Judging the jury

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.''

Before the officer could enter the jury box, defense counsel was asking for a bench conference. ``Your Honor,'' he said, ``I ask you to excuse this juror for cause.'' Unlike ``peremptories,'' whose number is strictly limited, challenges for cause are infinitely available. Here, however, the juror had already indicated, indeed, sworn to, his impartiality. The judge allowed him to serve, and the trial commenced.

The testimony turned out exceptionally strong. To the judge, at least, a guilty verdict seemed certain, and he felt a slight twinge about seating the lieutenant. That, however was past remedying. Now, he could only try to keep the trial as fair as possible; his final instructions to the jury were (he was pleased to think) thoroughly impartial. As was his practice, he did not pick the foreperson himself, but left that choice to the jurors.

When, after an hour's deliberation, the jurors returned, the police lieutenant led them, carrying the verdict slip, emblem of his selection as foreperson. The judge's twinge magnified.

``What say you, Mr. Foreman?'' the clerk intoned. ``Is the defendant guilty or not guilty?'' Promptly and loudly, the lieutenant replied: ``Not guilty.''

After the defendant had been discharged, several jurors, including the lieutenant, asked to speak to the judge.``We were wondering,'' said a woman, ``why the government brought this case; it seemed pretty weak.''

``I'll second that,'' said the lieutenant. ``It's the worst, sloppiest investigation I've seen in 17 years as a police officer. They should be ashamed at having wasted everyone's time.'' ``Well,'' said the judge, ``cases aren't always predictable.''And, he added to himself, neither are juries - or jurors.

Hiller B. Zobel sits on the Massachusetts Superior Court.