields a violin bow. Consider Zachary Berman, a 49-year-old with a graduate degree in urban planning who worked for a child-protection agency. Berman, a potential juror, had read about the case in The New York Times and knew Khashoggi was reportedly one of the world's richest men. Nonetheless, he had no preconceived notions about the two defendants' guilt and promised the judge he could be impartial. He was intelligent, attentive, unbiased.

He didn't stand a chance. First, he had read the press accounts of the case, which to the defense was a sure-fire indicator of bias. Furthermore, his education showed he had an analytical mind, which was bad news for lawyers short on facts but long on oratory and emotion. (The defense's only hope was to repackage Marcos as a long-suffering woman who knew nothing at all about her late husband's affairs--this despite the fact that the First Lady of the Phillipines used to boast about her power of state and jet-setted around the globe on the backs of one of the poorest populations in the world.)

And Irish-Americans were out because they are too biased toward policement and prosecutors. Asian Americans were also out, the defense reasoned, because they tend to respect authority and would therefore be predisposed to the government's case. Scientists, engineers, and mathematicians were to be avoided because their analytical minds might pay too much attention to evidence.

So who passed muster? Blacks were ideal, because, the attorneys felt, they are generally more sympathetic to criminal defendants than whites. Men were preferable to women because they have more experience with hell-raising and are therefore more forgiving of it. Fat people were preferable to thin ones, because they have less self-control and would be less insistent on law-abiding discipline. Old people were better than young, because they better understand human frailties.

The defense found the perfect juror in Rochelle Gore, a 29-year-old computer operator. Her qualification? Total ignorance. Gore indicated on a juror questionnaire that she had never heard of either of the defendants even after the well-publicized revolution that drove Marcos (and her 3,000 pairs of shoes) from Manila in 1986 and Khashoggi's role in the Iran-contra scandal--a claim so unbelievable (reminiscient of the search for 12 people who had never heard of Oliver North) that the presiding judge wanted to make sure.

Judge: You said that you never heard of someone by the name of Ferdinand Marcos. Now that you have been to court and you have heard me introduce some of the people in this case, I just want to ask you again: Are you sure?

Gore: Yes, I have never heard of him.

Judge: Never?

Gore: Never.

Judge: Have you ever heard of a man by the name of Adnan Khashoggi?

Gore: Never.

Judge: Have you ever heard of a lady by the name of Imelda Marcos?

Gore: Never.

Judge: Do you think you saw either of them on television ever?

Gore: I have never seen them on television before.

Linn and Spence could barely contain themselves.

How successful were their selections? Eleven days after the jury acquitted both Marcos and Khashoggi of all charges, Marcos threw a party atop her ritzy New York apartment building, the Dag Hammarskjold Plaza. More than 200 guests were treated to roast pig, wine, dancing, and a belly dancer. Marcos even belted out "Feelings," her signature song. And the guests of honor, sitting at a special table on a dais at the head of the room, were none other than 10 of the 12 jurors who had set Marcos free. Of the woman the Filipinos call the "Iron Butterfly," one juror said, "I can't get over what a simply lovely person Mrs. Marcos is."

Although the loss of peremptory strikes won't completely level the playing field, it would hobble jury consultants, which is the first step toward restoring sanity to the jury system. But jury consultants will retain some power even if peremptories are abolished. How? Because judges now have--and should retain--the power to excuse prejudiced jurors "for cause." The danger here, however, is that lawyers, using information gleaned from consultants, might convince judges that "cause" includes not just real cases of bias but also frivolous factors such as, in drunk driving cases, keeping minivan owners off the panel. And knowing something about a case should not be the sole cause for excusing a juror. Ninety five million Americans watched the O.J. Simpson drama in June and so could presumably be disqualified if Simpson's lawyers--like Marcos', Khashoggi's, and North's--successfully argue that knowing anything about the case is ground for excuse. The key thing is for the trial judge to make sure jurors aren't prejudiced--and being an informed person doesn't equal prejudice.

Of course, there are justifiable cases for "cause" excuses. For example, say a black defendant is on trial. Questioning a potential juror, the defendant's lawyer discovers the juror was once a member of the KKK. Clearly, it's reasonable for the lawyer to move, and for the judge to grant, that the man not be seated on the jury.

The point is for judges to be alert to how the "cause" challenges are made, to grant them only in the justifiable cases, and not to let themselves be manipulated by consultants. (Lawyers will argue that if only judges interview potential jurors--as happens in some federal trials--then lawyers will have no way to root out concealed prejudices. Fair enough. The answer is not to keep the current system, which too often is abused, but to ensure that lawyers can interview all potential jurors in all trials and let the judges decide who stays and who goes.) This would help prevent Marcos-like verdicts and inject some common sense into the process.

An equally important problem is the way college-educated and wealthy people shirk jury duty. In the 1974 Watergate-related John Mitchell-Maurice Stans trial, slightly less than half of the 196 potential jurors called had some college education. After exemptions were made for personal hardship, prejudice, and the attorneys' peremptory strikes, only one seated juror had any higher education.

And then there are the broad automatic exemptions made on account of profession. In New York, for example, lawyers, physicians, clergymen, dentists, pharmacists, optometrists, psychologists, podiatrists, nurses, Christian Scientists, embalmers, firemen, and sole business proprietors are all let off the hook. The result is that many of the best possible jurors are being left off panels.

This is not to say that the more education a person has the better a juror he will be. But allowing whole swaths of society to escape jury duty, regardless of which segments they are, undermines a basic principle of the jury system: A wide selection of people will bring a breadth of experience to a given case. Getting rid of automatic exemptions is essential. Of course, a primary job for the system has to be getting responsible jurors, and the way to do that is not, as some argue, through property tax records, which would only give us people of a certain economic affluence, but through voter registration rolls. By registering to vote, people indicate a minimal civic interest, and we don't want people who don't even bother to vote sitting on juries, which is, in many cases, a tough and demanding job.

No matter who ends up in the jury box, it's critical that judges make sure jurors understand what's going on. This is intuitive--about as obvious as the fact that Perry mason is going to ferret out the truth by the end of each show--but consider a cigarette case from 1989. The Liggett company, maker of brands such as Eve and Chesterfield, sued rival Brown & Williamson, maker of Kool and Viceroy, for allegedly artificially lowering its prices.

Liggett's suit was based on the Robinson-Patman Act, which bars companies from charging some customers less than others if the intent is to run a rival out of business. After seven months of testimony, including several days during which Robinson-Patman was explained in detail, the jurors decamped to make their decision. As they began, one juror asked, "What's the Robinson-Patman Act?" No one in the room could answer. So the jurors turned to the judge's written instructions, which are supposed to clarify matters. They didn't. "The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of supply and demand between the product itself and substitutes for it. The average variable cost test is a double inference test because if you find that Brown & Williamson priced below its reasonably anticipated average variable cost, you may infer that Brown & Williamson had predatory intent...."

Understandably in the dark, the jurors--none of whom had advanced beyond high school--based their verdict on which side's attorneys seemed less condescending.

When a judge's instructions read like VCR programming directions, the judge is usually writing for a different audience than the one in the jury box. Appellate courts can--and do--overturn verdicts if the trial judge's instructions don't follow the precise wording of the law, and judges hate being overturned. Hence a dependence on confusing legalisms.

The solution, of course, is clear use of English. But in the judicial culture, which reveres precedent, it takes unusually courageous judges to break the mold. There are a few. In one recent sexual assault trial in Phoenix, Judge B. Michael Dann gave the jury a set of crisply written instructions before the trial began. It included a description of the law, how it applied, and specifically what evidence had to be delivered to warrant a guilty verdict. And just as the trial wound down, Dann distributed another concise memo that addressed issues that had come up during testimony.

There are other ways, too, to make sure jurors know enough to reach a good verdict. In a 1990 case against Johnson & Johnson in which a tampon was blamed for a woman's death from toxic shock syndrome, Judge Warren D. Wolfson allowed jurors to ask questions after each witness' testimony, a practice forbidden in most courtrooms. As long as the jury asks those questions through the judge--that is, by writing them down and letting the judge decide whether they're valid--this is an eminently sensible reform. When Wolfson tried it, he allowed 27 of 40 proposed queries to be asked. "They were good, sensible questions," the judge said later.

Adler's analysis and his proposed solutions deserve a wide audience. Long ago, de Tocqueville watched American juries in action. "Obliging men to turn their attention to other affairs than their own," he wrote in Democracy in America, "rubs practical selfishness, which is the rust of society....I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use that they have made of the jury." Here's hoping we pay enough attention to forcing the legal system to change that soon we'll be able to click on Court TV and have the same reaction.