"Like Picking a Wife"

"Like Picking a Wife"

As the trial of Jack Ruby began in Dallas last week, the big question was: Should anyone who had witnessed the televised slaying of Lee Oswald be automatically disqualified from serving on the jury? At the end of five days, only two jurors had been picked, 46 disqualified. All this was a far reach from the medieval days when jurors were picked not because they knew so little about the crime or the criminal, but because they were supposed to know more about the case than anyone else.

In the reign of William the Conqueror, who introduced Norman customs of jurisprudence to England, men called jurors reported on property owners to the king's tax collectors. The local Saxons never considered jury trials when it came to meting out criminal justice, but they gave a defendant the chance to find twelve men-- who would swear that his oath was reliable. It was not until the 12th century that King Henry II sponsored the first juries in civil cases. If a verdict was upset on review, the original jurors were automatically considered guilty of perjury and fined or imprisoned. About 100 years later, accused criminals were commonly brought before juries.

Not Impartial. The assumption that a juror's personal knowledge of the case would ensure justice was questionable from the start, and the notion spread that if a juror had information about the crime, he ought to serve as a witness instead. By the 18th century, the practice of disqualifying such jurors was generally accepted, and in its brand-new Constitution, the fledgling U.S. Republic guaranteed defendants the right to trial by an impartial jury of their peers.

The Constitution said nothing about a twelve-member jury or the need for a unanimous verdict; both practices were taken over from English common law.

State criminal codes and common law spell out a variety of reasons for which a prospective juror may be disqualified by the judge for prejudicial cause--actually witnessing the crime, opposing the death sentence in a capital case, or simply admitting bias against either side.

Along with this basic safeguard, the law has been steadily liberalized to grant both defense and prosecution the right to eliminate a juror if they merely suspect, but cannot prove, he harbors a prejudice. Such peremptory challenges are strictly limited, and their number varies from state to state. In federal courts they range from three for each side in civil cases to 20 in a capital case. Conscientious lawyers exercise their right to disqualify a juror with the precision of a surgeon, the intuition of an actor, the guesswork of a tea-leaf reader. Professor Harry Kalven Jr., director of an extensive University of Chicago jury study, confirms the belief of most prosecutors and defense attorneys that persons on the lower rungs of the economic and social ladder tend to be more sympathetic to the accused. The well-to-do, on the other hand, are likely to have greater respect for authority and the law. The most elite panel, New York State's "blue-ribbon" jury, is used almost exclusively to hear complex civil and criminal cases. It is composed of persons with high intellectual and technical qualifications. When one New York blue-ribbon jury convicted two criminal defendants, their lawyers appealed to the U.S. Supreme Court. They argued that since the panel was not a cross section of the community, the trial violated constitutional guarantees of a jury of one's peers. But the court (5-4) upheld the convictions.

Inevitable Liars. Experienced lawyers have arcane theories about choosing and challenging a juror. Clarence Darrow believed that Negroes, Jews, Irish and Mediterranean peoples make sympathetic jurors for the defense.* He warned against choosing Prohibitionists, Northern Europeans, Presbyterians and Baptists, but suggested dropping all guidelines in the case of the man who laughs. "A juror who laughs hates to find anyone guilty," he said. Pierre Howard, an Atlanta defense attorney, has kept a card file on jurors for 29 years. Butchers and barbers, he says, make bloodthirsty jurors. In a robbery case, he would challenge a filling-station attendant or a small-loan-company manager because "they go to bed every night wondering if they're going to be robbed the next day."

Myron G. Ehrlich, a Washington, D.C., criminal lawyer, challenges women jurors when the victim of the crime is a woman. Ehrlich's brother Jake, whose San Francisco case histories were the raw material for television's Sam Benedict series, argues exactly the opposite. When a trim little old lady turns up in court with every white hair in place, dressed in a powder-blue suit, says Jake, "I want her on that jury. She knows there's no such thing as rape." But Jake Ehrlich admits that jury picking is basically a risky proposition. "It's like picking a wife," he says. "You don't know where you're going to wind up." Such uncertainty has convinced many lawyers that preconceived theories are almost worthless. "Generally speaking," says Harold R. Medina, of the U.S. Court of Appeals for the Second Circuit, "it's impossible to learn much about a man by questioning him. Prospective jurors lie like hell."

* Why twelve is a mystery. The number has had mathematical importance dating back to the Sumerians 7,000 years ago, as well as ancient religious significance--twelve signs of the Zodiac, twelve tribes of Israel, the twelve Christian apostles. * One sympathetic juror may have been a murderer sitting on the panel in the sensational 1926 Hall-Mills murder case. The Minister and the Choir Singer, a new book by Attorney William M. Kunstler, concludes that the killers of the Rev. Edward Wheeler Hall and Eleanor R. Mills in northern New Jersey probably were hooded Ku Klux Klansmen. Since the society's membership lists were secret, it is possible that a Klansman voted with his jury colleagues to acquit Hall's widow and her two brothers.

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