Jurors: the lowlights in some high-profile trials

Some experts worry that today's jurors may be having trouble distinguishing between what's socially fair and what's legally just.

Cases of alleged corporate wrongdoing seem to be providing some less-than-great moments in American jurisprudence.

After six months of testimony and 11 days of deliberations, the grand-larceny trial of two former Tyco executives ended Friday when a state supreme court judge in New York declared a mistrial. Such an end had loomed for days as reports surfaced about jury-room infighting focused on one juror in particular - No. 4 - and ballooned into a media and Internet-chat-room frenzy in which the juror's name was revealed.

Two days earlier, a defense lawyer in the federal trial that convicted Martha Stewart March 5 on counts including obstruction of justice charged that a juror in that case - one who called the verdict "a victory for the little guys" - failed to disclose during jury selection that he had been charged with assault in 1997. Experts doubt the lawyer's call for a retrial will be heeded.

Close observers of the jury system caution against viewing these high-profile events as signs of some broad devolution, and say most jurors - including, for all they know, the holdout in the Tyco case - display an honest devotion to their task.

Still, several also point to social trends that help explain emerging shifts in juror behavior. And some predict more turmoil if the court system fails to adapt.

"We have a lot of highly publicized cases, and with highly publicized cases people tend to form opinions," says Jeff Frederick, director of jury research at Charlottesville National Legal Research Group in Virginia. "There is concern about the possibility of jurors coming in with a little bit more of a fixed notion of what they want to do."

In part, the phenomenon may reflect the times, say some experts. Corporate scandals like Enron can make malfeasance cases appear to be opportunities to dispense social justice.

"You get in there [as a juror], and you want to help the little guy," says Gillian Drake, founder and director of On Trial Associates, a legal consultancy in Chevy Chase, Md. Lawyers leverage such feelings. In the Stewart case, for example, "the prosecution knew it was the jury issue, not the legal issue, so they played up the jury issue, which was class consciousness. They took advantage of that. There are jury issues and there are legal issues ... [and] depending on which side you're on, sometimes you're trying to blend them and sometimes you're trying to keep them separate," she adds.

The majority of jurors are not likely to let message delivery become their primary motivation, says David Ball, president of JuryWatch in Raleigh-Durham, N.C.

He cites the Tyco case, in which the use of company funds by former executives to pay for private excesses was alleged. "Let's say that I get outraged by that," says Mr. Ball. "I might then tend to see the rest of the evidence in its worst light for that person, but I'm not about to send him away to jail for the rest of his life because of a [$15,000] umbrella stand."

But Ms. Drake, who has been conducting a series of postverdict jury surveys in her state, says she's been surprised by a trend she's noted."These juries, if they don't get it, [don't] really, totally understand, they basically decide on what's [socially] fair, as opposed to what's [legally] just," she says. "And that's really different."

Juries are different, too.

More states now draw prospective jurors from among residents with driver's licenses, not from voter rolls or lists of property owners, so the mix has broadened in terms of education level and civic-mindedness, says Drake.

And while most experts maintain that qualified, well-intentioned jurors can be found in all socioeconomic strata, some also worry that a small but growing segment of jurors may be tuning out attorneys and judges as their respect for the court erodes.

"Most of our mainstay institutions have less credibility than they did years ago," says Susan Macpherson, vice president of the National Jury Project's Midwest office in Minneapolis, citing surveys. "And that is partly a result of people being fed more information on a regular basis about things that go wrong."

Even on matters of courtroom procedure, jurors are being educated by the media and movies, says Patricia McEvoy, consultant and cofounder of Zagnoli McEvoy and Foley in Chicago.

"People are learning about what's going on behind the scenes. And rather than focus on this trial, this evidence, this law, this situation, which is what they're supposed to do ... they may have these other agendas," she says. "It's the job of both sides during jury selection to figure this out."

That job has never been easy.

"Historically, people have maybe thought that jurors were a blank slate if they were instructed to be so," says Ms. Macpherson. "But everything we learned over 30 years of research is that they're not."

Jurors arrive with biases and worldviews that allow them to quickly "start creating a story" about what went on in a case, she says.

Courts now need to increase their efforts to ensure that such biases don't run too deep, experts say, and that a juror's self-selected history doesn't cloak factors he or she might not even know could be disqualifiers.

Supplemental written juror surveys can help, says Ms. McEvoy, as part of the voir dire process - the questioning of would-be jurors by counsel.

They've been used for about 15 years, she says. With questions customized to apply to the case at hand the supplemental surveys are seen by many judges, both criminal and civil, as a tool that at times can be quite useful.

Ironically, says Macpherson, voir dire and the subsequent "challenges" allowed by counsel face new limitations in many jurisdictions hoping to save time and avoid backed-up courts.

She views this as a mistake, and she's troubled by what she calls a "new and disturbing" alternative: castigating jurors after trials, and pressuring them to justify their decisions - something they don't have to do.

"You're better off probing to see how hard and fast people's opinions are on the front end, rather than doing the whole trial and then coming around and saying we did not get enough information," she says, or coping with the fallout of juror revelations.

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