COLUMN ONE : Jury Is Out on the Role of Gender : The Menendez trial raises tantalizing questions about how jurors think. Lawyers often rely on their own assumptions, but research says predicting a panel’s reaction is tricky.

“If the plaintiff is a woman and has those qualities which other women envy--good looks, a handsome husband, wealth, social position--then women jurors would be unwise. Women’s inhumanity to women is unequaled. They are the severest judges of their own sex . “

--Melvin M. Belli Sr., 1982

“I don’t like women jurors because I can’t trust them. They do, however, make the best jurors in cases involving crimes against children. It is possible that their ‘women’s intuition’ can help you if you can’t win your case with the facts . “

--From a 1970s jury selection manual for Dallas prosecutors

“Mostly it is astonishing how few gender differences you can find on most questions.”

--University of Chicago law professor Albert Alschuler, 1994

Before the Menendez trial even started, lawyers in the case assumed that female jurors would be good for the defense, men for the prosecution.

More than six months later, the Erik and Lyle Menendez juries were deadlocked, torn between the prosecution’s argument that the brothers murdered their parents out of hatred and greed and the defense’s contention that they feared for their lives after years of abuse by their father.

The outcome has set off a tantalizing debate over a question that jury experts have grappled with for years:

Does gender play a role in jury decisions?

Some close observers of the sensational trial argue that it most surely did. Totaling the votes from both panels shows a majority of men for murder convictions and of women for leniency.

On Erik Menendez’s jury, the gender split could not have been more pronounced in the killing of his father, Jose. Deliberations churned up a bitter battle of the sexes, with the six men pressing for first- or second-degree murder and the six women lined up solidly for lesser charges.

But such gender divisions are rare on juries, experts say. And, in fact, it did not happen that way on Lyle’s panel: Women were slightly harsher than the men.

Contrary to the widely held views of attorneys, studies have found that the gender of jurors does not shape most verdicts. Although jurors of one gender may be responsible for a certain case’s outcome, research shows statistical differences between male and female jurors only in sexual assault trials.

Sexual assault did figure in the Menendez case, where both brothers claimed that their father raped and molested them. But unlike Lyle Menendez, who said his father abused him for two years as a child, Erik Menendez testified that he was molested until the time of the killings. He, therefore, may have been perceived as having suffered more than his brother.

“Women might have been more likely to believe in the possibility of long-term sexual abuse than men,” said Valerie Hans, a University of Delaware criminal justice and psychology professor and co-author of “Judging the Jury.”

Experts said the gender polarization on Erik Menendez’s jury also may have been triggered by hostility that developed during deliberations, prompting female and male jurors to unite by sex.

Women may be more likely than men to believe testimony by children, ongoing research suggests, but it is not clear whether that difference holds up after deliberations. More women than men also oppose the death penalty.

“The research suggests that gender typically doesn’t make much of a difference (in verdicts) except in cases that involve real women’s issues, like rape, where women are more punitive than men are,” said Phoebe Ellsworth, a University of Michigan professor.

Whatever the reason, the Menendez case only reinforced what many lawyers have long believed: Women, particularly mothers, tend to be more sympathetic to certain kinds of defendants.

“If you have a death penalty case,” said prominent Los Angeles criminal defense attorney Johnnie Cochran, “you want a mother on the jury or someone who understands about raising children.”

Even more than gender attitudes, the different jury votes may have reflected the different styles and personalities of the two defense attorneys, Cochran said.

He speculated that some of the men on Erik Menendez’s jury “may have felt threatened” by defense attorney Leslie Abramson, while the women may have been captivated by her “dominating presence” in court. He said her maternal gestures, such as picking lint off Erik’s shoulders, may have particularly struck a chord with the women. Jill Lansing, Lyle Menendez’s attorney, was “a bit more low key, not as dominating in the courtroom,” Cochran said.

But all sorts of factors can shape jury decisions. Juries often bend the law when they believe the outcome would be unjust, a factor cited by experts to explain the recent acquittal of Lorena Bobbitt and the verdicts in the Reginald O. Denny beating case.

During Prohibition, juries rarely convicted bootleggers. Before the Civil War, Northern juries almost never convicted people charged with helping slaves escape. In 18th-Century England, juries refused to convict people in capital cases because they found the death penalty too extreme.

Today, abuse defenses resonate as realistic in what one legal expert called our “Oprah Winfrey society,” accustomed to tales of dysfunctional families and famous people distraught because of childhood abuse.

A male juror admitted that he believed Lyle Menendez was legally guilty of first-degree murder but voted for second-degree because he felt “pity” for him after hearing his claims of abuse. “The physical abuse was so severe, I didn’t want to convict him on first-degree murder,” said the juror, who asked not to be identified.

Although women today are considered more sympathetic to sexual assault victims, lawyers widely assumed 15 years ago that women tended to blame the victim in rape cases. Some research back then suggested that women needed to distance themselves from the victim so they could convince themselves “This could not happen to me.”

Jury experts also have learned over the years that geography can affect views of people of the same gender. Pretrial polls taken in the early 1970s showed that women in Pennsylvania were more sympathetic than men to defendants in anti-war cases. But similar polls in Florida found women were harsher.

“The best guess that we have,” said Neil Vidmar, a Duke University law professor and jury consultant, “is that at least at that time, Southern women were much more traditional and deferential to authority.”

Even in abuse cases, predicting female jurors’ attitudes can be tricky.

When a woman goes on trial for killing an abusive husband, women who have been battered themselves may not support the defendant because they never resorted to killing, said Lois Heaney, a trial consultant for the Menendez defense.

In her view, it is important to assess how jurors who suffered abuse dealt with it, including whether they sought psychological counseling.

“In some ways,” Heaney said, “the dangerous person is the person who says ‘I was abused, but I am fine.’ . . . People tend to judge people like themselves more harshly.”

Some of the best jurors for battered women charged with murder have been men, she said. They tend to want to distance themselves from the cruelty committed by the husband and may feel protective toward the defendant.

Nevertheless, lawyers pick jurors according to stereotypes all the time. Most of their prejudices are based on how such people voted on previous juries.

Irish-Americans have been thought to be good for the defense because they are considered emotional and likely to get in trouble with the law, whereas Protestants have been seen as strict and judgmental. Women have been viewed as sympathetic to the defense, men as more rule-bound.

San Francisco criminal defense attorney Gil Eisenberg said he follows his own generalizations when picking jurors: Women in their early 20s are categorical, judgmental and rigid; middle-aged men are flexible, and Asians submit to authority.

But he said he has found exceptions to all of these rules. “I pay attention to them,” he said, “but I am not rigid about it.”

Gerard Lynch, a former prosecutor and now a professor of law at Columbia University, recalled that a fellow prosecutor many years ago advised him never to seat a juror who wore sunglasses indoors.

Such behavior, the prosecutor opined, meant the person was probably a nonconformist who wanted to cultivate a “hip” image. Prosecutors also were wary of people who seemed stubborn, fearing a hung jury. But Lynch now would heed such admonitions no more than he would the daily astrology column.

Often the particular rapport an attorney may sense with a prospective juror is more important than anything else about that juror, he said. Lynch recalled trying a case in which an older woman, a prospective juror, gazed at him in a way he felt was maternal.

“She just had this fond gaze so I figured this is somebody who is going to be good for me, regardless of her political views or gender. And it turned out the instinct was right.” He later discovered that the juror had a son who was a professional about his age.

The U.S. Supreme Court has held that prospective jurors cannot be eliminated because of race alone and will soon decide whether they can be eliminated because of gender. In the case before the high court, the prosecution eliminated men from a jury deciding a paternity case.

Lower courts have frowned on gender-based disqualifications. The U.S. 9th Circuit Court of Appeals in October reversed the conviction of a man convicted of passing counterfeit securities because the prosecutor disqualified two unmarried women from the Los Angeles jury. The prosecutor had argued that the women would be physically attracted to the handsome defendant.

The influence of women on juries has not been widely researched. In fact, women have been on juries in significant numbers nationwide only since the late 1960s, said Stanford University law professor Barbara Babcock, who has written extensively about juries.

Even after women got the vote, she said, some states continued to ban them from juries. In later decades, women were routinely excused from jury duty because of child-rearing responsibilities. In studying 20 mock juries in 1979 and 1980, Ellsworth, the University of Michigan researcher, found male jurors still did most of the talking. The men were more likely to be elected foreman, and they interrupted women more often. In the 20 juries, only one elected a forewoman.

“I also found that a woman will say something and there won’t be any real response to it,” Ellsworth said. “And sometimes in the next five minutes, a man will say the same thing, and people will say: ‘That’s a good idea. We can get somewhere with that.’ ”

Research shows that men and women are equally good at recalling evidence and understanding points of law. Bette L. Bottoms, an assistant psychology professor at the University of Illinois in Chicago, is using mock juries to study how male and female jurors respond differently to alleged crimes against children.

So far, she has found that women tend to believe children more readily because they can more easily “take the place of a child” and empathize with children. But the differences are slight and may not hold up after deliberations, a point she is still testing.

In general, juries tend to be more lenient once they start deliberating because they begin to fret about “reasonable doubt,” she said.

In the Erik Menendez case, the male and female jurors were divided on their first ballot. “We were all in shock” about the gender split, said juror Wendy B. Delahunt, 51.

The deliberations eventually became “nasty and ugly.” One female juror accused the men of being uncomfortable with strong women, and the men referred to the women as “you women,” according to Delahunt.

Deputy district attorney Lester Kuriyama, echoing several experts, said the tensions may have polarized the two camps by gender. Looking at the vote count on both juries, he said female jurors are not necessarily detrimental to the prosecution. “I don’t think you can say we don’t want women on the juries” during the retrials.

Male jurors thought Erik Menendez was gay, which the prosecution had suggested during the trial, and therefore knew how to describe in detail the sex he said his father forced on him, Delahunt said. The male jurors also surmised that Erik Menendez’s father learned of his homosexuality and threatened to cut him off financially, providing a motive for murder.

But Delahunt had her own reasons for wanting leniency. The single mother said she was moved by the apparent support the defendants received from their grandmother, the mother of the man they killed, as well as by the emotional testimony of Lyle Menendez.

Jury experts said jurors, regardless of gender, often have difficulty deciding cases in which murder victims are portrayed as being as immoral as the defendants. Many said they were not surprised by the hung juries in the Menendez case and refused to draw generalizations about gender from them.

Said Lynch: “If you were going to bet money on the outcome of trials based on whether the jury had eight men on it or four men on it, you would lose your shirt.”

Divided Juries

Here is how the jury counts in the Lyle and Erik Menendez cases broke down by gender:

LYLE MENENDEZ JURY

* Killing of Jose Menendez

First-degree murder: 2 women, 1 man

Second-degree murder: 2 women, 1 man

Manslaughter: 3 men, 3 women

* Killing of Kitty Menendez

First-degree murder: 2 women, 1 man

Second-degree murder: 2 women, 1 man

Voluntary manslaughter: 2 women, 3 men

Involuntary manslaughter: 1 woman

ERIK MENENDEZ JURY

* Killing of Jose Menendez:

First-degree murder: 5 men

Second-degree murder: 1 man

Manslaughter: 6 women

* Killing of Kitty Menendez:

First-degree murder: 5 men

Second-degree murder: 1 man, 2 women

Manslaughter: 4 women

BACKGROUND

The six-month Menendez brothers’ trial ended Jan. 28 with both juries deadlocked. Lyle and Erik Menendez--now 26 and 23, respectively--were arrested several months after the 1989 shotgun slayings of their wealthy parents at the family’s Beverly Hills estate. Prosecutors said they killed out of hatred and greed, citing their lavish spending on cars, jewelry and tennis lessons. But the trial was dominated by a bold defense that insisted the brothers killed in fear after years of sexual and mental abuse. Van Nuys Superior Court Judge Stanley M. Weisberg has scheduled a Feb. 28 hearing to set a new trial date. The brothers remain in custody without bail.