Must Ignorance Be a Virtue in Our Search for Justice? : Jurors: Americans are entitled to a trial by an impartial panel. That doesn’t mean those selected must be uninformed.

Defense lawyers for Gen. Manuel Noriega are already claiming that it will be impossible to find a jury of 12 people who have not been influenced by the publicity surrounding his indictment and arrest. “We’re going to have a look on the dark side of the moon for people who haven’t heard bad things about the general,” said Noriega defense counsel Frank Rubino.

The claim is not original. On the day that almost any newsworthy criminal trial begins, if not the day of the indictment or arrest, the defense argues: “My client can’t get a fair trial because the prospective jurors have been prejudiced by press reports about the case.”

Noriega’s lawyers point to not only news stories saturating the media; they contend that the President, Defense Secretary Dick Cheney and other high U.S. government officials have repeatedly, on national television and on the front pages of every major U.S. newspaper, called Noriega a drug dealer and gangster. The argument is understandable.

But the justice system’s frequent response to the problem of pretrial publicity--banning informed citizens from a jury--is obsolete in our news-saturated society.

According to the Sixth Amendment, every person accused of a crime has the right to a trial “by an impartial jury of the State and district wherein the crime shall have been committed.” The standard for selecting jurors is impartiality, not ignorance. As described in the common law that underlies our legal system, it must be a jury of “peers.” In fact, in 12th-Century England, the earliest juries were chosen for their knowledge of the case, not their lack of it. In this country, the criterion has long since been reversed.

If a court excludes potential jurors who follow the news, it excludes a vast segment of the population--ironically leaving those who are presumably less interested in the civic principles that a jury is expected to uphold. This exclusion, intended to prevent prejudice, substitutes a different kind of prejudice that undercuts the basic reason we entrust them with crucial decisions of freedom, imprisonment, life and death.

For decades, black Americans were often excluded from juries until the U.S. Supreme Court recognized that a jury of only one race is not representative of the community. A jury from which citizens who seek to be well-informed have been systematically excluded is equally unrepresentative.

Such a jury cannot serve the interest of justice. The jurors should represent the full community, not only the segment uninterested in what the media report in newspapers, magazines, radio and television. A jury representing only that segment, a jury ignorant of a story as important and well-publicized as the U.S. invasion of Panama, is not a jury of “peers.”

Rather than dismiss informed citizens from jury service, thoughtful judges today question them closely about their ability to be impartial. To protect the innocent from being punished, judges already instruct jurors to consider only what they have heard in the courtroom and what the judge has accepted into the record. In almost every case, this means jurors are told to disregard something they have seen or heard in the courtroom. And we trust them to do so.

In fact, the skills of discernment that most citizens exercise and refine daily in evaluating the barrage of news, advertising and rhetoric presented by the media may help jurors to be both impartial and capable. The jury that excludes the informed majority of citizens can be neither.

In the case of Manuel Noriega, as with other criminal defendants, if the court insists on uninformed jurors, it faces an impossible dilemma: It must either set Noriega free, if an adequately uninformed jury cannot be impaneled, or try him before a jury that is not representative of the community.

Mark Twain’s warning in 1871, describing a jury trial in Virginia City, Nev., is even more applicable today:

“A minister, intelligent, esteemed and greatly respected; a merchant of high character and known probity; a mining superintendent of intelligence and unblemished reputation . . . were all questioned in the same way and all set aside. Each said the public talk and the newspaper reports had not biased his mind. . . . But of course such men could not be trusted with the case. Ignoramuses alone could mete out unsullied justice.”