Judging Jurors

Even before the first word of testimony, many trials pass through a critical yet haphazard phase: the selection of jurors. In major cases prosecutors sometimes do enlist police or the FBI to check out potential jurors; defense attorneys occasionally commission their own investigations when their clients can foot the bill. But the final decision about a juror is usually based on a large dose of intuition--bolstered, when possible, by past experience.

That longstanding practice is being shattered in the St. Paul, Minn., federal courtroom where militant Indian Leaders Russell Means, 34, and Dennis Banks, 41, are facing assault and other charges related to last year's armed occupation of Wounded Knee, S. Dak. A special team, working with the defense lawyers, is applying inventive social science techniques to give prospective jurors an unusually systematic going-over.

Leading the team are Sociologist Jay Schulman and his principal aide, Psychologist Richard Christie, who have run up a short but impressive trial record. Consultants in three previous trials of radical defendants (the Harrisburg Seven, the Camden 28, the Gainesville Eight), the jury-selection specialists have helped pick 34 jurors who voted for acquittal. Their two misses were the jurors who held out for conviction and forced a hung jury in Harrisburg.

The operation is divided into three distinct parts--a sociological "profile" of the community, in-court scrutiny of potential jurors, and field investigation of their backgrounds. Preparation for the Wounded Knee trial began three months ago. Thirty volunteers spent five weeks conducting phone interviews with 576 people chosen at random from voter lists. The questions probed for signs of prejudice by asking about attitudes toward business, public personalities, police and, of course, Indians.

Broken down into categories, the results fill 1,000 pages of computer printouts which are designed to help predict how types of people from the particular community might be expected to react as jurors. There are, says Schulman, significant regional differences. In Harrisburg, polling indicated that women would be more friendly to the defense than men. They promised to be harsher in Gainesville, and the same as men in St. Paul. Following their predictive profiles, the defense looked in Harrisburg for working-class Lutherans, Roman Catholics and Brethren, a pacifist sect in the area. In Gainesville, defense lawyers tried to choose high-status Episcopal and Presbyterian professionals.

The courtroom scrutiny is no less thorough than the computer study. For the current case, ten observers, including an Indian psychologist and a body-language specialist, are scattered around the courtroom jotting notes for later discussions on what the candidates revealed about themselves during questioning. Schulman's own comments tend to gauge emotional styles ("obdurate," "feels warm," "holding back"); Christie records types ("earth mother," "fraudulently mod," "Viking quarterback").

When the predictions of the computer survey do not agree with the consensus of the courtroom observers, the field check becomes critical. A network of 50 defense sympathizers is now investigating every member of the jury panel. One woman, who has already been tripped up, gave open-minded answers in court that contradicted computer predictions. A tip revealed that far from being the regular Methodist churchgoer she claimed to be, she had actually quit her church after an unsuccessful fight to oust a minister she considered too liberal. She was dismissed for cause by Judge Fred Nichol because of her lack of candor.

Nichol, who is doing all the juror questioning himself, is frankly impressed with the team's techniques and is using some questions it suggests. Soon the panel will be whittled down to 38 possible jurors who have not been disqualified for cause; the prosecution will then have six peremptory challenges, the defense 20. Means and Banks will exercise the final say as to how the defense uses its challenges.

Not for Hire. Schulman, 46, comes to his avocation from a radical background. He calls himself a "broken-down academic," having lost posts at Cornell and City College of New York because of his activism. He got into the Harrisburg case partly because of his friendship with Daniel Berrigan. Christie, 55, a Columbia professor of social psychology, became involved through his friendship with Schulman.

The bearded, bear like team leader insists that he is merely "doing what lawyers do--only more systematically." Whatever the merits of his approach, it is likely to be too expensive for most trials; the profile poll alone would normally cost some $20,000. Schulman and all members of his teams have always donated their time. Recently he was asked to work for a white-collar criminal defendant, but he declined the chance to hire out.

Though many lawyers are interested in the Schulman technique, there is also some skepticism. Ramsey Clark, one of the defense attorneys at Harrisburg, observes, "Generalizations developed through sociological data can be very misleading. They can be used to reinforce prejudice as well as eliminate it." Judge Nichol is far more enthusiastic: "I can see the Government adopting this system some day."

But if the technique did spread, would it provide the sort of randomly selected group of neighbors that the traditional approach is supposed to produce? Further, if the prosecution were to adopt such expensive techniques, should they not also be made available to defendants who cannot afford them? Whatever the answers, Schulman and Christie will not soon be idle. Polling for a profile of the area around Buffalo is now well under way for the upcoming Attica trials.

This file is automatically generated by a robot program, so viewer discretion is required.