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Judging the jury

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THE charge in the imminent trial was assault with intent to commit murder. As the prospective jurors began filing in, the prosecutor told the judge that the government expected to produce evidence that the defendant had fired several pistol shots at his intended victim, seated in a parked car. Before the jury-selection process started, the judge invited anyone with real or suspected difficulties about the case to raise a hand. He and the lawyers then interrogated anyone who answered affirmatively; some the judge excused ``for cause.'' The others assured everyone, under oath, that none had bias or prejudice about the case, nor ``any reason whatsoever that would in any way influence or affect [their] deciding this case entirely on the evidence in accordance with law.'' With that, the judge pronounced the panel ``indifferent'': legally neutral.

By state law, the prosecution and the defense were each entitled to have the judge excuse from service up to four prospective jurors. The lawyers controlled the process: Once an attorney ``challenged'' a juror the judge could not interfere. The judge had long ago given up trying to understand why one or another citizen would activate a lawyer's suspicion. Like counsel, the judge's knowledge about any given juror consisted only of the few autobiographical details which appeared on a questionnaire with a space that explicitly invited a recitation of any additional facts which the juror thought pertinent.

Even with deep knowledge of the anticipated evidence, how could anyone rationally decide just which person ought to sit? In some states, lawyers may cross-examine jurors directly before deciding stay-or-go. Supposedly, this voire dire merely seeks to acquaint the lawyers with the jurors.

With one seat left to fill, the defense used its last challenge. The next person selected was, as his questionnaire disclosed, a police lieutenant. In the ``Remarks'' section he had written: ``I once investigated and prosecuted a case of assault with intent to murder.''

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