In publishing, as in the rest of life, timing is pretty much everything.  Because Wall Street Journal law editor Stephen Adler saw his book published at  the time of jury selection in the O. J. Simpson case, Adler managed to get a  good deal of helpful publicity for The Jury by appearing on various television  programs for quick interviews as a jury expert.

Political science Professor Jeffrey Abramson's more scholarly, in-depth work  We, the Jury, was published a wee bit later and, as a result, he so far has  missed out on his 15 minutes of fame.  Fortunately for Abramson, however, the  century's most celebrated criminal trial is likely to drag on long enough for  the good professor (and just about anyone else who has ever seen a "Perry Mason" episode) to join the ranks of the talking heads.

 While there is some overlap in the material in these books, the two authors  have different objectives.  Lawyer-turned-journalist Adler argues that the jury  system is "clearly broken," and he offers mostly modest suggestions for fixing  it.  Lawyer-turned-political-scientist Abramson is more interested in looking at  different understandings of the jury's role in a democracy, and he is  particularly interested in the role of the criminal jury.

When Adler and Abramson do examine the same issues, such as pretrial  publicity or jury nullification, it is Abramson who provides the fuller, more  historically informed analysis.  For example, while both authors criticize the  widespread practice of excusing from jury service anyone who has gained some  knowledge of a particular case press reports, Abramson discusses the tension  between the ideals of local justice and impartial justice, showing how the issue  was joined in the Federalist/Anti-Federalist debate regarding local juries in  the 1700s.  Covering the period from the 1807 treason trial of Aaron Burr to the  1989 trial of Oliver North Jr., Abramson explains what he calls the decline of  the local jury and the rise of the impartial justice ideal.

Adler's interests are more pragmatic.  He points out that most democratic  societies do not even employ juries, and that juries in Britain today decide  only 1 percent of the civil trials and 5 percent of the criminal trials.  But, Adler argues, the United States should not go the way of Britain, because juries  provide powerful checks on the power of government and lend moral authority in  the verdicts resulting from the judicial process.

Through a series of colorful vignettes, Adler shows us a jury system in  disrepair, one where intelligent, informed citizens are peremptorily excluded  from participating as jurors and where the remaining jurors sealed are often  lost at sea, unable to cope intelligently with the issues at hand.

The author has recreated jury trials, including deliberations, through  interviews with participating attorneys and jurors.

For example, in the 1990 trial in federal court in New York of Imelda Marcos,  the former first lady of the Philippines, Adler shows us busy, well-educated  citizens beating a path to the clerk's office to be excused from jury service on  hardship grounds.  This is followed by defense lawyer Gerry Spencer using his  peremptory challenges to exclude most of the remaining potential jurors who  would have been well-equipped to follow the complex financial transactions at  issue.  The result, according to Adler, was an acquittal that flew in the face  of overwhelming evidence of Mrs. Marcos' guilt, a verdict "driven by ignorance  and misplaced sympathy."

Adler's most compelling example of juror inadequacy comes in his description  of the cigarette antitrust case of Liggett & Myers v. Brown & Williamson. The  author paints a moving portrait of a small-town jury without any higher  education earnestly straggling to apply the judge's jury instructions, but  unable to understand such basic concepts as market power, and getting no help  from the court in making sense of the economic issues central to the trial.  On  appeal, the U.S. Supreme Court reversed the jury's verdict against Brown &  Williamson, holding that a reasonable jury could not have found that the  company's actions had been unlawful.

But it is not only in financially or economically complex civil cases that  juries fall down, according to Adler.  In a chapter entitled, "Love and Death in  New Jersey," he examines a love-triangle murder case where a police officer is  accused of murdering his estranged wife's lover.  Adler notes:

This is the kind of case in which juries are supposed to excel.  There's no  legal gobbledygook to parse, no complicated finances to follow, and little  apparent room for prejudice to squeeze out reason.  Here the common sense of the  common man, the jury's most treasured asset, can take over.  And jurors do bring  a lifetime of experience to judging whether other people's words square with  their deeds.  . . .  Collectively twelve jurors would seem likely to have a  great deal more of [common sense] than any single judge, no matter how  well-versed in law or experienced in life.

Nevertheless, faced with contradictory testimony from the wife and husband in  the New Jersey case, the jury, Adler concludes, ignored strong evidence of the  husband's guilt.  It did so, he says, largely because the husband was physically  attractive, while his estranged wife was not and had something of a checkered  past. In this connection, Adler cites studies concluding that better-looking  defendants are treated more leniently by juries.  (O. J. watchers, take note.)  Adler also asserts that untrained observers are actually often poor at  determining whether a witness is lying or telling the truth. The last point is somewhat startling, because if we believe that juries are  poor at discerning the truth, it would follow that we should seriously consider  diminishing our reliance on them.  Juries are, after all, costly and  time-consuming.  Instead, Adler suggests that jurors be read instructions  containing "a late-twentieth century understanding of how the senses can  deceive."

This illustrates a large problem with the book.  Through his description of  events and a sprinkling of statistics, Adler makes a fairly convincing case that  them is a problem with jury performance.  But his suggested solutions or  prescriptions are, well, thin. He does not, for example, adequately develop his suggestion for instructing  jurors on social-science studies regarding untruthful witnesses or memory  performance under stress.  Adler similarly fails to explore the problems that  may arise by relying on frequently conflicting social-science studies.  He also  underplays the ramifications of instructing jurors that their normal perceptions  are often in error.

For a system that Adler feels is failing badly, his sketchily drawn solutions -- give jurors instructions in plain English at the beginning as well as at the  end of the trial, let them take notes and have access to more information --  seem rather modest.  Yet his suggestion to abolish peremptory challenges fares  better.  Taking such a bold step, he argues, would enhance confidence in the  jury system and allow more citizens to participate in democracy.  He contends  that doing so also would eviscerate (in his colloquial style, "have a  Kryptonite-like effect on") the power of professional statistics-employing jury  consultants, whom he calls "the new supermen of the legal world."

Abramson, by contrast, actually doubts that professional jury selectors are  super anything, except perhaps super salesmen.  And, in an example of the  thorough research that characterizes his book, the author makes the case that  fundamentally weak evidence, not scientific jury selection, led to a hung jury  in a famous trial in the early 1970s that was hailed as a triumph for the new  methodology.

Nevertheless, Abramson decries scientific jury selection because "[more] than  any other idea over the last generation, it captured the basic shift in our  conception of the jury -- from a group that would find common ground above  individual differences to a group that divides, almost predictably, along the  fissures of identity in America." For reasons like these, he agrees with Adler  that the peremptory challenge is unacceptably anti-democratic. Abramson effectively traces the historical development of the ideal that  juries, like other American institutions, should reflect a cross-section of  society.  Yet the author notes anxiety on the part of the Supreme Court that the  cross-sectional ideal "[blends] into arguments for affirmative representation on  the actual jury . . . [ushering] into [jury] selection all the attention to  numerical balancing that characterizes American law on discrimination  elsewhere."

This concern notwithstanding, now that the Supreme Court has taken the first  step of prohibiting race and sex as grounds for peremptory challenges, it has  little logical choice, says Abramson, but to ban all uses of peremptory  challenges that exclude specific groups.  The cross-sectional ideal can work,  Abramson argues, if jurors understand their role not as representing their  specific groups' biases but as engaging in a deliberation aimed at achieving  impartial justice. Abramson's desire to limit peremptory challenges further flows from  representational concerns, not the concern that competent jurors can be  peremptorily dismissed because of the very fact that they are competent and thus  able to perceive the weaknesses in a lawyer's case.  Abramson acknowledges that  juries do not always live up to our hopes but -- unlike Adler -- the former  assistant district attorney professes a basic confidence in the ability of  juries, as presently constituted, to do their job well.  Indeed, because he  believes in the virtue of jurors, Abramson would have judges expressly inform  jurors that they have the power to nullify criminal laws that offend their  conscience and acquit defendants.

As Abramson well knows -- his history of jury nullification, from William  Penn to Marion Batty Jr. to Dr. Jack Kevorkian, is nothing less than fascinating -- jury nullification has allowed persons of conscience to acquit defendants  charged under immoral laws, but it has also been used for less noble ends.  Abramson argues that the underground practice of nullification should be made  open and legitimate, but one wonders about the effects of inviting jurors to  nullify a judge's statement of the law.

Partly as a result of his confidence in jurors and partly out of his desire  to encourage the majority of jurors hearing a given case to listen to the views  of any dissenting jurors, Abramson opposes reform aimed at permitting juries to  decide cases by super-majority votes.  (Federal criminal jury verdicts must be  unanimous, while Louisiana and Oregon are the only states that authorize  non-unanimous verdicts in felony cases.  Federal civil verdicts must be  unanimous unless the requirement is waived by the parties.) Referring to the  5-percent incidence of hung juries, Abramson writes, "Living with deadlocks in  every twentieth case hardly seems too ; high a price to pay for the hesitancy we  ought to feel in the face of doubts so strongly held."

Adler's book, and press coverage of cases like the Menendez brothers' murder  trial suggest, however, that such doubts frequently result from bias and  ignorance.  As such, they should hardly be rewarded.  If there is one  significant omission in We, the Jury, it is Abramson's failure to provide some  support for his fundamental confidence in the ability of jurors to decide cases  fairly and intelligently.  And, although it is beyond the scope of We, the Jury, I would have welcomed  Abramson's thoughtful, historical treatment of the subject of tort reform -- the  effort under way to cabin juries' discretion to award damages in civil cases.  For a hoary institution, the jury is still capable of exciting much heated  debate.  Abramson and Adler show us why.