In the U.S., a Jury of One's Peers Usually Decides Guilt Or Innocence. But in a multiethnic society... WHOSE PEERS?

By Richard Lacayo

Just how carefully balanced does a jury have to be in order to render a fair verdict -- not to mention one that the public will believe is fair? In language dating back to the Magna Carta, the English common-law tradition promises defendants a jury of their "peers." The U.S. Constitution mandates "an impartial jury," and American law requires that it be drawn from a representative cross section of the community.

None of those guarantees has been interpreted by U.S. courts to mean that defendants have a right to be tried by jurors of their racial or ethnic background. But in a society that is increasingly racially mixed, the pressure is on to fashion juries that look something like the panel of judges at an Olympic diving meet: one from this nationality, one from that.

The acquittal of four police officers in the first Rodney King trial raised havoc in large part because they were freed by a jury with no blacks, drawn from a California community with very few. In May the retrial of Hispanic police officer William Lozano, whose 1989 shooting of a black motorcyclist set off three days of rioting in Miami, was shuffled five times among three Florida cities in search of a "balanced" jury. Ultimately, a jury consisting of three whites, two Hispanics and one black acquitted Lozano.

Studies of trial outcomes show that in cases in which evidence of guilt or innocence appears to be clear, the ethnic and racial makeup of juries % "doesn't seem to matter," says University of Iowa law professor Michael Saks. Many immigrants come from cultures in which anyone charged with a crime is presumed guilty, and they tend to apply this standard even to defendants of their own background. On the other hand, many are also deeply suspicious of authority because of their experience with prejudice or police harassment. Whatever the case, the presence of jurors who share the background of a defendant or plaintiff is useful in pointing out to other jurors cultural differences and confusions. Paul Igasaki, executive director of the Asian Law Caucus in San Francisco, recalls a recent lawsuit heard by a jury containing only one Asian American. The panel was puzzled by the failure of the plaintiffs to demonstrate sufficient passion over the damages they claimed to have suffered. More Asian Americans on the jury might have illuminated matters by pointing out that the plaintiffs came from a Chinese-Filipino culture that frowns upon public displays of emotion.

"We don't all see things in the same way," observes Beth Bonora of the National Jury Project, a trial consulting firm. "That's why the jury system exists in the first place." But how to arrive at the proper mix to ensure justice? The simplest step would be to expand the pool of potential jurors. The federal courts and nearly all states currently use the list of registered voters. Because minorities, among others, are underrepresented among voters, half the states and some of the federal courts add other lists, most commonly those of licensed drivers. That has problems too. Driver lists, for example, can underrepresent city dwellers, who are less likely to drive, but include ineligible nonresidents and noncitizens.

"We have the rhetoric of representativeness but not the reality," says Temple University law professor David Kairys. "We're not making the effort to get the results, and it is very easy to do." To remedy the underrepresentation of Hispanics in the Philadelphia jury pool, Kairys brought a court challenge earlier this year that led the city to begin drawing potential jurors from the welfare rolls.

Even when minorities are summoned in greater numbers, they often cannot serve because of economic hardship. Many work in low-wage jobs for employers who will not pay the salaries of absent workers. To remedy that, eight states require employers to pay at least part of the salary of workers who are called. As a way to tap into such deprived groups, courts in Hawaii and many other states now dismiss citizens who have not been added to a jury by the end of the first day of their duty, freeing them from the prospect of wasting weeks in the jury pool without serving.

The final fashioning of a jury comes in the courtroom. Though it has never established an obligation for courts to seat multiracial juries, the U.S. Supreme Court in recent years has made it harder to create all-white ones. In 1986 it limited the power of prosecutors to exclude jurors on the basis of race through the use of "peremptory challenges" -- a procedure that allows lawyers to dismiss prospective jurors without explanation. Last year the court similarly restricted defense attorneys.

Even backers of multiracial juries have doubts about forcing courts to create them. "People are not knee-jerk voters in the jury room on the basis of their color," says Los Angeles Superior Court Judge Alexander H. Williams III. "If an African American commits a crime in a city that is all white, is there something wrong with him going to trial with a white jury? It's not a much further step to say that if I'm an African American, I have a right to representatives of my race on any jury that tries me."

Not much further at all; some advocates argue that just such a guarantee of minority representation should be part of the law. Sheri Lynn Johnson, a law professor at Cornell University who has written about jury composition, believes defendants should be guaranteed three members of their own racial group on a 12-member jury. "Race doesn't just influence cases like the Lozano and King cases, but most cases," she says.

If that is so, is the only solution an outright racial-quota system? And how finely would the jury need to be divided? Could Latinos in general judge other Latinos? Or would Cuban Americans be needed for the trial of Cuban Americans, Mexican Americans for other Mexican Americans and so on? If the goal is better justice and greater legitimacy, American juries certainly need to be more representative. But in a just society, the process of creating a true assembly of peers need not be reduced to a systematic gathering of the tribes.

With reporting by Marc Hequet/St. Paul