The Law: Judging Jurors

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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").