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Many of the same problems apply to the selection of grand juries, which hear a prosecutor's presentation of a case and then decide whether a suspect should be indicted. Grand juries are supposed to protect citizens against intimidating prosecutions, but many experts now regard them as a needless anachronism and an opportunity for prosecutorial excess. Most states no longer require their use, but the federal courts and 22 states still insist upon them for serious crimes.
Even the most exquisitely balanced prospective jury list is only a battleground for the opposing lawyers to start fighting for the jurors they want. "Picking a jury is the most difficult thing a lawyer does," says John Ackerman, dean of the National College for Criminal Defense in Houston. "And few lawyers know how to do it. You get no training or any help at all on that issue in law school." The teachings of courthouse legend are all stereotypes. Prosecutors, says University of Illinois Sociologist Rita Simon, are alleged to favor 1) men, 2) Republicans, 3) the prosperous, 4) bankers, engineers and accountants, and 5) Germans. Defense attorneys supposedly favor women, Democrats, poorer people, social scientists and minorities.
Most lawyers claim that their judgments are somewhat more sophisticated. Washington Attorney Jacob Stein, for example, is partial toward librarians because "they listen to reason." New York Legal Aid Society Attorney Dan Nobel is philosophical: "I look for someone who's basically not bitter about life, someone who knows that this is not the best of all worlds." Courtroom Star Louis Nizer suggests subtler methods. Says he: "If I see a juror who draws his mouth together very tightly, I'm inclined to think he's a severe fellow, too severe."
Implicit in all such observations is the idea that the lawyer is seeking only someone fair and open-minded, while his antagonist yearns to find bigots and idiots. "It's really foolishness for lawyers to tell jurors that they want them to be impartial," says New York Attorney Herald Price Fahringer. "We all do it, and it's a lie. I don't want an impartial jury. I want a jury that is compatible to my client's cause."
Chicago Prosecutor William Kunkle favors self-employed business people, homeowners and those with strong religious views. He would challenge, he says, "anyone who has had one psychology course or one sociology course in college." That is not, he insists, the often charged but never admitted bias against intelligent jurors. Kunkle's reasoning: "The jury brings in common sense, a knowledge of everyday life. Say the case involves a tavern fight. Is someone with a Ph.D. in English literature really going to be helpful in deciding the issues?"
Some would answer that the whole fuss over jury selection is exaggerated. Says Glenn Zell, an Atlanta attorney who has specialized in defending obscenity cases: "If you take the first twelve, it'll be just as good."
Once the courts have solved all problems of getting the jurors assembled in the jury box,