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To the system's defenders, the average juror's lack of expertise is not a handicap but a positive value, for the jurors are supposed to represent the community's sense of right and wrong. "Our civilisation has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men . . . G.K." Chesterton wrote. "It asks men who know no more law than I know, but who can feel the things that I felt in the jury box."
"When the facts are halfway uncertain, the jury will decide the case in terms of what they think is just which is what they should do," says Hans Zeisel, professor emeritus of law and sociology at the University of Chicago and co-author of The American Jury (1966). Adds Robert Hanley, a senior partner in the Chicago firm of Jenner & Block: "Jurors are great at picking out the gut issue and deciding on that. They can tell whether a chairman of the board is lying or not, and that's what it comes down to."
Hanley has good reason to believe in juries. He represented the MCI Communications Corp. in its antitrust suit against AT&T. In June 1980 a jury found in favor of MCI, and the judge, as required by antitrust law, awarded the company treble damages amounting to $1.8 billion, making it the largest court judgment in U.S. history. It almost did not happen. For tactical reasons, MCI offered at one point to waive its right to a jury. AT&T declined the offer. Says AT&T Chief Trial Counsel George Saunders: "The American jury system is the worst there is, except for any other that has ever been tried or thought of."
Hanley and his trial partner, Chester Kamin, attached such importance to the kind of juror they would get that they hired a political polling firm to survey the attitudes of potential jurors toward each side's arguments. This technique, like those pioneered by liberal lawyers during the political trials of the 1970s, provided a demographic profile of the kind of jurors MCI should seek: self-made and competitive people, intelligent, first-and second-generation Americans, susceptible to arguments that mighty AT&T had been unfair to MCI.
Hanley and Kamin even recruited some of the people surveyed to form three different mock juries for them to experiment on. On three successive nights, Hanley and Kamin presented the heart of their case to one of the juries, then used a see-through mirror to observe the discussion as the jurors "deliberated." The following day they analyzed the jurors' reactions and then revised their presentation for the next mock jury.
The final result confirmed Hanley's almost mystical awe of the jury process. Says he: "I really believe the Holy Ghost descends on those people when they're in there." But Loser Saunders has not lost faith. Says he: "We had a darn good jury. They decided five of the 15 issues in our favor, and I'm absolutely convinced that if they had been properly instructed by the judge, they would have