The doltish dozen

''I REMEMBER one of those sorrowful farces, in Virginia, which we call a jury trial," wrote Mark Twain in his 1871 travelogue ''Roughing It." A ''noted desperado" had brutally killed a man, and the local papers were full of the news. But everyone who had heard of the killing, much less discussed it, was kept off the jury for fear he might be biased. As a result, the jury comprised ''two desperadoes, two low beerhouse politicians, three barkeepers, two ranchmen who could not read, and three dull, stupid, human donkeys. It actually came out afterward that one of these latter thought that incest and arson were the same thing." The verdict was not guilty.

''The jury system," Twain concluded, ''puts a ban on intelligence and honesty, and a premium upon ignorance, stupidity, and perjury."

This past week, as the trial of former Enron chief executives Kenneth Lay and Jeffrey Skilling opened, the first skirmish was over the jury. Defense lawyers wanted the proceedings moved out of Houston, the collapsed energy giant's hometown, claiming that feelings there ran too high for an appropriately impartial jury to be found. Judge Simeon T. Lake III disagreed, and proceeded, to the wonderment of legal observers, to impanel his jury in a single day.

While news accounts have mentioned how well-educated the resulting jury is, less has been made-presumably because it is less notable-of how little the jurors had managed to learn about one of the biggest news events in the recent history of their city. One told the judge he didn't know anything about the case against the company, another confessed that she was generally unaware of current events. ''I'm a turtle person," she said.

To a few experts on juries, such statements are troubling. That juries are full of turtle people, they argue, suggests that, 135 years after Twain's bitter diagnosis, lawyers and judges still confuse an ignorant jury with an impartial one.

''It seems to me at times that we've gone too far," says Jeffrey Abramson, a leading jury specialist and professor of law and politics at Brandeis University, ''so that the only possible impartial juror is someone who has so incredibly dropped out of his own time and space that he hasn't heard of the Enron or Rodney King cases." As he puts it in his book ''We, the Jury" (1994), modern law has posed ''a false opposition between well-informed jurors and fair-minded jurors."

According to Abramson and others, whether or not the widespread belief that blank slates make the best jurors distorts the judicial process-and there's plenty of debate as to whether it does-it has little to do with what our Founding Fathers envisioned when they guaranteed American citizens the right to a trial by jury.

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When juries first appeared, in 13th-century England, they were meant not to be judges of fact but witnesses, called by the presiding royal official for information about a crime or the parties involved. A few centuries later, in the American Colonies, the idea that jurors were chosen in part for their knowledge of the accused took on a new importance. Judges, after all, had been sent over from England by the king, while jurors were fellow Colonists, presumably closer in outlook to the people on trial and therefore better able to understand the context of their actions.

As Abramson puts it, the Founding Fathers believed that a trial by one's peers meant a trial by one's neighbors. ''They assumed local juries would know something about the reputation of the parties, know something about the facts, know something, for example, about the intersection where an accident occurred."

This knowledge wasn't considered prejudicial, but valuable. Until the mid-19th century juries possessed far more power than they do today-they decided matters of law as well as matters of fact and could flatly nullify laws they determined unjust. To many Constitutional delegates, the idea that the new federal government might possess the power to try someone outside his ''vicinage" (roughly, his neighborhood) was a form of tyranny.

Since then, this logic has been turned on its head. As Twain makes clear, the shift was already well on its way in the late 1800s. It was fed in part by urbanization, which dissolved old ideas of community, and in part by the growth of the mass media, which increased the range of pretrial publicity. For Abramson, though, the greatest factor was that the jury's symbolic value faded over time. Juries had been the Colonists' most direct form of self-rule, but after independence, the creation of a whole apparatus of democratic self-government lessened the jury's relative importance.

At the same time, the practice of law became increasingly professionalized, and lawyers and judges, Abramson says, ''began to demand that the jury be more of a judicial institution than a political institution. That necessarily meant that jurors couldn't themselves be witnesses who were saying, 'I know this guy, he wouldn't lie in court."'

Few would condemn all of these trends. But Abramson is not alone in finding their results occasionally absurd. Valerie Hans, a psychologist, Cornell Law School professor, and coauthor of the 1986 book ''Judging the Jury," believes our current concern with bias has grown into something that's ''really at odds with common sense."

''There's this bizarre notion now of impartiality, that one can't learn anything about an event and still be impartial," she says.

Abramson himself goes further, suggesting that such concern undermines the very idea of a jury as deliberative body. ''Everyone has preconceptions," he says. ''I have preconceptions, but I'm capable of entering into a dialogue with someone else where I have my preconception challenged." That dialogue, he asserts, is what jury deliberations are all about.

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Abramson's arguments draw not only on his reading of American legal history, but on his own courtroom experience as a Massachusetts prosecutor. ''The overwhelming majority of jurors," as he sees it, ''do an incredibly good job of doing exactly what they're asked to do." However, other legal scholars and behavioral scientists charge that his faith in the rational juror is just that-primarily a faith. They emphasize that human beings are remarkably bad at noticing, much less correcting, their own biases.

Steven Penrod, for example, a lawyer and professor of psychology at the John Jay College of Criminal Justice, has performed studies in which mock jurors are shown news reports of trials, edited to skew the coverage either toward the defendant or the prosecution, then footage of the trial itself. How the mock jurors ruled correlated strongly with the slant of the coverage they had been shown.

This makes perfect sense, Penrod argues. When reading an article or watching a TV news segment, ''It's almost preposterous to think that someone isn't going to take away some sort of impression, if not about the parties then about the underlying fact pattern." That needn't necessarily mean rejecting from jury duty anyone who reads the newspaper; the point is just that bias is subtle and unconscious. (It's this idea, of course, that high-priced jury consultants like those retained by the Enron defendants rely on for their robust business.)

Nancy Gertner of the Massachusetts federal district court, a judge with a reputation for devoting more time and energy to jury selection than most federal judges, echoes Penrod's point. She recalls a detail from her first case as a young defense attorney, the 1975 trial of the anti-Vietnam activist Susan Saxe for her role in a bank robbery and the killing of a Boston police officer. In a pretrial survey of attitudes among potential jurors, Gertner says, ''90 percent had heard of [Saxe], 70 percent thought they could nevertheless be fair and impartial, and 75 percent of those thought she was guilty."

Drake Bennett is the staff writer for Ideas. E-mail drbennett@globe.com.