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Common sense survives in our jury system

Stupid prosecutor's trick of the month _ and the competition is fierce for this one _ goes to the assistant state attorney in the 2 Live Crew case who said one of the jurors, a 76-year-old retired professor, was trouble from Day One. "She was a sociologist, and I don't like sociologists," Pedro Dijols said. "They try to reason things out too much."

Now there's an indictment if I ever heard one. You let people go reasoning things out, next thing you know they'll be using logic. And before you know it the place will be overrun with common sense and then where will we be?

In the jury room, that's where.

I confess: Like everyone else, I thought the Mapplethorpe jury was going to convict, and that the 2 Live Crew panel would do the same.

Which only goes to show that I had forgotten the blessed jury system, the only thing in America that still sometimes works.

"I wouldn't want my case decided by 12 people too stupid to get out of jury duty," lawyers sometimes say, cracking wise, underestimating their most important audience.

Defense attorneys in the Mapplethorpe case were dismayed that the jury pool consisted largely of people who had no interest in museum-going. The prosecutor was so arrogant in his apparent belief that saying they were dirty pictures made it so that his only real witness was a censorship maven who had written some tunes for Captain Kangaroo.

In Fort Lauderdale, things were little better. The lawyers for 2 Live Crew flavored their case with suggestions that unless you were young, black and male, you might never understand what the group was trying to do in its music.

The prosecutors presented a performance tape of the band so badly recorded that it could have been Michael Jackson, The Mikado, or a transmission from the Times Square subway station.

And then along came the saving graces. A group of strangers come together as a jury, and for some reason that probably has to do with a distillation of civic responsibility, self-importance and the kind of dedication you can bring to putting together a really difficult jigsaw puzzle in a summer house on a rainy Sunday, they take their mission seriously.

Given what lawyers and judges hand them _ and that's a big given _ they try to do the right thing.

In Fort Lauderdale, the jury foreman was philosophical about the fact that the jurors were less bigoted than the leader of 2 Live Crew, who had written them off as too white, too straight, too old.

"He stereotyped us, just as certain people were stereotyping him because of his performance," said the foreman, elevating good sense to an art form.

And in Ohio, a warehouse manager on the Mapplethorpe jury said: "It's like Picasso. Picasso, from what everybody tells me, was an artist. It's not my cup of tea, I don't understand it, but if people say it's art then I have to go along with it."

People have used that quote to attack the jurors, but I see it as a commentary on our obscenity standards, which are as murky as the bottom of a kid's fish tank. What the juror was saying is what I say every time I see a Wagnerian opera: Sometimes artistic merit is hard for the layman to fathom. Or, in plain language, there's no accounting for taste.

They sat and they listened to discussions of composition and parody and prurient interest. Then they went into a little room and looked at the prosecution case, the defense case, the judge's charge and the law, and they went to work.

In a country where making a tough decision has receded into the distant mists of our historical past, that is no small accomplishment.

"You take away one freedom," one of the 2 Live Crew jurors reportedly said during deliberations, "and pretty soon they're all gone." Put that on a button and I'll wear it.

New York Times News Service