Efforts Being Increased to Expand Juries’ Diversity : Courts: Fewer exemptions are granted on the basis of race, sex and occupation. Some call for more innovations.

Dressed in his sweater, khakis and sneakers, Timothy A. Reardon could have been just another juror serving in a recent drug trial here. Except that Reardon is a judge--in fact, a justice on the state Court of Appeal.

Until recently, the judge would have been exempted from jury service. But today, his participation symbolizes efforts to bring diversity to the jury box--in race, sex, occupation and other demographic aspects that help shape jurors’ views of a case.

“It’s good to have people with different backgrounds and different perspectives, both in terms of analyzing the evidence and applying the law,” said Reardon, a former prosecutor and trial judge. “I served like anyone else, and after a few minutes they treated me like any other juror.”

Historically, juries in California and elsewhere had been obtained from a relatively narrow slice of society--retirees, homemakers and others more able to serve--and mostly from the white middle class. These citizens were more often on the voter rolls that were used to find jurors. Many occupations--including lawyers, doctors, firefighters, clergy and elected officeholders--were exempted on grounds that they had better things to do.

Now, over half the states, including California, go beyond voter rolls to seek jurors from lists of licensed drivers, utility customers or even welfare recipients. Most states have eliminated or limited occupational exemptions. And court rulings have made it harder to remove prospective jurors because of race, or more recently, sex.

Still, there is growing concern in the legal field that additional steps should be taken to improve the social and economic diversity of juries.

“No one has demonstrated that broadening the jury pool changes in a significant way the actual result of a trial,” said Stephen A. Saltzburg, professor of trial advocacy at the George Washington University National Law Center. “But the sense of getting a fair trial is enhanced.”

The issue has drawn new attention after the Rodney G. King case. The trial of four white police officers accused of beating a black suspect was shifted from racially diverse Los Angeles County to predominantly white Ventura County. A jury without any blacks acquitted the officers of all but one charge.

“We’ve come a long way, but are we there yet?” asked G. Thomas Munsterman, director of the jury studies program at the National Center for State Courts. “How many Rodney King juries do we have to have?”

“If the King jury had been more diverse, it would have eliminated the argument that the jurors rendered a verdict based on their own prejudices,” said Terri Waller of the National Jury Project, a consulting firm for trial lawyers. “People want to be fair and do their best, but we all are the product of the environment, biases and prejudices that we’ve developed over our lives.”

A major focus of the reformers is peremptory challenges, the courtroom practice that allows attorneys to excuse jury candidates without having to state a reason. Already, the U.S. Supreme Court and its counterpart in California have prohibited the use of peremptory challenges that a judge finds are based solely on race.

Some lower courts have also barred systematic exclusions based on sex. California’s Proposition 115, a 1990 initiative, put jury questioning primarily in the hands of judges, rather than lawyers, in an attempt to save time.

Proposing a further reform, Munsterman and U.S. District Judge H. Lee Sarokin of New Jersey recently suggested doing away with peremptory challenges in a paper presented at a symposium on the future of juries sponsored by the American Bar Assn. and the Brookings Institution.

They and other experts contend that in exercising peremptories, a lawyer really is seeking a biased jury--people whose race, sex, occupation and background will make them more likely to favor the lawyer’s client. A jury drawn from a panel representing a cross-section of the community, subject only to removal for a specific reason, would be more fair, Munsterman and Sarokin argue.

The impact could be significant. Some authorities say that up to one-third of all jurors questioned are excused by peremptory challenges.

Critics say that restricting peremptory challenges may invite lawyers to get the same result by devising reasons other than race or sex for excusing a juror.

Also, defense attorneys say that the trend away from challenging potential jurors ties the hands of lawyers trying to ensure a fair trial for their clients.

“With limited juror questioning, the ability (of attorneys) to discern prejudice is virtually eliminated,” said San Francisco Public Defender Jeff Brown.

Although not necessarily opposing the idea, Brown said that abolishing peremptories effectively would “put diversity ahead of the rights of defendants” and make the task of eliminating biased jurors harder.

Supreme Court Justice Clarence Thomas made a similar point in an opinion filed with a high court decision in June barring the defense, like the prosecution, from excluding prospective jurors by race. Although concurring with the ruling based on legal precedents, he warned that the ruling left defendants with fewer protections against hidden bias.

“I am certain that black criminal defendants will rue the day that this court ventured down this road that inexorably will lead to the elimination of peremptory strikes,” said Thomas, the court’s only black member.

Among the other steps suggested to improve juries are removing the barriers that discourage a wide range of citizens from accepting jury duty.

Saltzburg urges that trials be held at night, that jurors be allowed to take some evidence home to study, that hardship exemptions from jury service be limited and that judges consider imposing deadlines on lawyers to shorten the length of trials.

Shortening trials would increase the chances of getting teachers, nurses and other hard-pressed professionals to serve on juries, he says.

Another method might be to increase juror pay. More employers pay the regular salaries of workers called to jury service. But such civic-minded generosity is not required in California and most states.

In Los Angeles County and other areas, official juror pay is $5 a day. Under an innovative program in Massachusetts, employers must pay employees for the first three days of service; after three days, the state pays $50 a day.

Gloria M. Gomez, manager of jury services for the Los Angeles County courts, notes that the current economic pinch has placed extra strain on workers and their employers, forcing many jurors to seek exemption from service for personal hardship--the only grounds for excusal.

“The thing we run up against these days is the recession,” Gomez said. “It’s hard for smaller firms to continue to pay for jury service--and it’s starting to become a problem for larger firms as well.”

Fairness of trials could also be enhanced, some say, if the practice of granting changes of venue was improved.

California law effectively limits judges to consider only cost and convenience when pretrial publicity and other factors require transfer of a trial from one community to another. The King verdicts sparked legislative proposals--still pending--that would require judges to consider a demographically similar community--in race, age, income and other factors--when changing the site of a trial.

Had such a change been in effect, advocates say, the King trial might have been moved to a location such as Alameda County--which, with an urban, 40% minority population, closely resembles the diversity of Los Angeles.

The proposal to revise change of venue laws has encountered significant opposition in Sacramento. The state Judicial Council, the policy-making arm of the court system, has warned that a change in the law would likely require costly and time-consuming hearings to review what could be voluminous demographic data.

Some lawmakers are similarly concerned about the prospect of trial delays--and voice doubts about the wisdom of making a basic change in the law because of a single unpopular jury verdict.

Prof. Mark Cammack of Southwestern University School of Law in Los Angeles said the venue reform proposal would do little more than slightly increase the chances of minority representation on juries.

Cammack favors an admittedly bold scheme that would give minority participants in trials an affirmative guarantee that members of their race or culture be seated on the jury. At present, the law provides that jurors should be selected from a fair cross-section of the community but does not require that those seated include any particular group.

Such an innovation would raise a host of practical problems--the relative availability of minority jurors and the number that would be required to ensure sufficient influence on the outcome of the case.

But Cammack believes that such a plan is needed. “It does in fact make a difference who serves on a jury,” he said. “In making sense of the evidence, jurors necessarily call on their backgrounds.”

Experts acknowledge that there has been significant progress in recent years toward achieving more diversity in the jury box. Los Angeles County jury officials say that although they cannot offer precise data, spot surveys show that the racial makeup of eligible jurors generally matches overall census figures. Data submitted in a 1988 court case showed that blacks made up the same percentage of prospective jurors as of countywide population--11.4%.

But other data reveals a remaining major obstacle: of those who are asked to serve, many are excused for hardship--and many more, without penalty, do not respond. In Los Angeles, more than one-third of the nearly 2 million people who received jury notices in 1988 did not answer the call. Some 500,000 responded but were excused for financial, medical or other personal reasons.

“Many people do not take a jury summons seriously,” said jury consultant Waller. “We need to follow up (on an unanswered summons) and encourage people to participate in the jury system. . . . That again would bring more diversity to the juror pool.”