PERSPECTIVE ON THE SIMPSON TRIAL : Juror Misconduct Isn’t a License to Fish : What Jeanette Harris claims isn’t highly unusual; investigating jurors during a trial is--or should be.

Simpson trial juror Jeanette Harris has opened a window into the so-called deliberative process and the view is not pretty.

Harris was dismissed from the jury Wednesday after the court found that she had not disclosed a domestic-violence incident in her past. She then did a long television interview in which she suggested that some of the jurors had formed judgments about Simpson’s guilt or innocence and discussed their opinions of the case, and that serious racial divisions exist.

Many commentators professed to be shocked. Experienced trial lawyers, however, were not surprised.

Long ago, I learned that serious jury misconduct is often a part of high-profile cases. The only variables are whether it is discovered and whether it is severe enough to cause a mistrial.

In the early 1980s, I was defense counsel in a multi-defendant death-penalty trial that took about 14 months. It resulted in some convictions for lesser crimes, which the judge set aside because of rampant jury misconduct: jurors making biased comments about my client’s national origin, frequent predeliberation discussions of the defendants’ guilt and improper communication of outside information about their alleged status as members of the Mafia. When the case was tried again, which took another eight months, the verdict was again set aside because of serious juror misconduct.

Cases from across the country show jurors involved in misconduct: expressing opinions about guilt, discussing the case with court bailiffs (who told the jurors to convict) and friends and families. The litany of wrongful conduct also has included sexual harassment of other jurors, excessive drinking and the use of cocaine and other drugs while serving on a jury. No one would argue that these types of serious misconduct are acceptable.

However, many who are complaining, justifiably, about some of what Jeanette Harris said seem to forget that jurors are human beings who, by virtue of being chosen for a jury, are representative of the rest of society.

People form opinions as they observe events. It is unrealistic to think that jurors will not form opinions about guilt or innocence because the court told them not to do so. It is impossible to believe that jurors will not discuss a case among themselves, despite Herculean efforts not to do this.

If some of what Harris has revealed turns out to be true, and either the state or the defendant cannot receive a fair trial, Judge Lance A. Ito will have no choice but to declare a mistrial. Her allegations that the law-enforcement personnel guarding the jury are feeding the flames of racial divisiveness are indeed disturbing and must be looked into.

What is even more troubling than Harris’ revelations about the jury process may be the question of how and why this type of insider information about jurors continues to surface and generate new investigations. Simply because the jurors signed on to an extraordinarily high-profile case and are sequestered does not mean that they have abandoned all claims of privacy. Juror Tracy Kennedy, who was dismissed last month, had his room searched and his computer files and personal papers examined.

Granted, the judge and the sheriff’s department must investigate serious and credible evidence of juror misconduct. However, just because citizens chosen to serve on a jury are sequestered does not mean that the judge or the sheriff’s deputies should be permitted to search the jurors’ rooms and belongings, looking for evidence that someone may be an unfit juror.

It has been reported that the district attorney, not the defense, wanted to have Harris removed. Her statements that she believes O.J. Simpson is not guilty and that the prosecutors are spinning their wheels demonstrated that the prosecution’s doubts about her and other jurors may be justified.

However, a disturbing problem remains: No sitting jury in any case has ever been subjected to this kind of investigative scrutiny during the trial. There is something inappropriate in investigating jurors’ lives in an attempt to remove them from the panel. Certainly, new information must be looked into. Yet the extraordinary and unprecedented pattern of juror investigation in the Simpson trial raises a disturbing question: Are the prosecution and its allies in law enforcement encouraging these investigations in an attempt to disqualify jurors who appear to be unsympathetic to their case? We should all hope not. Juror investigations must not be used as a subterfuge to conduct a non-statutory jury selection process during a trial.

While we should expect extraordinary effort and common sense on the part of jurors, experience demonstrates that they cannot be perfect. Perhaps our jury system was never designed to deal with a case such as the O.J. Simpson prosecution. While the system, like the jury, is flawed, it is the fairest and most efficient means of judging an accused person. By and large, regardless of all of the problems, juries generally do well and do justice.