"We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding 12 men every day who don’t know anything and can’t read." -Mark Twain

Some good could yet come of the O.J. Simpson trial, though many lawyers and judges are bent on preventing it.

That something is the kind of fundamental reform of our dysfunctional criminal justice system that could be fueled by public outrage at the Simpson trial and acquittal-not to mention the trials of the Menendez brothers, Lorena Bobbitt, the Rodney King cops, and Reginald Denny’s assailants.

Such reform won’t come easily, both because the public may seize upon illusory cures like non unanimous jury verdicts and because the prospect of any reform at all spurs knee-jerk opposition from many lawyers by threatening to unsettle roles in which they have grown prosperous and comfortable.

"What people should understand," such lawyers are wont to say, "is that the Simpson case was entirely atypical, skewed by the ability of a wealthy defendant to pull out all the stops, and by the inability of a wishy-washy judge to move things along. In most cases, the system works well."

It’s true that this was an atypical case. It’s not true that the system usually works well. The problems are simply stated: Our criminal justice system convicts the innocent too often, acquits the guilty (especially the wealthy guilty) far too often, punishes many nonviolent criminals too harshly, rewards tactics aimed at distorting the facts and obfuscating the truth, is choking on waste and inefficiency, and is held by much of the public in justifiable disrepute.

Indeed, it’s not too much of an exaggeration to say, in the words of Professor John Langbein of Yale Law School, that "[o]urs is a criminal-justice system worthy of some banana republic where the rich often act with impunity and the authorities terrorize the peons at will."

Another professor, Albert Alschuler of the University of Chicago Law School, aptly summarizes how this rich defendant-poor defendant dichotomy works in practice:

[T]he Simpson that…shows how readily this system can be used, confused, and abused when skillful lawyers have the resources to press it hard…It shows a system that can survive only because very few litigants have the resources to invoke the procedures that it offers on paper…Ninety-two percent of the defendants convicted of felonies in state courts plead guilty because prosecutors and judges tell them in effect, "You have a right to a jury trial, and we have the right to sentence you to 50 years if you exercise it."

Alschuler, Langbein, and others have proposed a variety of reforms aimed at lopping off the worst features of the system while preserving the best. In this column, I will discuss problems with the criminal jury and proposals for fixing them. In future columns, I’ll focus on other problems with the trial process, including the roles of lawyers and judges.

A case can be made for simply abolishing the jury as we know it. "I have not found juries specially inspired for the discovery of truth," Oliver Wendell Holmes Jr. wrote in 1899. The subsequent 96 years have only reinforced his point. Empirical studies show that many jurors reach virtually unshakable conclusions based on the lawyers’ opening statements, before they have heard a scrap of evidence. And the poisonous spread of race-based voting by jurors threatens to pervert the jury trial beyond redemption.

No other major nation in the world has anything remotely like our jury system. Even England has greatly reduced the jury’s role. Many European nations assign determination of both guilt and sentence to panels of professional and lay judges, using procedures that may protect innocent defendants better than our own. Maybe the rest of the world has something to teach us.

But abolishing the criminal jury, or greatly reducing its role, would probably be a bad idea. That’s because in this country, in the current climate any such change would probably have the effect of aggrandizing the powers of prosecutors and police, which have already expanded alarmingly in recent years, mainly through ill-conceived "reforms" aimed at curbing the discretion of judges in sentencing.

The jury may thus be more vital than ever as a check on prosecutorial power-a power that is especially dangerous in a legal culture in which many prosecutors seem bent more on winning convictions and heavy sentences than on making sure that the defendants are, in fact, guilty and deserving of such severe punishment.

For the same reason, voters should reject the current push by prosecutors and politicians in California to scrap the traditional requirement of unanimity and allow juries in noncapital cases to convict or acquit by votes of 11-1 or 10-2.

Such a change would surely make it easier to convict the guilty, and may become necessary if the trend toward race-based jury nullification continues. But the price would be high. The requirement of unanimity, like mat of proof beyond a reasonable doubt, is an essential check on prosecutorial power to persecute innocent people. Without this requirement, jury verdicts would often be based on quick votes and half-baked first impressions, with no real deliberation or opportunity for the one or two dissenters to persuade the majority to reconsider.

The more promising proposals for reforming the criminal jury focus on overhauling the jury selection process and helping jurors do their jobs better.

Jury selection in this country-especially in highly publicized trials like that of Simpson, with its ridiculous 75-page questionnaire, interminable voir dire, and high-priced consultants coaching the lawyers on how to use their 20 peremptory challenges to stack the jury-often degenerates into a search for ignoramuses with prescribed sets of biases.

Prospective jurors who have a passing familiarity with newspapers are removed for cause, for knowing too much. Then come the peremptory challenges. Any lawyer who can see that his case is weak will strike those prospective jurors who appear intelligent and impartial enough to see the same. Other peremptories will be exercised on the basis of group stereotypes-a process demeaning, and frequently infuriating, to the citizens who are drafted to give their time.

The result will often be a group of jurors who are "chosen precisely because of their lack of intellectual resilience," in the words of H.L. Mencken, and are substantially less educated and intelligent than any 12 people selected randomly from the telephone book. It was no accident that not one college graduate sat on the Simpson jury.

One way to improve this process would be to junk the common presumption that jurors must be unexposed to pretrial publicity and totally ignorant of the case. The better rule is that only people who have been exposed to important inadmissible evidence, or who appear unwilling to set aside their preconceptions, should Be disqualified.

The reform most widely advocated in recent years by scholars and other commentators is to abolish peremptory challenges, and to seat the first 12 eligible jurors with minimal voir dire. This would move in the right direction, but a bit too far.

The worst features of the peremptory challenge could be excised, and the best preserved, by reducing the number to three per side in all cases. That would allow lawyers to remove any jurors who seem obviously predisposed against their clients, without creating much of an opportunity to purge everyone who looks too smart or fits some group stereotype. It would probably put the jury consultants out of business. (And if it didn’t, another reform-requiring that jury consultants’ reports be made available to both sides-would probably finish the job.)

Other reforms-many of which were adopted by Arizona after a careful study and are to take effect Dec. 1-focus on ways to help jurors do their jobs better by making trials less mystifying and more engaging.

To help jurors understand what they are supposed to decide, they should be given clear, plain English instructions on key legal issues before they hear the relevant evidence. They should also be equipped with copies of those instructions, and of key documents like the indictment, long before they retire for deliberations. And in complex trials, lawyers should be allowed to give minisummations at appropriate points along the way to focus attention on what’s most relevant.

Jurors would also be stimulated to pay more attention and focus on the issues throughout the trial if they were encouraged to take notes, and to submit questions that they would like for the judge-who could screen out or reformulate improper queries- to put to the witnesses.

The best jury reforms in the world, however, cannot solve die biggest problem with the criminal jury trial. That problem (to which I’ll return in a week or two) is that our legal culture and our trial procedures often seem almost perversely calculated to subvert the search for truth.