Small Vanguard Presses Its Case for Jury Reforms : Courts: Proposals include letting jurors ask questions of attorneys. Critics say it upsets the balance of the system.

Ten floors above this sunbaked city, five women and nine men take seats in Superior Court Judge B. Michael Dann’s courtroom to decide a stranger’s fate--and become the latest unwitting guinea pigs in Dann’s grand experiment in judicial reform.

Dann welcomes the jurors and then encourages them to do what many of his fellow judges think is the unthinkable. The jurors can ask questions not raised by attorneys by slipping Dann messages, and he even proposes that jurors be allowed to discuss their notes--and the evidence--as they go along. Before any testimony is heard, Dann gives each a printed copy of the jury instructions that clearly state what must be proved in the aggravated assault case, and reads them aloud.

Then he leads them in the first of many seventh-inning stretches. Grinning, the once-fidgety jurors stand in unison. For a moment, they look like they’re doing the wave.

Dann’s offbeat notion of how to run a trial has made many judicial colleagues exceedingly anxious since his “experiments” began four years ago. Some lawyers and prosecutors who come before him contend that he abuses his courtroom authority to upset the sacrosanct balance of the jury system.

Others disagree, so much so that Dann is in the vanguard of a small but growing number of legal experts who say there is a tremendous need for jury reform, from the beginning of the complex process to its often rancorous end. He is one of an even smaller minority, in that he has a courtroom in which to test-drive the reforms, and he does not hesitate to use it.

Jury reform is rapidly gaining support in the wake of such highly publicized--and much questioned--verdicts as the acquittals in the first Rodney G. King beating case and hung juries in the Menendez brothers’ murder trial. Many call for sweeping improvements, warning that the jury trial system could self-destruct without them, or peter out for lack of public participation.

“There are some who scoff at the idea” of reform, said Los Angeles County Dist. Atty. Gil Garcetti, who recently launched a task force like one Dann heads in Arizona. “But there are enormous questions, and enormous concerns.”

Study upon study suggest that the jury process is inherently dysfunctional because of its insistence on passive jurors who cannot interact with each other or the judge and lawyers. That, reformists argue, flies in the face of modern understanding of how people process information and understand it.

Jurors “are spoon-fed by lawyers and judges, and not all of what they get is digestible and understandable,” Dann said. “And they are made to sit on their hands and keep their mouths shut.”

As a result, studies and some experts argue, an alarming number of jurors do not comprehend the stupefying amount of evidence and the convoluted jury instructions thrown at them in many complex trials. Sometimes they come down on the wrong side of the law.

Responding to concerns that overly homogeneous juries are skewing verdicts, New York recently began using unemployment and welfare lists to broaden the jury pool, and Los Angeles is looking at similar measures. One in three jurors nationwide is impaneled under a “one day, one trial” system designed to lure more working professionals and low-income workers.

Massachusetts, Colorado and Connecticut require employers to cover the first few days of service, and then the court pays $50 a day, even for the unemployed. Minnesota provides day care. And judges in Bellflower and Downey were cloaking criminal juries in anonymity so they could deliberate without fear of retribution until an appellate court ruled against them last week.

“These innovations, they need judicial supervision, but if they can be done, they would be wonderful,” said G. Thomas Munsterman of the National Center for State Courts’ Center for Jury Studies near Washington. “Examination is always healthy. I’d like to think it (jury system) is not so sacred that it can’t be touched.”

In the nettlesome area of judicial reform, however, much seems sacred. Little has changed since 1735, when one of the nation’s first juries acquitted printer John Peter Zenger of sedition charges. That jury did not have the power to question or investigate, as earlier juries in England did, because lawyers had long before usurped that authority--and have held onto it.

Many in the legal Establishment like it that way, or at least tolerate it.

But why?

Former Chief Justice Warren Burger of the Supreme Court once encouraged judges to “stretch the mind” and embrace reform. Yet most are creatures of habit, who fear reform could lead to criticism by appellate courts, said U.S. District Judge William Schwarzer, who heads the Federal Judicial Center in Washington. “People are afraid of making changes out of fear they will introduce errors,” said Schwarzer, a vocal proponent of reform.

U.S. Court of Appeals Judge Patricia McGowan says judges “are busy people” and should not be expected to lead reform efforts; lawyers respond that judges are often the only ones with the power to do so.

Dann believes that lawyers enjoy adversarial trial battles in which they fight tooth and nail for their clients. They, and most judges, he says, covet their power and do not want to share it with juries. Worse, many worship the jury as an institution while harboring a deep distrust of the ability of jurors, Dann and others contend.

“It’s an anomaly,” Dann said during a break in the trial. “We trust them to decide life and death, but we don’t trust them to take notes, ask questions and get the information they need to make the right decision.”

Instead, as he does this day, Dann makes sure his courtroom is not a battlefield between lawyer and prosecutor, but rather a classroom of sorts where jurors can think, communicate and learn.

All well and good, says University of Delaware psychology professor Valerie Hans. “The tightrope that you have to walk,” she said, “is getting more active juries without going too far and allowing them to become inquisitors.”

Los Angeles area professor and lawyer Franklin D. Strier writes in a new book that juries and judges should be given more authority, to counter “adversarial dirty tricks, witness coaching, discovery abuse and hardball tactics.”

In Strier’s 1988 survey, two-fifths of 3,800 Los Angeles jurors believed that attorneys were trying harder to distort or hide the facts than reveal them.

Every reform effort has its opponents. Even a change as seemingly innocuous as note-taking, which some judges allow, has critics who say it limits jurors’ ability to observe the demeanor of witnesses and other signs of credibility.

Most reforms already implemented focus on pretrial issues, such as getting more diverse jurors to go along with the usual white retirees and government workers. Trial reform is far more rare.

“If it is taking place,” University of Minnesota Law School Prof. Steven Penrod said, “it is happening in a piecemeal fashion.”

Munsterman’s group, with help from Dann and others, will soon review reform efforts nationwide. They will look to Arizona, where Dann’s committee of legal experts spent a year formulating reforms at the state Supreme Court’s request. This month, the group unveiled a 56-point reform blueprint that incorporates Dann’s methods. It also proposes child care and other juror perks, time limits on trials, better use of technology to help jurors recall exhibits and testimony, a juror “bill of rights” to ensure that jurors are treated with respect, and counseling for post-trial stress.

The group also recommends that juries not only receive interim trial summaries to help them remember but legal advice from the judge if they appear headed for a deadlock.

“One judge on the East Coast recently asked me just what the hell is going on out there in Phoenix,” chuckled Superior Court Judge Barry Silverman, one of Dann’s colleagues. “This is not avant-garde, crazy nonsense. It is common sense, logical stuff.

“When lay people hear this,” he added, “they hit themselves on the head and say, ‘Why haven’t we been doing this stuff all along?’ ”

Task forces in Louisiana, Oregon, Minnesota and New York recently released similar reform-oriented studies, and there are several new books on the subject. Two years ago, the American Bar Assn. and the Brookings Institution convened a national symposium at which experts said reform efforts should target jurors’ boredom, frustration, poor comprehension and confusion.

However, trying to inject innovation into the court system appears easier said than done. “Court reform,” former New Jersey Supreme Court Justice Arthur T. Vanderbilt said 40 years ago, “is no sport for the short-winded or the faint of heart.”

He wasn’t exaggerating. In 1930, a New York group proposed a long list of improvements. Trial lawyer Colleen McMahon says they are “still on the table.”

McMahon, who chairs New York state’s task force, likened the many current obstacles to reform to “the elephant that is standing in the middle of the room.”

She warned that unless much progress is made, “there will not be enough jurors. It is that simple.”

Small steps have been taken. In Fairfax County, Va., officials better prepare jurors by using cable TV to provide orientation. Phoenix and Los Angeles send prospective jurors a bar-coded badge that eliminates most paperwork.

And there have been some substantive changes.

More than half the states now go beyond the traditional voter rolls, using driver’s license lists and other databases to get jurors. Many are trying to eliminate longstanding occupational exemptions for lawyers, doctors, firefighters, clergy and morticians who say they are too busy to serve.

Florida, Colorado and other states and cities have converted to the one-day, one-trial system. Critics say two week jury service, such as that in Los Angeles County, is inefficient and boring, and scares away professionals.

Critics also contend that more needs to be done to prevent professional jury selection consultants from affecting trial outcomes. The U.S. Supreme Court prohibits removal of prospective jurors because of race or gender. In New Jersey, U.S. Court of Appeals Judge H. Lee Sarokin wants to bar all “peremptory strikes” (eliminating jury candidates without cause), contending that they are no longer a tool for ensuring fair juries.

Ways of splitting major trials into manageable parts and transferring some complicated civil trials from juries to judges are being examined. Other legal experts are calling for more Draconian measures, such as taking divorce cases, business disputes and drug trials out of the hands of juries.

New technologies are being used. In Los Angeles Superior Court Judge George Trammell’s courtroom, computers can display documents, photos and graphics, and video cameras allow jurors to watch attorneys, witnesses and the judge. Jurors in the O.J. Simpson case will be able to view evidence on 67-inch-screen TVs.

Efforts to provide jury instructions, printed and in plain English, at the beginning or middle of the trial instead of at the end are multiplying. Garcetti is seeking a $60,000 federal grant to make all Los Angeles County jury instructions more understandable.

Garcetti, like his predecessor Robert Philibosian 10 years before him, believes that California may do well to look at jury systems in Oregon and Louisiana. Those states have long used non-unanimous juries in all but the most serious murder cases, with fewer hung juries as a result. And Garcetti supports legislation to temporarily bar jurors from making money off high-profile trials such as Simpson’s.

There are myriad other suggestions: Sharply limit exemptions and hold trials at night to get more professionals on juries. Provide jurors with reference books so they can understand complex issues such as DNA testing. Upgrade jury rooms.

Some, such as the Montana-based Fully Informed Jury Assn., are pushing controversial “jury nullification,” in which jurors can essentially place their conscience above the law and acquit even defendants who broke a law.

Others argue for smaller juries, saying they save money. Opponents say shrinking juries would make them less representative and more prone to mistakes.

While all these proposals are bandied about, Dann is using his courtroom to test many of them, without telling jurors how unusual they are until their work is done. Then he interviews them to see how it all worked.

Dann, 54, is an inveterate prankster with a schoolteacher wife, three grown children and a passion for Phoenix Suns basketball. Driving his Honda sedan, he is cautious, never challenging the speed limit.

But he is daring when it comes to the law. You cannot, he says, effect change if you are paralyzed by fear of reversal by a higher court or criticism from the legal Establishment. He laughs about a meeting not too long ago at which a bunch of judges “almost hooted me out of the room” when he brought up some reform ideas.

He is far from the most popular person in the Maricopa County Courthouse, even though several judges are trying some reforms. When court personnel gathered outside one recent noontime, they erupted into argument at the mere mention of his name.

“He’s stupid, off the wall,” snapped one former clerk of Dann’s.

“I’ll defend the guy till the cows come home,” countered a former bailiff, who said Dann’s changes made jurors the best and happiest in the courthouse.

Dann relishes causing such a judicial ruckus, and expects some opposition when the recommendations go before the Arizona Supreme Court, which will vote within six months on which ones to adopt. “In general, they are excellent,” said Chief Justice Stanley Feldman.

Prominent attorney Joseph Shaw, 82, believes reform is long overdue. To the judicial system, he says, “this was all like Catholicism--you just didn’t do certain things. But it ought to be done.”

Deputy County Atty. Michael Kemp was dead-set against the newfangled jury empowerments--until he tried a few cases before Dann and won. “Now I’m all for it,” he said. “In a rape case, a real ugly case, (jurors) asked some very good questions.”

Jurors in a recent murder case posed a host of questions, including soliciting more information from a ballistics expert. “What kind of ammo used?” one note read. “How did (defendant) acquire the weapon?” “Can jurors see the gun?”

Dann said questions helped jurors arrive at a swift conviction.

Back at the courtroom as jurors take a break, defense lawyer Greg Clark is growling about the question privilege; his client faces a year in prison.

“It’s stupid,” he said, out of Dann’s earshot. “If a lawyer can keep things out (of trial) and hoodwink his opponent, why would you then allow jurors to get around what you’ve so laboriously orchestrated? Why should we allow some juror to ask a question we don’t know the answer to?”

Dann says that is precisely why jurors should be able to ask questions. Too many lawyers and prosecutors, he says, “hide the ball” and trick jurors, often with great success.

The recent trial is short and uneventful, and after Dann orders the two sides to negotiate a plea bargain, Clark’s client pleads no contest and is given probation. None of the jurors asked any questions. Eight jurors later said they could not imagine why all juries do not have the same powers that they did.

“If we have the responsibility, why shouldn’t we have the tools we need?” asked Eileen Sampanes, a health care professional. “If I was on the other side of that (defendant’s) table, I would want the people sitting in judgment to have the same powers, the same ability. It makes it as fair as possible.”

About This Series

In this four-part series, The Times examines the strengths and flaws of the American jury system and the need for reform.

* Sunday: Deadlocks in recent high-profile cases have thrown the spotlight on the U.S. jury system, raising questions about whether it deserves to survive.

* Monday: High-priced consultants are helping defendants pick favorable juries, but how much of a difference can they really make?

* Tuesday: The Times Poll examines attitudes toward jury service and the jury system in Los Angeles County.

* Today: Warning that the jury trial system could self-destruct without change, a small but growing number of legal experts are calling for sweeping reforms.

THE TIMES POLL: How to Improve the System

Los Angeles County residents were asked whether certain changes in the jury system would improve it or make it worse. Three of the five recommendations--juries reaching a verdict by majority vote rather than the current unanimous vote, requiring jurors to have a minimum level of education and requiring that every jury reflect the racial, ethnic and gender distribution of the local population--all were supported by half or more of those polled. Other suggested reforms were far less popular.

What would you think about requiring jurors to have a minimum level of education? Would that improve the system, make it worse or have no effect?

All Served on Jury White Black Latino Asian Improve 58% 56% 63% 50% 53% 63% Worse 18% 19% 17% 12% 23% 9% No Effect 21% 21% 17% 36% 21% 25%

***

What would you think about requiring that every jury reflect the racial, ethnic and gender distribution of the area?

All Served on Jury White Black Latino Asian Improve 51% 38% 43% 67% 58% 46% Worse 14% 20% 20% 9% 10% 11% No Effect 27% 34% 29% 19% 24% 35%

***

What about allowing juries to reach a verdict by majority vote rather than the current unanimous vote required?

All Served on Jury White Black Latino Asian Improve 50% 48% 46% 42% 57% 62% Worse 27% 36% 36% 30% 15% 19% No Effect 17% 8% 12% 23% 22% 14%

***

What about allowing a judge to make the decision about a suspect’s guilt or innocence in some trials without having a jury at all?

All Served on Jury White Black Latino Asian Improve 34% 37% 35% 26% 35% 34% Worse 43% 40% 43% 53% 40% 36% No Effect 16% 15% 13% 17% 20% 22%

***

What about reducing the size of a jury so fewer people would have to reach a consensus for a verdict?

All Served on Jury White Black Latino Asian Improve 33% 28% 30% 22% 42% 29% Worse 33% 40% 37% 36% 29% 27% No Effect 26% 25% 24% 39% 23% 36%

NOTE: Numbers do not add to 100% because the “Don’t Know” category is not shown.

SOURCE: L.A. Times Poll interviewed 1,703 Los Angeles County adults, including 1,038 residents who are eligible to serve on juries and 355 people who have served, Sept. 17 through 23. The margin of sampling error for the total sample and eligible jurors is plus or minus 3 percentage points.

Around the World

No other developed country allows lay people as much power to decide civil disputes and criminal cases as the United States. Here is a look at legal systems in other countries:

ISRAEL

Most cases are tried by one judge, but murder and rape trials are handled by panels of three district court judges. Judges are chosen by a panel consisting of the Supreme Court president, two other Supreme Court judges, the justice minister, a lower court judge, two members of the Israel Bar Assn. and two members of the Knesset, Israel’s parliament. The Supreme Court president also assigns judges to cases. Thus, unlike the U.S. system, the criminal defendant has almost no say in the process of choosing who will decide his case.

GREAT BRITAIN

Although Americans borrowed the jury system from England, the British rarely use juries for civil trials, except in libel cases. British juries decide criminal cases and usually must reach unanimous verdicts. If deliberations take longer than two hours, however, judges in London often accept a majority verdict. Jurors are selected at random from registered voters who are 18 to 70 years old.

BELGIUM

A 12-person jury is required for all capital cases. The system has been controversial because so few people are willing to serve. A furor erupted in Brussels last year when the trial of a notorious accused international gangster and killer had to be delayed for six months because of a lack of jurors. Jurors claimed to be ill, on vacation or too frightened of repercussions to serve.

GERMANY

Lay people serve with judges on panels to decide criminal cases. A majority vote is needed for a verdict. In serious crimes, judges make up the majority of the panel. Lay jurors make up the majority when cases involve minor offenses. Some German legal experts contend that the lay people are just window dressing, with the real power residing with the judges. Complaints about the system focus more on the judges and their competence than on the lay jurors.

CANADA

Judges can overturn a jury acquittal in a criminal case and freely comment to the jury on the evidence. Judges also decide most civil cases, although litigants can seek jury trials. Judges and defendants are given great discretion to decide how much of pretrial deliberations may be made public. A defendant, for instance, can ask, and is automatically granted, a prohibition against news reports of pretrial hearings. Reporters may observe courtroom proceedings but cannot report on them until after a jury is seated.

JAPAN

Judges have sole power to decide the outcome of trials. Without the need to worry about minimizing disruptions in jurors’ lives, trials proceed slowly, often taking years before arguments are completed and verdicts are rendered. Although the judges are supposed to be impartial, scholars say they are influenced by a variety of pressures, such as organized public campaigns. Judges are widely believed to consider how their decisions might affect their chances for promotion.

Compiled from Times staff reports