We, the Jury, Find the . . .

By Otto Friedrich

COVER STORY

That irksome, boring, vital, rewarding, democratic experience

It was a great big mystery that had to be solved," said Ruth Yudkoff, 57, a white-haired woman who works as an assistant principal of an elementary school in Gaithersburg, Md. "It would have been perfect for the movies, only it was real, and we had to solve it."

The great big mystery was: Who seized the Grand Marnier bottle, smashed it against the wall, and then used the jagged remnant to tear out Louise Pickering's throat? The police had charged Charles Day Terry, 17, who worked as a dishwasher at Pickering's restaurant and who had twice been confined to mental institutions. Terry claimed an unusual alibi: he had been buying marijuana in Annapolis on the night of the murder. He said he had been mugged in the process, and that was why there was blood on his shirt.

From a pool of 150 potential jurors, the lawyers took nine hours to pick Yudkoff plus another assistant principal, an adult-education director, a department-store manager, a government worker, a lawyer, a freelance writer, a ticket agent, two secretaries, a student and an electrician. After hearing 75 witnesses over the course of two weeks, the jurors filed out of court at 5:30 p.m. one day and took their seats around an old wooden table. For a long moment they just looked at one another. Then everybody started talking at once.

After an hour of arguing, the jurors took their first vote by a show of hands: four to acquit, two to convict, six undecided. The store manager suggested that they all write out their reasons on a blackboard. One by one, they stood up and explained their votes. "I kept hearing 'Beyond a reasonable doubt, beyond a reasonable doubt,' " said Suzanne Sheldon, the writer, who had originally voted for conviction. "And I kept seeing that kid Charles looking up at me from the defendant's table with his big blue eyes. It tore me apart." The jurors sent out for sandwiches, and took a written ballot at 8:30 p.m. No more undecideds. Eight votes to acquit, four to convict. One of the four, Pat Sweeney, the other assistant principal, said she had put a lot of weight on the youth's confinements in mental institutions. Pat Walshe, the lawyer, persuaded her that this was irrelevant, since they had never been told why Terry had been confined. Sweeney erased her reason from the blackboard, the first changed vote, an important turning point. A third ballot at 10 p.m. showed eleven to acquit, one to convict.

The holdout was the jury foreman, William Beebe, 25, the student. He thought the circumstantial evidence was convincing-the bloody shirt, for example. He did not believe the story about the mugging. Several other jurors kept arguing that there was reasonable doubt. Considering the victim's wound, was there really that much blood on Terry's shirt? At around midnight, Beebe gave in.

Terry was sobbing uncontrollably as the jurors filed back into the courtroom. When the foreman said, "Not guilty," there was a storm of applause. Sweeney ran to the women's room and burst into tears. "It was very stressful," she said later, "but I wouldn't trade that experience." Added Yudkoff, "It was all a little awesome, really."

There are many ways to tell right from wrong, the guilty from the innocent. In Burma one traditional method was to make each party light candles of equal size; whoever had the candle that lasted longest was the winner. In Borneo the opponents poured lime juice on two shellfish; the decision depended on which fish squirmed first. Though some of the roots of the jury system can be traced back more than a thousand years to the Carolingian kings of Continental Europe, such alternatives as trial by combat and trial by ordeal endured for centuries. Today the idea of trial by jury is enshrined in several guarantees of the U.S. Constitution. The Sixth Amendment, for one, gives criminal defendants "the right to a speedy and public trial by an impartial jury." Trial by jury is part of every American's legal birthright, and thus, like income taxes or the Wassermann test, part of his duties.

But it is also a fundamental aspect of the citizen's share in government. "The jury, which is the most energetic means of making the people rule, is also the most effective means of teaching it to rule," said Alexis de Tocqueville. Thomas Jefferson described the jury system as "the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution."

Every year in the U.S. some 3 million citizens are asked to drop everything in the rest of their lives and present themselves in court as potential jurors. The experience that awaits them can be something of an ordeal, wasteful and exasperating--and sometimes, most irritating of all, deadly dull. Reforming judges--not the least being Chief Justice Warren Burger--have challenged many aspects of this centuries-old system, and numerous courts are pioneering new computerized techniques that will speed up the whole process. Others have started to use smaller juries, streamlined rules, less-than-unanimous verdicts. The grand-jury system, which has many similar shortcomings, is being increasingly bypassed in some areas. Despite its inconveniences and irritations, which prompt many people to try to avoid it, jury service nevertheless can be, and often is, the most rewarding civic duty that average citizens get a chance to perform, far more so than voting or paying taxes. It is our communal enactment of the democratic idea.

Jury trials are actually not as common as is generally believed. Of all the criminal jury trials in the world, some 80% occur in the U.S. Yet more than 90% of all cases in the U.S. never come before a jury. Most litigants plea bargain, settle out of court or opt for trial before only a judge. Still, some 300,000 cases a year do come before a jury.

The conditions that can make jury duty so frustrating vary from place to place. Citizens are on call for as long as a year in rural areas of Wisconsin and most of Montana; daily pay can range from $45 a day in Kewaunee County, Wis., to $5 in civil cases in San Francisco, where nothing at all is paid to those who wait. Tensions inside the jury room can be painful, particularly if the jurors are sequestered at night. But the most common complaints are boredom and a sense of futility. Many are called and few chosen. Even those who are chosen, and summoned to court at a brisk hour of the morning, endure considerable (and often unexplained) delays before the court machinery finally turns. Judges often do not explain the law's mysteries. And on at least two occasions in recent years, panels of jurors were locked up and forgotten for the rest of the day.

Nonetheless, a 1976 study of 3,000 jurors in 18 court systems found that 90% had a favorable reaction to jury duty. "Jury duty is like motherhood," says Tom Munsterman, executive director of the Center for Jury Studies, a private, nonprofit research organization in McLean, Va. "People are for it. If we don't get an 80% favorable response in any particular court, that court is in deep trouble." Adds one New York City executive: "It is a major responsibility to reach a verdict, and every jury I have served on has taken the responsibility very seriously. Twelve strangers meet by chance in this strange process, learn to work together, reason together and finally reach a conclusion that may be crucial in the lives of others. When you achieve this, you feel you have really accomplished something. It brings out the best in most people."

That is only true, however, if the jury reaches a verdict. But one-quarter to one-half of all the cases that go before a jury are suddenly settled out of court. Many of them involve liability claims, in which the impaneling of a jury may be simply another stage in the insurance companies' bargaining process. Another 5% end in the anger and frustration of a hung jury. And of the 3 million citizens who are called to jury duty every year, for an average of ten days each, fully 40% never get onto a jury at all.

First comes the great raking in of potential jurors. The system for calling them varies wildly. In Manhattan, for example, the computers whir through thousands of names--basically a combination of voters, taxpayers and drivers--and then send out about 3,000 summonses each week. And last week, as it must to all computer systems, anarchy came to the Manhattan courts: the computers sent their summonses to 3,000 citizens who had already been excused; only 300 eligible jurors showed up, and twelve criminal courtrooms had to be temporarily closed. In Prince Georges County, Md., by contrast, a judge who suddenly found himself short of jurors simply sent sheriffs deputies out to round up some citizens. Among the 20 or so corralled were a woman heading home with a bag of groceries and an angry trucker with a load of wet cement. In South Carolina's Hampton County, everything depends on an antique system in which a child under ten or a blind person sits in court and pulls the names of potential jurors from a metal box. Says Marjorie Avant, a courthouse employee: "No one ever suggested doing it any other way."

The rules for escaping jury duty are equally diverse. Courts generally exempt doctors and lawyers and those who can demonstrate hardship. But tobacco farmers are exempted during harvest time in Virginia; South Carolina still excuses "apothecaries"; Indiana excuses ferryboat operators. For those who must serve, the first thing to learn is to wait. "It's waiting for the judge, waiting for the lawyers, waiting to be called. It's not amusing or fun; it's just a duty," says Gwen Pritchard, a Washington lobbyist, standing in the hallway of the District of Columbia courthouse. "It's 300 people doing nothing," says another would-be juror, Libby Gallagher, as she watches her neighbors playing cards, knitting, staring into space. "It's a bore."

One of the main reasons for all the waiting in many courts is the long and sometimes pointless interrogations known as voir dire. Scene: a maple-paneled room in Manhattan Supreme Court. At issue: a small drug sale. "Are you living with anybody?" the defense lawyer asks a middle-aged widow. The woman looks uncomfortable. "We're not gossip columnists," the judge intervenes. "We only want to ask questions that determine if you are a fair and impartial juror. Many people nowadays live together." The woman says she lives alone. The questioning continues.

"The worst thing is not the irrelevant questions," says one survivor of voir dire, "but the fact that you're locked into a dingy room with 30 other would-be jurors and two or more lawyers, who then proceed to pound each of you with the same questions. This can take a half-hour or more for each juror, and then you have to hear it all over and over again. After a day or so, you'll grab at anything."

If all the questioning fails to produce any sign of prejudice or other unfitness, finally, an attorney can still ban a juror by exercising one of his peremptory challenges (the number for each side generally ranges from four to ten, though the total for the defense goes higher in criminal cases in some states). The lawyer need not give any reason, or even have any. "It's very upsetting to get bounced," says John Shore, a scientist at the Naval Research Laboratory in Washington. "To be denied because you're too smart, or because you're the wrong race or socioeconomic group--that's nonsense."

"It's common for the jury-selection process to take longer than the trial itself," notes New York Supreme Court Justice Arnold Fraiman. That complaint is hard to document, but a new study by three professors at the City University of New York does show that voir dire in an average felony trial in New York City takes eight hours over the course of 2 1/2 days. The professors estimate that New York City judges trying felony cases spend at least one-third of their time on jury selection, and that one basic reform could provide the equivalent in man-hours of 20 extra judges, amounting in effect to a minimum of $9 million in annual savings.

That basic reform is to let the judges question prospective jurors, as they now do in the federal courts and in 22 states. (In England, a court officer first weeds out ineligible candidates, such as lawyers, and the judge may ask further questions.) Though a federal judge may consider questions from the opposing lawyers, he is apt simply to ask the prospective jurors about their general ability to reach a fair verdict. The average time spent on jury selection in federal court is two hours, and, according to the C.U.N.Y. study, there is no evidence that longer voir dire significantly changes the rate of conviction.

The most annoying problem to prospective jurors, the waiting around, has actually been solved already, but the solution is spreading through the system with the speed of a glacier. Says Houston's District Court Judge Shearn Smith, chairman of the Harris County jury committee: "When I became a judge, I went down to the jury assembly room, and I found an unhappy group of citizens. They were not unhappy about being called, but about sitting and not doing anything." Instead of having a number of jurors yawning in the courthouse all week, Smith's committee reasoned, why not keep prospective jurors on call to serve for just one day or one trial? Adopted in 1972, the one-day, one-trial system worked so well that other court systems began copying it.

At Wayne County's circuit court in Detroit, which adopted the system in 1975, it works this way: every two weeks the courthouse computers spew forth a random sample of more than 1,000 names and addresses from a jury pool of 30,000 citizens. Occupational exemptions have been abolished, though brief deferrals are usually granted by telephone. The rate of excuses has been cut from 33% to .09%. Thereafter, an average of 100 prospective jurors are summoned each day, but only about 75 are asked to come to court. The others telephone to hear a prerecorded message that tells them if they are needed. Those who are summoned appear at 8:30 a.m. on their first day for a half-hour orientation on their duties. They will serve only one day, unless they actually get on a jury, and then they serve on only one case (the average is four days). After that they are free for twelve months.

In various forms, the one-day, one-trial system has slowly spread to about 50 of the nation's 3,000 court systems, including Philadelphia, Pittsburgh, Dallas, Cambridge, Mass., and parts of Chicago. The system generally provides one immediate benefit: the saving of previously wasted jurors' fees. Says David Kasunic, the Wayne State business law professor who guided the Detroit area through the change: "It's a panacea without a pitfall."

If the jury is fundamental to the U.S. system of justice, then it is clearly fundamental that the selection of jurors must also be just. Though the U.S. Supreme Court ruled as long ago as 1880 that the newly emancipated blacks could not be excluded outright from jury service, nearly a century of case-by-case adjudication has been necessary to develop and enforce the court's principle that all juries must be drawn from "a fair cross section of the community." And how is such a cross section to be determined? The traditional method was that "key men" in the community--bankers and merchants, for the most part--drew up lists of responsible citizens who would serve. Not until this past winter was the last such key-man system discarded, in New Hampshire, after a conviction based on it was overturned.

In 1968 Congress passed the Jury Selection and Service Act, which required that federal courts cull jurors from the list of registered voters, but the states took their time in following suit. Although the Supreme Court has outlawed "systematic exclusion" of women and racial minorities from prospective jury lists, the court has consistently refused to set any specific quotas for these or any other groups on the juries actually selected.

But the voting lists do not provide a completely accurate cross section of a community. Overall, the registered voters represent only 67% of the adult population, and even after the reforms of the Voting Rights Act of 1965, they are still disproportionately the white, the middle class and the middleaged. In North Carolina's Cumberland County, a detailed study four years ago showed that the jury list based on both voters and taxpayers was only 17% black, while the population was 24% black, but the disparate figures could be brought much closer together by adding the list of licensed drivers. A bill to do basically that was approved by the North Carolina legislature in July.

Many of the same problems apply to the selection of grand juries, which hear a prosecutor's presentation of a case and then decide whether a suspect should be indicted. Grand juries are supposed to protect citizens against intimidating prosecutions, but many experts now regard them as a needless anachronism and an opportunity for prosecutorial excess. Most states no longer require their use, but the federal courts and 22 states still insist upon them for serious crimes.

Even the most exquisitely balanced prospective jury list is only a battleground for the opposing lawyers to start fighting for the jurors they want. "Picking a jury is the most difficult thing a lawyer does," says John Ackerman, dean of the National College for Criminal Defense in Houston. "And few lawyers know how to do it. You get no training or any help at all on that issue in law school." The teachings of courthouse legend are all stereotypes. Prosecutors, says University of Illinois Sociologist Rita Simon, are alleged to favor 1) men, 2) Republicans, 3) the prosperous, 4) bankers, engineers and accountants, and 5) Germans. Defense attorneys supposedly favor women, Democrats, poorer people, social scientists and minorities.

Most lawyers claim that their judgments are somewhat more sophisticated. Washington Attorney Jacob Stein, for example, is partial toward librarians because "they listen to reason." New York Legal Aid Society Attorney Dan Nobel is philosophical: "I look for someone who's basically not bitter about life, someone who knows that this is not the best of all worlds." Courtroom Star Louis Nizer suggests subtler methods. Says he: "If I see a juror who draws his mouth together very tightly, I'm inclined to think he's a severe fellow, too severe."

Implicit in all such observations is the idea that the lawyer is seeking only someone fair and open-minded, while his antagonist yearns to find bigots and idiots. "It's really foolishness for lawyers to tell jurors that they want them to be impartial," says New York Attorney Herald Price Fahringer. "We all do it, and it's a lie. I don't want an impartial jury. I want a jury that is compatible to my client's cause."

Chicago Prosecutor William Kunkle favors self-employed business people, homeowners and those with strong religious views. He would challenge, he says, "anyone who has had one psychology course or one sociology course in college." That is not, he insists, the often charged but never admitted bias against intelligent jurors. Kunkle's reasoning: "The jury brings in common sense, a knowledge of everyday life. Say the case involves a tavern fight. Is someone with a Ph.D. in English literature really going to be helpful in deciding the issues?"

Some would answer that the whole fuss over jury selection is exaggerated. Says Glenn Zell, an Atlanta attorney who has specialized in defending obscenity cases: "If you take the first twelve, it'll be just as good."

Once the courts have solved all problems of getting the jurors assembled in the jury box, there remain some far more fundamental questions: Is this really the best way of achieving a fair verdict? Or is it naive to think that the cause of truth and justice can best be served by twelve ordinary citizens wholly ignorant of the law and specially chosen for having no knowledge or opinions about the case before them? Mark Twain, as usual, had a sharp answer: "The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury."

Originally, though, jurors were selected for what they knew. Like democracy, the isosceles triangle and the cheesecake, trial by jury is an idea of the Greeks, though the Greek juries of up to 2,000 members sometimes turned into a mob, e.g., condemning Socrates to death on dubious charges of impiety and "corruption of the young." The Anglo-American tradition of the jury actually derives, according to many scholars, mainly from the 9th century Carolingian inquisitio, or demand for information, in which the king authorized local officials to round up citizens and compel them to testify. Hence the word juror, from the Latin word to swear. But criminal guilt was often still determined somewhat haphazardly in trial by combat or trial by ordeal. Only in the 12th century did King Henry II start sending out judges to preside over groups of local citizens who were commanded to report on any recent crimes in their neighborhood. In later years, the accusations of these original grand juries were submitted to a petit jury, which was often locked up without food or water until it reached a verdict.

No one has ever accused the jury system of being efficient. It wastes considerable time, effort and money to explain everything to the twelve citizens in the box. Indeed, a study released in June showed that the average juror understands only about half of the judge's instructions. For their services, the nation's jurors are paid $200 million a year, and their absence from work costs the nation an estimated $1 billion.

Most courtroom lawyers, however, hasten to defend the jury system. One major reason is that they are dubious about leaving all decisions to judges, particularly those chosen by big-city political machines. "The other alternative is to get a bunch of blue-ribbon professors up there, and that's baloney," says a veteran trial attorney in Chicago. Adds another Chicago lawyer: "If you end up with a professional arbitrator, he tends to cut the baby down the middle."

The divergence between different methods of reaching a verdict is actually not overwhelming. About 80% of the time, according to one authoritative study, judge and jury agree on the verdict. When they disagree in civil trials, experts say, it is usually because jurors sympathize with a plaintiffs argument against a wealthy defendant or else because a borderline disagreement could reasonably go either way. When there is disagreement in a criminal case, when reasonable doubt becomes an element in the verdict, the jury is six times more likely to acquit. Says one Washington prosecutor: "Juries have the luxury of rendering what they consider a social judgment."

In some cases, as in the prosecution of marijuana smokers, juries will simply ignore a law that they feel is unrealistic, and occasionally the law is accordingly updated. Sometimes, the jury exercises this right of "nullification" regardless of the evidence. In Philadelphia, for example, the state once granted immunity to a police chief and allowed him to retire with full benefits in exchange for his testimony against 14 subordinate officers accused of bribery; the jury rebelled and acquitted 13 of them.

To the system's defenders, the average juror's lack of expertise is not a handicap but a positive value, for the jurors are supposed to represent the community's sense of right and wrong. "Our civilisation has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men . . . G.K." Chesterton wrote. "It asks men who know no more law than I know, but who can feel the things that I felt in the jury box."

"When the facts are halfway uncertain, the jury will decide the case in terms of what they think is just --which is what they should do," says Hans Zeisel, professor emeritus of law and sociology at the University of Chicago and co-author of The American Jury (1966). Adds Robert Hanley, a senior partner in the Chicago firm of Jenner & Block: "Jurors are great at picking out the gut issue and deciding on that. They can tell whether a chairman of the board is lying or not, and that's what it comes down to."

Hanley has good reason to believe in juries. He represented the MCI Communications Corp. in its antitrust suit against AT&T. In June 1980 a jury found in favor of MCI, and the judge, as required by antitrust law, awarded the company treble damages amounting to $1.8 billion, making it the largest court judgment in U.S. history. It almost did not happen. For tactical reasons, MCI offered at one point to waive its right to a jury. AT&T declined the offer. Says AT&T Chief Trial Counsel George Saunders: "The American jury system is the worst there is, except for any other that has ever been tried or thought of."

Hanley and his trial partner, Chester Kamin, attached such importance to the kind of juror they would get that they hired a political polling firm to survey the attitudes of potential jurors toward each side's arguments. This technique, like those pioneered by liberal lawyers during the political trials of the 1970s, provided a demographic profile of the kind of jurors MCI should seek: self-made and competitive people, intelligent, first-and second-generation Americans, susceptible to arguments that mighty AT&T had been unfair to MCI.

Hanley and Kamin even recruited some of the people surveyed to form three different mock juries for them to experiment on. On three successive nights, Hanley and Kamin presented the heart of their case to one of the juries, then used a see-through mirror to observe the discussion as the jurors "deliberated." The following day they analyzed the jurors' reactions and then revised their presentation for the next mock jury.

The final result confirmed Hanley's almost mystical awe of the jury process. Says he: "I really believe the Holy Ghost descends on those people when they're in there." But Loser Saunders has not lost faith. Says he: "We had a darn good jury. They decided five of the 15 issues in our favor, and I'm absolutely convinced that if they had been properly instructed by the judge, they would have voted with us on the other ten as well."

Sometimes, of course, there is no sign of the Holy Ghost inside the jury room. Nassau County Republican Chairman Joseph Margiotta stood accused of mail fraud and extortion, and a court clerk warned prospective jurors that the trial might last four to six weeks. Richard Yurack, who had recently been laid off as a chemical salesman, had time to spare and thought the trial would be interesting, but in the course of 65 witnesses and 4,000 pages of testimony, says Yurack, the whole case "just got too complicated for some of the jurors."

The jurors--seven men and five women, among them two butchers, two secretaries, two housewives and a garbage man--could not understand the judge's 2 1/2-hour instructions and so asked to have large sections in writing. Says Yurack:

"The more we got into it, the more we were getting off the track. So then somebody said, 'We've got to start somewhere. Let's see if we can figure out the charges.' " There were six counts, each with subdivisions, but after seven days of arguments in the ill-ventilated chamber, the jurors remained hopelessly divided. Three jurors adamantly held out for conviction. Says Yurack: "The rest of us could have gone home and played tiddly winks." On the eighth day, the jury gave up, and now the ten-month-old prosecution will have to be resumed in November. Says Yurack: "I would not have wanted that jury to judge me--God forbid."

One of the strongest and most quirky elements in a jury's thinking is often racial antagonism. In Washington, D.C., where 80% of the jurors are black, one white juror recalls a trial in which a white policeman was accused of hitting a black. Says she: "When we went into the jury room, the seven blacks sat on one side of the table, and the five whites sat on the other. The blacks just smoked cigarettes and glared at us until we voted against the policeman."

In Miami, it took three weeks to impanel jurors in the trial of four blacks accused of beating three whites to death during last year's rioting, and the pressure was so great that one prospective juror suffered a respiratory seizure. The chosen jury was sequestered in a motel, forbidden to have television or telephones, constantly watched by three police officers. "We walked around like little soldiers," recalls Foreman Dale Dollar, 25, a black who works for Florida Power & Light Co. "It felt like the jury was on trial."

After seven days of testimony, the nine white and three black jurors received 30 pages of instructions, which Dollar calls "intimidating," and then the real struggle began. Says Dollar of the four days that finally led to guilty verdicts for three of the defendants: "It was so tense in there it was mind-boggling. One juror, Barbara Freeman, was pounding on the table, calling those guys animals. She was hollering, 'Murder one! Murder one!' " Says Freeman, an advertising production manager: "It's a real skin stripper. You find out a lot about yourself. I came out not liking myself. I was impatient and in general pretty intolerable."

Sometimes the juries' efforts to reach a verdict verge on farce. In Miami, for example, a jury deliberated for more than six hours on whether four defendants had paid undercover agents $220,000 for 15 Ibs. of cocaine. The jurors said they were deadlocked. U.S. District Judge Sidney Aronovitz asked them to try again. Three hours later, they returned with verdicts--three convictions and an acquittal. When the judge began polling them on whether this was the correct verdict, according to their consciences, the very first juror said, "No."

The judge sent them back again. A few minutes later, they returned with the same verdicts. Polled again, Juror No. 1 agreed, but Juror No. 5 said, "No, it's not my verdict." Again the judge sent them back; again they returned and confirmed their verdicts, but as one defense lawyer said, "We noticed Juror No. 11 kick the back of Juror No. 5's chair when it was her turn." Lawyers asked that Jurors 1 and 5 be polled separately, and they again repudiated their verdicts. Sent back a fourth time, the jurors deliberated half an hour more, then returned with the same verdicts and stood by them. But after the trial was declared over, Jurors 1 and 5 accosted two defendants and apologized for the verdicts. According to affidavits filed by these defendants, the repentant jurors said that two other jurors who wanted to go on vacation the next day had insisted on verdicts that night, that two jurors swung at each other, that four who wanted acquittals were "browbeaten into submission," and that one juror had slept through most of the argument. Last week the whole case was back in court as defense lawyers sought a new trial.

Occasionally, the jurors simply cease to function at all. In Washington this spring, ten jurors wanted to convict three teen-agers of raping a 14-year-old girl, but the other two reportedly spent their time swilling whisky from paper cups until a mistrial was declared. "They weren't passed out," said Foreman Robert Smoot, "but they were drinking and loud-talking and not agreeing with anything."

Jurors today may confront problems of a complexity quite unknown to medieval English juries, or even to Thomas Jefferson. Consider, for example, the lawsuit that the National Union Electric Corp. filed in 1970, charging unfair competition by its Japanese rivals. For more than ten years, 24 Japanese corporations and subsidiaries, represented by 20 different law firms, have been embroiled in the preliminaries--100,000 pages of pretrial depositions, 20 million documents.

NUE was joined by Zenith in demanding a jury trial of their complaints, but some of the Japanese protested that the case was too complicated. (The Japanese also took a poll and found that many potential jurors still harbored prejudices based on memories of Pearl Harbor.) "We argued that there was no way a jury could fairly and correctly decide this case," says Joel Harris of the New York law firm of Weil, Gotshal & Manges, who pleaded the issue for Matsushita. "It would deny the parties' right to due process to have the trial before a jury that could not understand the case."

Federal Judge Edward R. Becker strongly disagreed. There was no such thing, he ruled, as a case "too complicated" for a jury. The Third Circuit U.S. Court of Appeals, in turn, overruled him by a 2-to-l vote. It said that certain extraordinary cases could indeed be too complicated and instructed Becker to determine whether this was such a case. Said the appeals court: "When a jury is unable to perform its decision-making task with a reasonable understanding of the evidence and legal rules, it undermines the ability of a district court to render basic justice." Becker then granted a summary judgment on the whole case in favor of the Japanese in March. Unless this judgment is reversed on appeal, the case will never go to trial at all.

But what is a jury unable to understand? "The idea that juries can't understand Complicated cases is pure unadulterated horsefeathers," says Chicago Attorney Max Wildman, whose cases have involved all the intricacies of medical and airline liability. "It's the job of a lawyer to reduce a complicated situation to something that can be understood by the average person." Adds University of Pennsylvania Criminologist Marvin Wolfgang: "There are words in the law that are almost impossible to define, and 'too complicated' would be among them."

Granted the principle that a jury can theoretically deal with anything, a number of reforms are being tested to make them deal with it more effectively. The most fundamental break with tradition has been a move toward smaller juries and toward verdicts reached by less than unanimous votes. Since 1971, 85 of 95 federal district courts have gradually begun using juries of six to eight members to hear civil cases. Thirty-eight states have adopted similar reductions in size for some civil cases and 34 for some criminal cases. Though all federal jury verdicts must be unanimous, 29 states now permit less-than-unanimous votes in certain civil cases and five in criminal cases. These developments have speeded up the process of reaching verdicts, not only saving time and money but paying heed to the principle that justice delayed is jus tice denied.

There are thoughtful observers, however, who believe that justice requires a price to be paid, and that justice hurried may also be justice denied. Zeisel, for one, protests that "to have juries of only six people deciding cases worth millions, allegedly for reasons of parsimony, is grotesque." Using smaller juries also reduces the chance of getting a broad cross section of the community, and nonunanimous verdicts increase the risk that minority points of view will simply be overridden. Moreover, although nonunanimous verdicts reduce the problem of hung juries, Jack Peebles, an assistant district attorney in New Orleans, emphatically declares that "if a man goes to jail, it should be because there is no reasonable doubt about his guilt. There should be a unanimous verdict."

Smaller and less controversial reforms would also prove useful. Letting the jurors take notes, for instance, is forbidden in some states and frowned on in many. The prevailing theory is that the taking of notes intimidates those who do not take notes and encourages jurors to give their notes undue weight as evidence, but it seems burdensome to force everyone to rely largely on memory throughout even the most elaborate case. Though it has been determined that jurors often do not understand the judge's instructions, it has also been determined that legal instructions are often unnecessarily hard to understand. The Florida supreme court, for one, issued in June a comprehensive new set of standardized jury instructions ranging from the definition of manslaughter to the meaning of hearsay, all written in plain English.

These are steps toward greater efficiency and commendable as such, but efficiency is not really the goal or the purpose of the jury system. It is, instead, a symbol of the idea that experts are fallible and that a citizen's security is best protected by his fellow citizens. Like many of the unwieldy instruments of representative democracy, therefore, it is designed as a check on the machinery of coercion, a check that provides time for mulling over not just the question of guilt or innocence but the conflicts in what society demands of its members and of itself. --By Otto Friedrich. Reported by Evan Thomas/Washington, with other U.S. bureaus

With reporting by Evan Thomas

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