Perhaps potential jurors could instead be asked to reply anonymously in writing to prosecutors' and defense attorneys' questions, without being seen by either?
7
I think I just became unable to serve on a jury if the suggestions by the author are adopted. But judging applicants to college by race is a good idea? Not really.
3
I would love to see the two suggestions put into practice. It is almost impossible to make an informed decision when voting to judge retention; knowing if a given judge has a history of racial bias in jury selection would be a useful piece of information to consider. Likewise peremptory challenges seem too often to be based on biased assumptions. Reform is clearly needed here!
Just eliminate the "peremptory" challenge completely. Only allow challenge for cause. Problem solved.
6
I'd be interested to know how or if such tendencies change or remain the same when the defendant is white and depending on the crime charge, I.e., a violent or property crime vs a so-called white collar crime like embezzlement or securities fraud.
2
Jury selection can be made race blind by using the techniques developed for orchestra selection
1
It is time for payed professional jurors. Instead of forcing every one to jury duty there are people who like to sentence their fellow Americans the GOP type so I am for letting those people daily handle the cases. We are just a racist thanks to the GOP in the country in every thing politics the worst it is sad our democracy got his way.
I worked for several years as a defense investigator in death penalty habeas corpus proceedings in Texas. Racism infected every aspect of each case I saw. In one instance, the case of Delma Banks, prosecutors coded voir dire lists, using "B," "N," or "C" on different lists as shorthand for race. We found that during a fifteen-year period over 90% of the potential jurors of color were struck by prosecutors using peremptory challenges. On the first day of Banks' state evidentiary hearing on claims of jury discrimination, the courtroom was packed with members of the county's African American community. On the next day, state troopers with dogs, automatic weapons, and truncheons stood guard outside the courtroom for "security."
Jury selection is only one aspect of a complex legal process that is infected at every level with racism. While I do not agree with the remedies offered by this article, the hair-splitting comments that attempt to isolate the statistical disparities in jury selection are missing the point, perhaps willfully.
https://deathpenaltyinfo.org/node/809
34
Our justice system should not be criminal. By that I mean, let us not lower the bar on every so-called crime as crime, for instance, take the case of traffic light. If some one gets a speeding or a stop light ticket in california, the total tab almost comes to grand ($1000+). If the defendant cannot pay that, many of them are poor living paycheck to paycheck, then a warrant is issued and it becomes criminal. In many cases, the courts are miles away and there is no transport to go to the court for some people. So what the criminal justice system has done is listed every mundane task a minority does as criminal and courts treat them like that. Well a african american if he is charged holding up a bank and spends years and years in prison; while on the other hand a Bernie Madoff or some other guy with a suit and tie defrauds a bank of millions, he or she gets probation or a sentence in some country-club federal prison system.
1
Here is another simple solution. Have all juror questions answered by text, without the jurors being physically present until after the jury is seated. Even better would be to limit them to yes or no questions.
This would do what blind auditions did for orchestra auditions, remove the chance of appearance bias from the process.
6
Anyone who has ever sat through a jury selection process knows, race aside, it is an astonishingly fixed game. Woe to the defendant who cannot afford a good attorney.
6
Interesting analysis!! But, remember, this is North Carolina — still a leading racist state, and had only gotten worse since GOP captured the Legislature and organized the worst gerrymandering in the country.
So, data and realistic conclusions notwithstanding, it is hard to see NC moving to
change or correct matters anytime soon.
Still, Common Cause and efforts here to combat gerrymandering may help, however. This group is really working hard on overcoming this travesty of democracy in NC.
Trying to prevent trial lawyers from using peremptory challenges to remove persons he believes may not favor his client because of presumed racial, etc. bias is like trying to train dogs to be vegans. There is going to be 100% recidivism.
The question is why the legislatures and/or courts have not taken the oft suggested remedy of abolishing peremptory challenges.
In my opinion peremptory challenges have not been abolished is because every trial judge and trial attorney worth his/her salt knows that every panel of prospective jurors contains one or more immediately recognizable nut case(s) whose vote in jury deliberations would not in any way be influenced by the law or the facts. They are loose canons. An attorney can have no idea which way they will vote in the jury room. Therefore the attorney will challenge him/her off the panel before using challenges to remove rational persons who he/she suspects may not favor his client.
If there were no peremptory challenges or challenges for cause and the juries were randomly selected there would be many, many more juries hung by nut cases.
No judge wants to be given the power to eliminate a citizen from jury service by deciding the citizen is incapable of rational thought.
So the courts limit the number of challenges hoping the attorneys will use their limited challenges to remove the nut cases and not have enough challenges to remove rational persons of the "wrong" race, gender, ethnicity, economic or social class.
So what is new?
2
What is justice, and why do we expect juries to deliver it? Our legal system does not focus on determining objective truth, as science would. It struggles with an often disfunctional adversarial system, artificial constraints on what knowledge (data) jurors are allowed to hear, and more focused on manipulating the process than adapting to something more objective.
And juries, made of people, are by definition flawed. Subject to biases, rhetoric, and deeply flawed and emotional reasoning, juries at best might stumble onto the right answer.
Maybe juries are just our selfish way of claiming definition of justice.
1
One question is routinely asked of potential jurors: "Have you or some member of your family been involved with the criminal justice system?" Guess which group will disproportionately answer in the affirmative. I understand the authors of this study couldn't get the data on what proportion of potential Black jurors were excluded for this. But they should have at least indicated that this is a potentially significant and very meaningful reason for juror removal.
4
And that is the definition of a vicious cycle.
1
Silly article. Judges cannot allow the peremptory challenge unless a non-racial reason is stated and found credible by the court. Pretty good protection against racism
3
Why let the lawyers choose the jury anyway? Random selection ought to give representative juries and is harder to manipulate.
@Tom
Ask any defense attorney and none would agree to get rid of peremptory challenges.
2
I lived in NC for six years; I had a driver's license, I was a registered voter and I owned property. I'm an African American woman, and I wonder why I was never called for jury duty. NC is the only state that I've lived where my race was on my driver's license. I wonder if that had an impact on my ability to be called for jury duty?
4
I read in the Chicago Tribune a couple of days ago that the city identifies a suspect in only 17% of the murders in the city. The number of trials and convictions is only a small subset of this already pathetic figure. Why is this? It is ascribed to (a) unwillingness to work with the police, (b) fear of retaliation, and (c) sympathy for the criminals.
The purpose of peremptory challenges is to eliminate anyone with bias -- for or against a defendant. This would include people with prior serious involvement with the police, people who had already formed an opinion about the case, and, yes, people who might be inclined toward non fact based leniency or harshness based on nothing but race.
4
This article ignores that the preemptory challenges by the defense and prosecution completely cancel each other out, such that the racial balance of the jury remains roughly the same as the balance of the pool. Also, no conclusions can be drawn from judges’ for cause dismissals without further context. For cause dismissals largely occur due to professed hardship by the juror (eg inability to miss work and lose income) and one would expect that those on the lower socioeconomic rung of the ladder, as African Americans are, get dismissed for cause at a higher rate.
3
The jury I was recently on, there was a Black defendant (surprise!) and only one Black person in the jury pool. For some reason, he did not make the cut.
1
"... that peremptory challenges are indeed a vehicle for veiled racial bias that results in juries less sympathetic to defendants of color."
Juries aren't supposed to be "sympathetic to defendants of color". Therefore, eliminating this inherent bias is precisely what peremptory challenges are supposed to do.
6
I had the impression that juries were a Hebraic tradition going back to biblical times. Am I wrong?
1
My brother, who many years ago interned for the Public Defender's office, is now an accountant. But because of his history, he is always dismissed and never chosen for jury duty
In medical research, we talk about the double-blind randomized controlled design to decrease bias. Perhaps those principles could be applied here. It would be interesting if there was a way for trials to be conducted so no one sees each other directly (judges, a cused, defendent, lawyers, jurors) Facial expressions and gestures could be captured by a neutral computerized figure.
The Justice System needs to be fair, impartial, unbiased, and free of undue influence by any party.
Anytime there is obvious flaws in the System, the reputation of our Justice System suffers.
Imagine, racism. Who says one size can’t fit all.
White men are more likely to be convicted of being serial killers. Is that also proof of racism?
This is what is lacking here. A racial difference is not a racial problem - serial killers actually ARE disproportionately white men. So a higher rate of conviction isn't racism. A mere statistical difference is not proof of racism.
For jury selection, I see a statistical difference - but what I'm not seeing is even a consideration in this article of if there is actually anything illegitimate.
Statistically, more black men have been convicted of serious crimes than white men. And it's not at all illegitimate to think that someone with a criminal background similar to that of the accused might possibly have a bias, and thus would not be a good juror. Statistically, more black people are also victims of crimes - and prosecutors and defense attorneys often remove people who are a victim of a similar crime for the same reason - a possible bias.
This sounds like such a strawman, such a sloppy, deliberate appeal to emotion, pound on the table argument here.
We have so many real problems with real racism, so many cases where white people haven't heard near enough details of DWB, horrible abuses. To bring up something false, something unsupported just diminishes the real, causes a "crying wolf" reaction to real issues.
8
Being in a Democratically controlled state doesn't necessarily help. At my recent stint at jury duty I noticed immediately that for some reason there was not 1 African American among the 100 or so potential jurors. I asked the clerk where they were as I know my county has a good percentage of black and Brazilian immigrants, both legal and otherwise. He cited the use computers to send out the summons and that's just the way it is. I suggest a little research would yield a similar systemic problem based on such obvious things such as mobility, voting habits and interest in returning the annual town census mailing. Hopefully the professor could look into not only the picking of the jury from the pool but picking the pool from the general population.
2
It could be racism. Or it could be the removal of people with an arrest record. The data presented here would be compelling only once this potential source of bias is removed.
3
I was a law school student when O.J. was acquitted. Even though 100% of my fellow students who were black, believed him guilty, they reacted to the acquittal with shouts of joy. The reason - O.J.’s victims were white. I’ll worry about striking black jurors from juries when we start worrying about striking white jurors.
12
The answer is most definitely NOT making anything about the selection process, and hence the jurors, public.
Learn a lesson from orchestras and symphonies, who audition new members without names on the resumes and the musicians behind screens to hide them while they play.
1
"The new rule makes it easier to stop juror removals rooted in implicit racial bias by outlawing peremptory challenges defended with explanations highly correlated with race, like 'prior contact with law enforcement' or 'living in a high-crime neighborhood.' "
Does "committing murder" count?
3
I'm hoping one piece of this opinion piece can be clarified. "Defense attorneys, seemingly in response, remove more of the white jurors (22 percent) than black jurors (10 percent) left in the post-judge-and-prosecutor pool." That makes it seem as though the prosecutor uses all peremptory challenges before the defense attorney uses any of his/hers (and that the defense bar's mirror-image racial bias is less numerically significant than the prosecution's). Is that really the case? In California, the parties take turns with exercising peremptories; sometimes, one side can even pass on using a peremptory and then start again after several peremptories by the other side.
It would just be surprising if that is how the system in North Carolina worked.
Accountability! For judges, prosecutors, the criminal justice system?
Ha, ha, ha.
Good one!
2
If blacks are removed from the jury pool in large numbers it is only because too many of them who do get on a jury engage in jury nullification whenever the defendant is a fellow black. This is regardless the evidence presented. If, and when, that practice dies out then, maybe, trial attorneys won't be seeking every means possible to remove the potential black juror.
8
One simple clue. Everyone touts "jury of peers". That is nonsense on the face of it given the definition of "peers". And in today's PC world, it is a fantasy even if remotely possible. The best is that the juror is selected, -- do you know etc -- have you been in this situation --- done.
@Richard Frauenglass
The assumption is that we are all peers legally. Race, education, wealth, influence, reputation, family connections, religion, etc. are not considered to be relevant. All are presumed to be able to ignore these factors.
Racially biased jury selection is a life and death matter, since we still have the death penalty, after many nations stopped it.
Amnesty International--- Death penalty 2015: Facts and figures, 6 April 2016, --
“In 2015, most executions took place in China, Iran, Pakistan, Saudi Arabia and the USA – in that order.”
(and we have the highest percentage of people in prison.)
"140 countries worldwide-- more than two-thirds-- are abolitionist in law or practice.
In 2015, four countries – Fiji, Madagascar, the Republic of Congo and Suriname – abolished the death penalty for all crimes. In total, 102 countries have done so – a majority of the world’s states.
In 2015, Mongolia also passed a new criminal code abolishing the death penalty which will come into effect later in 2016.
In the US, 30 states still have the death penalty.”
Why is the US behind other civilized countries? It's our racial divide, and letting each state decide its policy. Not exactly in line with our supposed credo of civil rights, or for the constitution's ‘equal protection of the laws’.
When will the US have human rights standards in line with 20th C civilized countries?
Could the next president grapple with this? Can the media?
1
I came to the conclusion that group voir dire was a travesty the first time I was on jury duty. In front of an audience of about two hundred prospective jurors, one panel was asked to raise their hands if they'd been raped. It didn't take Law & Order SVU or Christine Blasy's testimony for me to know that that was a highly intrusive question that many would not feel comfortable answering truthfully. There has to be a better way.
1
Rather than trying to find 12 people who have no racial bias, how about we simply conceal the defendant's race/sex/ethnicity (all irrelevant traits for the purpose of making a decision) from the jury?
The defendant will be present at the trial, but behind a one way mirror in a booth. He/she can be referred to as "the defendant".
This proposal would work particularly well for minorities in mostly white states where the likelihood of having other minorities in the jury pool is virtually imposible.
@Eddie:"Rather than trying to find 12 people who have no racial bias, how about we simply conceal the defendant's race/sex/ethnicity (all irrelevant traits for the purpose of making a decision) from the jury?"
And which side of the court room do you think will complain the loudest? Go ahead, guess.
1
One also needs to consider if the black/white discrepancy is somewhat related to something other than race - such as education.
For example, a prosecutor with a strong case, which most cases which go to court are, will probably want jurors who have a decent understanding of probability and science. Usually their case is based on multiple forms of evidence, any one of which is probably not sufficient to find the defendant guilty "beyond a reasonable doubt" but when taken together are. The less educated a juror is, the less likely they are to think analytically about multiple independent forms of evidence and, at least instinctively, assign a probability of each indicating guilt and get the math right to determine the odds of the collection being sufficient for conviction. As well, sometimes there is scientific evidence (hair, fiber, DNA, etc) which results in expert testimony that is more easily understood correctly when one has some understanding of science.
Since (see Figure 25.3 of https://nces.ed.gov/pubs2016/2016007.pdf) adult blacks are twice as likely than whites not to have completed high school(16% vs 8%), 86% as likely to have a bachelor's degree or higher, etc, this rather than race could account for some of tendency of prosecutors to tend to reject black jurors more than they reject white jurors.
2
I have a nasty confession to offer: If I were on trial, I'd would prefer the verdict of a judge trained in the law and seasoned by years of experience than to place myself at the mercy of twelve people plucked from the record of the Department of Motor Vehicles driving license lists who probably resent being hauled away from their mobile phones for jury duty.
2
@Quiet Waiting
A Defendant can have a bench trial.
I worked for a district attorney and we used to try to get Asians onto the jury, because of their supposed law and order bent and deference to authority. I found such an assumption about a large group of people to be highly offensive, but I was told that this was the way to go.
2
Attorneys also consider judges. Peremptory challenges precede peremptory instruction.
1
That race placing a part in jury selection is never a question unless or until the jury pool has been reduced to a single race. I have worked with attorneys on more than 50 capital murder cases in Alabama for indigent clients. I cannot remember a single case where race was not a major factor in selecting the jury. The prosecution always struck non whites except to avoid a Batson challenge. They normally will select one non white which gives then deniability on Batson. I believe there should be some process whereby the jurors race should not be known to either side during the process. This issue is doubly important when the case is a death penalty case because non whites are less likely to want to impose the death penalty, especially when a non white is the defendant.
We should keep in mind that the justice system itself is biased at the very start against the poor and the people of color who are most likely to be poor. The wealthy have an advantage going in by the mere fact that they can afford better attorneys and more resources to aid in their defense. For all but capital offenses the indigents get an appointed attorney or a public defender that is often overwhelmed by the sheer number of cases. The prosecutor has the resources of the entire state behind them. Though it is supposed to be innocent until proven guilty there a presumption of guilt by the general public upon arrest. The only time this is not true is when a public official, such as a police officer.
It might be that the driving force behind these acts is the ambition of prosecutors (and judges). Prosecutors tend to be evaluated on "wins", rather than fairness, as do defense attorneys. Judges often get kudos for being tough on crime. If blacks appear scarier to the public, putting more of them behind bars makes them feel safer. It does seem like yet another argument for dispelling the idea of "the end justifies the means", as the means are clearly biased and unfair. I don't know what the demographics of the particular regions discussed are, but dismissing 20% of blacks and 10% of whites sounds, numerically, way beyond the idea that twice as many blacks were dismissed. In Anytown USA, where blacks are far fewer than whites, it would seem that the raw number (not the percentages) of blacks (and whites) originally summoned, and their attrition rate, comparitavely, would be a far more illuminating figure. If, say, out of 100 jurors summoned, 30 are black and 70 are white, the percentage figures would be 6 blacks dismissed and 7 whites, which would seem pretty equal, if the original summons was 50/50, but sounds pretty awful, since the ratio is already pretty skewed.
If the aim is to win, and there is no punishment for corrupt means, the prosecutors are doing their job (and the defense attorneys are seemingly only pushing back against an unfair system).
If Justice wears a blindfold, why not both counsels? Not literally of course; we like to judge with our eyes, but that is the problem isn't it?
I agree with Freya Myers that this piece is a hot mess. I have been a defense lawyer for 39 years and I can tell you that most jurors would really resent their personal information being published for any reason. Those willing to serve as jurors need to be protected from the wrath and the irrationality of the mob. I can imagine retaliation from alleged victims families if a not guilty verdict is returned, should their information become public. Furthermore, while I agree that racial bias in jury selection is endemic, part of the problem in my state is that many jurors simply don't show up because they don't want the hassle or the emotional trauma of serving on a criminal trial. Many of these jurors who do not show up are indeed people of color, who have learned to distrust the system. The Batson argument against peremptory challenges is useless. In my years of representing criminal defendants, most of whom are people of color I have had exactly one jury where there was a black person on the jury. He became of the foreman and the not guilty verdict was a righteous verdict.. It's not that all - white juries won't acquit black defendants, I have had it happen; it's just that it's an extra burden on the defense if the jury is all white. I disagree with Sequal that the jury system is a medieval artifact and should be abolished. It's like democracy, it's a terrible system except for all the others.
46
@Linda:"Many of these jurors who do not show up are indeed people of color, who have learned to distrust the system. "
We see the same thing in Wayne County Michigan. Perhaps some of the folks who do not show up also scream "the system is racist!".
And on and on it goes, the liberal guilt perpetual motion machine.
3
@Linda
You have been a defense lawyer for 39 years and have only had one black person sitting on a jury? This is virtually impossible to believe unless there are no blacks in your state. There are many blacks in all East coast states (where you say you reside) so I assume you live in Maine?
2
Why not have peremptory challenges alternate between the prosecution and the defence? That would remove the advantage the prosecution has in getting first dibs on the jury pool, which by itself seems to "whiten" juries.
1
After doing some additional digging, I was able to find the actual study and read the 47 page report. What appears to be questionable is the conclusions that the authors came to. They were exhibiting their own bias and assumed, based on the data, that racism was the motivating factor. Buried in the footnotes were interesting aspects, including data that showed that the retention rates of jurors were statistically the same across racial and gender lines. Included in their bias claim is the Judges preemptive exclusions, which could have been based on the inability of a juror to serve on the jury. Was this number higher in minority groups? The authors do not address this issue. If anyone has appeared for jury duty, they know that a good number of people attempt to get out of jury duty because it is a hardship for job and family.
The other interesting aspect is the bias by defense attorneys is higher than prosecutors. Except that the authors gloss over this fact and claim that this bias is different because they felt defense attorneys were trying to establish balance on the jury to reflect the community. I almost spit out my coffee. No defense attorney is going to impanel a jury for social activist reasons. They want to get the best shot at acquittal that they can for their client.
The efforts of the authors are noteworthy in their efforts, but fall short of their ability to actually make the claims that they have made.
14
The actors' putative psychological states are unknowable and irrelevant. The real-world results are sufficient demonstration that there is a problem and that changes should be made.
@Edward Lindon
No, outcomes, in and of themselves, do not demonstrate bias (or other "psychological states").
1
I was a state trooper for over 26 years, and I have seen racial bias in both directions. Nobody old enough can forget the reaction of the OJ jury, and almost as important, the black law students reacting to the verdict. Perhaps, something like the blind testing done by orchestras and the TV show, The Voice, offer a suggested remedy. Don't reveal the race of the perspective jury during the selection process. We will still be left with an imperfect system, but sometimes baby steps are all we can hope to achieve.
7
Professor Wright's study may have proved that black potential jurors are more likely to be removed than white jurors, but it doesn't establish why or that this result is attributable to "veiled racial bias."
Did Professor Wright make any attempt to exclude the effect of factors that may correlate with race but are themselves be a legitimate basis for challenge?
For example, a juror's arrest record may cause a prosecutor to be concerned about that juror's willingness to convict? It doesn't seem any less legitimate a reason for challenge than my service as a federal law enforcement officer more than 40 years ago, which continues to lead defense counsel to challenge my ability to serve on a jury. But arrest records correlate with race and could be one factor in the results he discusses.
6
I have a simpler solution. The attorneys should be required to interrogate potential jurors who’s physical appearance is hidden and their selection be based on their answers not their appearance. They could be in another location and their answers transmitted electronically.
5
There are too many non-physical markers of race.
As usual this study proves nothing correlation does not indicate causality. Basically an "opinion" fortunately in the opinion section not the news one.
9
Really, this seems like the sort of predetermined outcome sociological study that gives the "soft sciences" a bad name. Were any factors other than race controlled for? With no link-out to the "study", it's hard to tell. All we are left with is a set of sweeping assertions and a posited remedy whose efficacy and possible downsides remain largely unexamined. One expects more of a paper that, in time past, would have tossed a half-baked legal piece like this in the dust bin.
8
Unfortunately, because the prosecutor has the first shot at peremptory challenges, they will always try to weed out jurors who they think statistically will favor the defense. It could be because of race, or because of countless other factors, like gender, age, occupation, style of dress, neighborhood of residence, level of education, etc, always based on a certain level of assumption and prejudice. Any peremptory juror removals by the prosecutor will mean that the defendant is not facing a jury that is truly representative of the population; it will always be skewed in a way the prosecutor wants. That's a bug built into the system that goes beyond just the issue of race. Perhaps it would be fairer if the defense had the first chance to dismiss jurors? Or should the whole peremptory removal process be vastly curtailed, to ensure a wider variety of jurors make it through selection? Maybe jurors should be judged more by their answers to questions and less by their demographic categories. That would be in line with the spirit of the Constitution.
1
@Samuel Russell: "Any peremptory juror removals by the prosecutor will mean that the defendant is not facing a jury that is truly representative of the population; "
That's one or two Black people per 12 person jury.
What if the crime is committed in an all-white neighborhood? What if the crime is committed in an all-Black neighborhood?
1
Early in this article, the author says that peremptory challenges allow prosecutors and defense attorneys "to block a certain number of potential jurors without needing to give the court any reason for the exclusion."
Near the end of the article, the author cites a new rule meant to diminish biased juror removals "by outlawing peremptory challenges defended with explanations highly correlated with race"
These two statements are inconsistent. What am I missing?
4
"Second, excluded parts of the community become more cynical about the justice system when they repeatedly see barriers to jury service." I think this sums up what I feel about America in general. This thought resonates through my own work, poetry, and art in general.
I work in a courtroom and have seen hundreds of juries be picked. It’s not a good idea to have jury selection made available online to the public for the simple reason that potential jurors disclose a lot of personal information about themselves, much of it painful and/or traumatic. If they know it will be publicly available, they’ll be less inclined to be honest, and that doesn’t serve anyone’s interest.
186
@Rls,
I was in the jury pool for a medical malpractice suit involving an outpatient procedure. During the selection process we were asked to raise our hands if we had had an outpatient procedure. I raised my hand. The next question was directed solely at me: "What was the nature of your outpatient procedure?"
Floored that I was asked that question in open court, I replied, "Snip, snip and I'm shooting blanks."
The entire court including the judge exploded in laughter.
19
@Lennerd I don't know whether the judge's question violates the law, but it certainly violates the spirit of HIPAA. Our medical information is supposed to be private.
11
@Rls
Forget even the online portion - jury selection should not even be public to the people in the courtroom! I was on a panel a few years ago, waiting to be called for service (I was not selected) and we were all seated in a courtroom in front of the judge, lawyers, clerks and the defendant. Selected jurors had to explain any past history they've had with crime, the police, anything that might limit their objectivity. A lot of people had really heavy stories, and I could tell because even though these were told in a hushed tone to the judge, it was clearly audible to the hundred other people the room. Stories about being raped. Stories about a mother murdered by a father. Stories about losing sons to gang violence. A litany of tragedy - and no doubt because of the setting, the act of sharing these stories in this forum caused the would-be jurors to become emotional and often cry, which only compounds the distress and embarrassment. A terrible way to (try to) do your civic duty.
Simple solution - ask these questions in the judge's chambers.
22
More publicly available data to gauge success rates and hold prosecutors and judges accountable is certainly a good thing, but to call the disparity in jury selection “racist" seems off base and inflammatory.
The word racist implies discrimination based on race. In the situation described where prosecutors exclude more non-whites and defense attorneys exclude more whites - both based on statistics showing that non-whites are more likely to acquit - the same standard is being applied equally to everyone based on statistics, not race.
Yes, the statistics are based on race, but that doesn’t necessarily make their use in juror removals racist. Mr. Wright uses race based statistics to suggest that removals for prior contact with law enforcement and living in high crime neighborhoods are inherently biased, but using those statistics doesn’t make Mr. Wright a racist.
As for jurors, the only way to guarantee a completely fair selection process would be to keep their race hidden from the prosecution and defense until trial, and instead of voir dire, present them with a list of standardized questions.
5
@Gary Taustine
Indeed, since it's based on statistics, it's not racist any more than it's sexist to charge male drivers more for insurance than females.
Perhaps these prosecutors well remember the OJ Simpson trial when an obviously guilty Simpson was acquitted of a particularly vicious double-murder by an all-black jury. Was racism a factor in that acquittal?
7
@John J.Without addressing the merits of that case, I would assert that, on balance, statistically many more blacks suffer from racist negative verdicts. Neither outcome is acceptable.
The point of using a peremptory challenge is to remove a juror who, counsel believes, might allow extraneous factors to influence her decision.
If the author is correct – that removing Blacks from the pool results in “ juries less sympathetic to defendants of color” – then he’s conceded the point: Black jurors cannot be trusted to pass on the facts and the law; they will interject race into the mix and favor Black defendants.
The author indicts not jury selection, but the very idea of juries. If a jury consisting of 12 Blacks would arrive at a different decision than one composed of 12 whites (pick your PC identity groups; they’re interchangeable), then the system is irretrievable flawed, providing results based not on the facts or the law, but on groupthink and identity.
The necessity for jury composed of “a cross section of the community” compels the conclusion that identity MATTERS, at least as much as, if not more, than do the facts and the law. (incidentally, most people would like nothing more than to be routinely booted off a jury.) If jurors allow identity to color their decisions, they’re unqualified to serve. (Oh: there is no such thing as “implicit racial bias”. )
Put simply, prosecutors considering race are not a problem, but groupthink-obsessed jurors are. Put simply, the composition of the jury should not matter to the ultimate result, and any suggestion that it does militates in favor of abolishing the system entirely.
6
The article touches briefly upon the source of this "problem": That state and local judges are elected officials.
But for a few exceptions, in Swiss cantons and that certain Japanese judges can face "reelection" in a process that is rarely enforced: The USA is the only country where judges are elected rather than appointed and vetted by their peers. See https://www.nytimes.com/2008/05/25/world/americas/25iht-judge.4.13194819.html
That needs correction. That correction will not happen; too many powerful people who are benefits of today's system will fight any change.
If judges and prosecutors did not have to worry about reelection but only the support of their peers, I suspect the system would be far less racist.
1
I have been a practicing defense lawyer in D.C. for over 30 years, and I don't understand what the author means when he says that the prosecution exercises all of its peremptories before the defense gets to exercise any. Perhaps that is the system in North Carolina, but it most certainly is not in D.C. or in any of the federal courts in which I have appeared.
In local court in D.C. each side gets ten strikes. During each of the ten rounds, the govt strikes one juror, and then the defense strikes one. Those two potential jurors are then excused, and the next two on the list are seated in their place. The parties alternate like that until each side has exercised all ten strikes, or until both sides pass in a round -- whichever comes first.
In most of the federal trials I have been involved in, a technique known as the "Arizona system". That system requires both sides to write all their strikes on a piece of paper and turn them into the court. Then all the stricken jurors are excised at the same time.
I have never been in a case where the parties got 15 strikes. The factual errors in the article make me question the quality of the research -- while not at all questioning the pervasive racism in the system. And, contrary to the writer's suggestion, a system in which the govt made all its strikes before the defense made any would be an advantage to the defendant, who would then not waste any strikes on someone who would be rejected by the govt.
12
The suggestion that transparency--publicizing statistics--would empower voters to enforce equality in the justice system is simply laughable. Incumbent judges and prosecutors almost always run unopposed, and only the most diligent voters have time to research the minutia of their records. Abolishing peremptory challenges altogether, and questioning jurors in writing without prosecutors actually seeing them or knowing their names (to ensure race-blindness) is a better approach.
1
In the aggregate, citizen juries give us, as citizens, a voice in the development of law. That voice comes at a cost to justice, particularly if one party or both manipulate jury selection to achieve a particular outcome.
As citizens, we embrace the law because (and only because) we feel we will be treated fairly under it. Biases undermine that faith.
It is particularly pernicious when that bias is created by a state actor, in this case the prosecutor.
Having lived in several southern states, I don't suppose I find Professor Wright's findings unusual, although I might disagree with his assessment that his findings are mirrored in many other states.
I just finished doing a three-week stint as a juror in Mercer County Superior Court in New Jersey. This county is 50% white, 20% African-American, 18% Hispanic and 12% Asian (all approximate). About 500 people were called for jury duty on the day I was called. My guess is only about 200 people showed up and that group skewed more heavily white. We were called randomly (chosen by computer by juror number), questioned, eliminated by the judge in some cases and then alternately accepted or dismissed by the prosecutor and defense attorney. More than 100 people were dismissed for hardship. The judge dismissed some during voir dire, although I do not know why. The final jury of 14 (12 plus two alternates) was made up of 8 whites, four African-Americans, one Hispanic, and one person of Indian heritage. Those numbers are actually close to the county's racial makeup except for only one Hispanic.
Since we were chosen randomly by juror number, there could be no bias there. I can't speak to the hardship or voir dire dismissals. All jurors dismissed by the attorneys were white. Was this an outlier case in comparison to Wright's studies? I don't know. I'd like to think, though, that the system actually worked.
2
Just get rid of peremptory challenges. The UK did it in the 80's because of this problem of skewed juries based on race and Canada is about to do the same, again because of the same problem.
3
@Janet
In the US, a criminal conviction requires a unanimous jury. In the UK, doesn't a criminal conviction require only a 10-2 vote? If so, the need for peremptory challenges is quite a bit greater in the US as just one nut can hang a jury resulting in costly retrials.
2
"First, the defendant is not judged by a jury that reflects a cross-section of his or her community.."
My community is Polish-Catholic and super conservative. Not my crowd at all..
1
The prosecutor wants a conviction; the defense attorney wants an acquittal. Both try to stack the jury to the best of their ability (one hopes). Considering what's at stake, the hurt feelings of prospective jurors is chump change.
4
I am a native North Carolinian, and I can say from personal experience with the Judicial System, that the white man "Good Ole Boy" system is so deeply ingrained there it may take another 1000 years to change it.
In the courtroom and in these comments there is considerable prejudice relating to race - here I mean projection of preconceived notions about Black or Hispanic prospective jurors.
I'm a college graduate, employed with no criminal record or history. My immediate family and closest friends of every race are similar. I respect and appreciate the police, though I abhor brutality, bias/racism and maltreatment some officers inflict. The blue wall of silence bothers me. I'm always accepted onto juries and usually am pleased to serve.
My comments are not meant to be boastful or congratulatory; I am not special. There are many Black and Hispanic people just like me, some more, some less affluent, some more and some less educated. It's offensive to assume we all think alike, as evidenced by some Black/Hispanic people voting for Trump (which I did not).
Perhaps if attorneys (and also police, store clerks and paranoid neighbors) look at people as individuals rather than a group we can make some progress. Judge not by the color of skin, but content of character. Many jurors are white males; do we assume that makes them racists or mass shooters? If answer is no, lets apply that logic across the spectrum.
I struck a lot of juries as a defense attorney and generally found that the state struck as many black jurors as they could, especially if the defendant was black. The Batson case was aimed at correcting the problem but is basically a paper tiger since judges only rarely grant Batson objections. At least, that was my experience. This is one of the most frustrating aspects of defending criminal cases. It needs some new approach that is unknown to me. I doubt that the general public has any interest in reading about it in the local newspaper.
1
The Chicago Symphony Orchestra had few if any female members until they started having their musicians audition behind a screen. Can't we find a way to question potential jurors in a similar way, one which does not reveal their race?
4
What if prosecutors are selecting for income and that correlates with race?
Or are selecting for education and that correlates with race?
Or are selecting for prior interactions with law enforcement and that correlates with race?
Or are selecting for their best judgment as to "more likely to convict" and that correlates with race?
Or what if they are actually discriminating based on race for all of the above reasons--is that rational discrimination or wrongful discrimination?
4
When musicians try out for spots in a symphony orchestra they do so behind a screen so that bias based on sex, race or other physical characteristics is eliminated. This has worked well and as a result there are many more women in symphony orchestras than there used to be. Why can’t a similar system be used in selecting jurors ? Sure there would be some logistics to work out, but it shouldn’t be too difficult. Put the jury selection consultants out of business.
1
The most important line of this article cries out for further detail:
“defense attorneys’ actions in the last leg of the process do not cancel out the combined skewed actions from prosecutors and judges”
Presumably, they cancel out the actions of prosecutors but not those of judges. If that is the case, then either (a) policy reform needs to focus on judges, not on jury selection by attorneys, or (b) judges have a legitimate reason for statistically eliminating more black jurors than white jurors (eg more inappropriate courtroom behavior).
This piece needed better editing.
1
As a white police officer I testified a number of times in New York County and Bronx Supreme Court. I guess I'm an outlier but I preferred Bronx juries to the more white Manhattan juries. I found them to be more grounded in reality that their Manhattan counterparts and certainly willing to convict if they're presented with the proper facts.
1
Hail the efforts in Washington state to reduce the effects of race bias in jury selection. (But remember that, even in the 'bluest' of states, the overwhelming majority of legislators -- and nearly all, if not all governors -- are white men who are only as 'progressive' as the status quo 'permits.')
1
One solution would be to randomly pick jurors from a qualified pool. No picking and choosing.
Same should apply to stop 'Judge' shopping to those filing appeals seeking specific Judges likely to favor their cause..
The mental gymnastics in trying to find new forms of racism is actually making the standard of 'blind' justice more distant.
This piece is fraught with problems based on its premise that greater exclusion of Black jurors is racist.
The author acknowledges that Black and White jurors make different judgements regarding the guilt of the defendant, a fact which, by definition, demonstrates racism in the system, either by Whites or Blacks, depending on one's point of view.
Were there no racial differences in juror judgement, there would be no argument here. Given that there are racial differences, it would seem that peremptory challenges, by both prosecution and defense could be seen as as creating a balanced jury.
2
Could it be that prosecutors and defendants aren't so much racist themselves, but rather assume that ordinary people tend to be racist? So they assume that white jurors will be more likely to convict a black defendant and black jurors more likely to acquit?
In theory, of course, we could find this out by comparing how jurors are selected when the defendant is black with how they are selected when the defendant is white. I would be very interested to hear if Dr. Wright's research can shed any light on this.
1
As long as race influences the way a juror votes (as in the OJ case) it is perfectly rational for the trial attorneys to consider race in using their challenges. Their first obligation is to their clients.
2
All comparisons in this study were made using the “original jury pool” as the gold standard. In my limited experience the jury pool is not very representative of the community in the first place.
@DrBr
Did you read the published article reporting the research? The source pools (voter lists, driver license lists, etc.) from which jury pools are selected in North Carolina where the study was conducted ought to produce an aggregate representative jury pool if jurors are drawn randomly from the source pools.
For any given trial the pool may not be representative due to randomness but across all felony trials in a particular year in North Carolina the aggregate jury pool is representative. The study looked at aggregate results (the summation of all the individual trials).
The principle purpose of military, police and the criminal "justice" system never is to "protect the public."
The principal purpose of all military, police and criminal "justice" systems always is to control the population for the benefit of the ruling elites.
In the U.S.A., the ruling elites are almost exclusive white, so the elites insure that whites dominate juries and other critical components of their population control systems.
America is more a nation of racial, economic and political oppression than it is a nation governed by the rule of law.
Anyone who thinks racism doesn’t affect jury selection has never been called to jury duty. I’ve been called three times; all three times were for first-degree murder cases, one more horrific than the other, and all the accused were black men. I am not at all squeamish, nor do I look it. What I do project is a strong image of a white professional woman, I dress professionally, and I assert (truthfully) that I depend on my own consulting business for income. And, I don’t doubt for one second that the judges who immediately excuse me from jury duty surmise that I would likely not be the “type” to be compassionate to the accused.
2
This should be balanced out by the fact that white jurors are more adept at getting themselves excused from the pointless, waste of time, grandstanding, by the attorneys, laughably called a trial. In addition, the judges charges to the jury frequently make it clear which verdict he expects.
This is an anachronism which should be abolished. People are told to give up days at work to decide a legal matter about which they know nothing. Either jurors are bullied into a verdict or harassed by their fellow jurors for not agreeing to the shortest deliberation possible. It is supposed to be a jury of your peers. What exactly does that mean? Should drug dealers' juries be other drug dealers? End the farce and use judges who are professionals, not amateur laymen pretending to know the law.
1
Maybe if jury duty paid more than $10/day, more black people (who are disproportionately lower income) would actually show up for voir dire.
When I was called to jury duty, it was clear that the only people who wanted to be there were retirees and government workers. This lack of class diversity in the jury box is a real problem.
1
Social scientists prove what they want to prove. I suggest that every one read Charles A. Beard's speech to the American Historical Society in 1933.
https://www.historians.org/about-aha-and-membership/aha-history-and-archives/presidential-addresses/charles-a-beard
It's just as relevant about the Quasi-scientific disciplines as it ever was.
I note that these authors do not mention whether cases before black judges, handled by black prosecutors, are any less racist in the use of challenges .
Parenthetically, I've noticed that the members of the jury pool here who are already somewhat self selected tend to bre cp,[psed pf people who don't have to work. They are far from representative of the wider society before actual selection begins.
@vineyridge
"I note that these authors do not mention whether cases before black judges, handled by black prosecutors, are any less racist in the use of challenges."
In the actual published article of the research, these are addressed. An opinion piece in the NYT is far more brief and summarized than the 35 page academic article.
An attorney may strike a juror on racial grounds because, all things being equal, a juror of a different race will more likely render a desirable verdict. Isn't this what you would want your attorney to do?
The whole jury selection thing is a scam. First off, for either side to dismiss jurors based on race, is only showing their own racism. Lawyers defending a black accused person are implying that they believe all white people are racist, by rejecting a white juror. Lawyers defending a white accused person (esp a cop) suggest that all black folk hate white people, or cops, by rejecting a white juror. People are typically very nuanced, and can't be pigeon-holed by race.
But it's not just race. Jurors are rejected for a host of reasons, by lawyers using their well-honed skills of observation. If they see a potential juror who is a middle-aged male, white, speaks with a thick NYC accent and who is wearing a Mets jacket, it's probably safe to assume he is somewhat racist, possibly voted for Trump, and/or is socially conservative.
And so on.
Hide the jurors in a room where their skin color can't be seen. Ask questions by text so voices can't be differentiated. Effectively blind the lawyers to race.
My anecdotal evidence was a civil case, a black man suing a white man -- it was pretty obvious that the white man's lawyer removed all the black jurors he could -- there was one black woman left on the jury, and in a civil case, you don't need a unanimous jury. The strategy worked for him in that case.
Did anybody look to see the correlation between winnowed black jurors and black defendants? I think that the problem may be that there are more black defendants in the big cities. The lawyers want to win. In this racially charged world where OJ can get away with murder because blacks don't trust the police or will ignore evidence on the presumption that all evidence against black males is tainted, of course the lawyers will want to get blacks off the jury. This is not racism. This is lawyers doing their job.
3
Jury selection should indeed be blind. Have the individuals answer from a separate room.
Why would anyone care about this? All I care about is if a guilty person gets found guilty and if innocent people get found innocent. That’s it. Please stop with this obsession with race.
4
@JP
"All I care about is if a guilty person gets found guilty and if innocent people get found innocent."
The point of a trial is to determine guilt and that is done by the jury. Who is on the jury can affect that determination.
1
African American potential jurors are far more likely to be in the criminal justice system than potential white jurors and far more likely to be crime victims. These are the principal reasons for there being struck either for cause or peremptorily.
1
More left-wing scholarship designed to subvert trial by jury process. I particularly enjoyed the dog whistle implicit in this assertion: "There are now over half a dozen states completely controlled by Democrats, whose ascendant progressive wing would presumably support such nondiscrimination protections."
Anyone who watched or has studied the O. J. Simpson trial that knows that racial favoritism cuts both ways in jury trials and that blacks are potentially much more accommodating of black people accused of murder or other crimes than whites would be. There is also the problem of educational levels achieved by each potential juror in complicated cases. I will of course be accused of being racist here, but the fact is that blacks often times are less educated than whites for various reasons.
And then there is this: \\The new rule makes it easier to stop juror removals rooted in implicit racial bias by outlawing peremptory challenges defended with explanations highly correlated with race, like “prior contact with law enforcement” or “living in a high-crime neighborhood.”// The assumption that removing a person with an arrest record is racist lays bare the absurdity of many "implicit racial bias" claims. If a juror has an arrest record, he's probably biased himself against the prosecution. A jury of your peers shouldn't have to include criminals even though the defendant himself may have criminal record and often does.
4
At best this is an incomplete presentation since we are told nothing about the racial makeup of any jury pool. We are also told nothing about any possible relationship between the race of defendants and juries. And we are given no guidance as to what population boundaries are supposed to be relevant. E.g., if blacks make up 15% of the population nationally, is it good enough if blacks get the same percentage of slots on federal juries? For municipal trials, must juries in Detroit be 80% black while for juries in Seattle 8% will do?
Not impressed.
2
@HMI All of that is addressed in the original academic article: Wright, R. F., Chavis, K., &; Parks, G. S. (2018) The Jury Sunshine Project: Jury Selectiom Data as a Political Issue. University of Illinois Law Review, 2018(4), pp.1407-1442. The opinion piece is necessarily more abbreviated than the original research article.
"must juries in Detroit be 80% black"
No, but it is a bit odd that the average jury in Detroit is less than 25% black.
@Dave
Thanks for the added info. But again, for Detroit we don't know the boundaries for the jury pool. Does it include the northern suburbs? And I'd still want to know if 8% black juries in Seattle is a desired outcome.
Bias works both ways. What about the OJ jury? And I would be very curious about the makeup of the Queens jury that just recently was unable to admit the guilt of Karina Vetrano's African American rapist and murderer, even though he CONFESSED, and his DNA was found on her body. I would love to see a photo of that jury.
1
20 years ago I was called for Jury duty at Cook County Court/Chicago. This is court that has all the major criminal cases—mine was a rape and murder of a 6 year old. We were scheduled to go on vacation in two weeks so I asked the jury waiting room Procter what I should do. He took one look at me dressed in sweater set, skirt and pearls and said “don’t worry, you won’t be picked.” I wasn’t. Those chosen had not dressed up for court and not, from what I heard in questioning, were well educated. The defendant was a white male, I recall the jury pool was also mostly white. The lesson I took away was that if you dressed too preppy, you won’t be thought of as a fair juror. Ironically, I am politically very liberal. I never received another jury request in the 15 years following I lived in Cook County.
1
The last Opinion piece I read before Wright's was Goldberg's column about cabinet member Alex Acosta and pedophile Jeffrey Epstein. The demographics are shifting in the USA, but in every institution (law, medicine, education, etc.) it still is best to be white, rich, and male.
I'm shocked, shocked, that racism is alive and well in the American judicial system.
Racism is alive and well. It is sewn into every fabric of our country.
The South still praises the Confederacy as if it was a noble cause.
An entire race was enslaved, beaten, raped and tortured physically and mentally leaving scars we see today.
Instead of apologizing for their sins they want to inflict more pain and repression.
1
There is nothing within our wretched justice system that is not racist and this is old old news.
Another bogus, unscientific study that finds exactly what it is looking for by citing ONE factor.
2
@Max
Try actually reading the full study (Wright, R. F., Chavis, K., &; Parks, G. S. (2018) The Jury Sunshine Project: Jury Selectiom Data as a Political Issue. University of Illinois Law Review, 2018(4), pp.1407-1442); it is far more detailed and nuanced than you suggest.
I’m a reporter on the team at APM Reports that conducted the jury analysis study in Mississippi cited in this piece — for our investigative journalism podcast In the Dark. Our reporting required a reporter to spend months full-time scanning more than 115,000 court records at courthouses in the Fifth Circuit Court District of Mississippi dating from 1992 to present, and then our data reporter spent months analyzing the records. We found that under the tenure of District Attorney Doug Evans, prosecutors struck black people from juries at nearly 4.5 times the rate of white people. We were interested in this district attorney in particular because we were reporting on the case of Curtis Flowers, a black man tried six times for the same crime. Flowers is on death row and maintains his innocence. Our reporting uncovered new information that is now being used in Flowers’ appeal. The U.S. Supreme Court recently announced it will hear Flowers’ case, and oral arguments are expected in the spring. The Court is specifically looking at whether D.A. Evans struck black people from the jury because of their race, in Flowers’ sixth trial. If you’re interested in learning more about our jury analysis, we’ve published the raw data and methodology on our website: https://features.apmreports.org/in-the-dark/mississippi-district-attorney-striking-blacks-from-juries/
8
The math here confuses me. If the number of whites who make it through the two stages of winnowing is X*0.9*0.78=0.702X and the number of blacks is Y*0.8*0.9=0.720Y, wouldn’t that mean that blacks are slightly more likely to make it onto juries than whites?
1
It might seem to indicate that but perhaps not if the second calculation is not parallel to but rather in series after the first.
@EG Yes - I noticed that too. Something's clearly wrong with the math. Start with a jury pool of 1000 that's 50% each white and black. The prosecution dismisses 20% of black jurors and 10% of white jurors, leaving 400 B and 450 W. Then the defense dismisses 22% of white jurors and 10% of black jurors, leaving 351 white jurors and 360 black - i.e., the percentage of black jurors has increased, not decreased.
3
"Juries with more black males tend to acquit the defendant more often, all other things being equal.
Juries with more white males tend to convict the defendant more often, all other things being equal.
Juries with more black females tend to acquit more often, but only slightly; juries with more white females do not tend to acquit or convict any more often than the overall pool of trials. " - Jury Sunshine Project
Why are white women the least biased group?
1
The problem is jurors' own racial bias. It's the reason O.J. is on the golf course instead of in jail after having murdered two people.
3
Is the system racist? You betcha. And deliberately so. But only against minorities.
Imagine Trump on trial with a jury of 12 African-Americans. Then we would see justice done, and not held up by one lone hold-out like with the Manifort trial.
I would like it all to end, but it won't. Not with a 6-3 SCOTUS. Not even a decent human being in charge of the DOJ could do much for the next 40 years.
The real problem here is that we have a system where a defense lawyer and a prosecutor's job is to get their client off or to get a conviction, and like politics it doesn't come down to necessarily doing what is best for the country, but to 'win'. Thus both prosecutors and defense lawyers use profiles to determine , not if a juror is unbiased, but rather if they think they are biased in their favor (the show "Bull" is about an expert on such tactics). The problem is where are those tactics legal? For example, it has been shown young, white collar voters tend to be more sympathetic to the accused based on jury outcomes, but does that mean it is okay to keep them off a jury? Yes, jury picking is part of a lawyers duties, but should they be allowed to 'shop' for jurors they think are biased in their favor? If so, then would it be legal if studies showed that people of color tended to vote heavily in favor of acquital if the defendant was of color (and I am not saying that is true, the studies I have read are all over the place), same way would it be legal to remove whites from murder cases involving non white suspects given that some studies show they tend to vote guilty, and for the death penalty, more than if the suspect was white?
Maybe in the end we need to take jury selection away from lawyers and put it in the hand of judges, at least a judge is supposed to be neutral, something a prosecutor or defense lawyer is not.
This is a typical bias liberal article,which ignores the OJ Trial, & the recent mistrial of the rape & murder of the white jogger in Staten Island, which ended a Mistrial, even though the Defendants DNA was found in the vicinity of the crime. racism goes both ways when choosing a Jury.
3
This study offers yet more data confirming already incontrovertible evidence that racial bias exists in peremptory challenges. Foster v. Chatman (2016) demonstrated how easy it had been for prosecutors to violate Batson v. Kentucky (1986) and get away with it for thirty years. Despite the inane and inconsistent explanations for the jury strikes in Foster, the Supreme Court would never have taken the case if the prosecutors hadn’t kept damning notes and the defense hadn’t managed to get hold of them. Even with the notes, which explicitly showed the prosecutors deliberately excluded jurors based solely on race, the Georgia courts found no Batson violation, and Justice Thomas, in his lone dissent, was outraged that his colleagues disagreed.
Foster, as Justice Kagan pointed out at oral argument, was about "as clear a Batson violation as the Court is ever going to see." Once a defendant makes a prima facie showing that the prosecutor removed jurors based on race, Batson requires the prosecutor to give a "race neutral" explanation for the strikes; the judge then decides if those explanations are merely pretextual. However, any practicing attorney will confirm that once a prosecutor articulates any race neutral explanation whatsoever for striking a juror, no matter how patently ridiculous, that's the end of it. There rarely is proof that a prosecutor is lying, and it's so easy for prosecutors to find race neutral explanations because the explanations don’t need to make any sense.
So. Just whom are we talking about here? The welder seated for his antebellum views? The sharecropper’s grandson seated for his revenge motive? The redneck cop with a bully issue? Or rather professor is it your ilk — attorneys who use plain vanilla law to skewer things in THEIR interest? Who instructs these high-minded past students of yours to use these tactics, hm? Who tells them to be anti-black or anti-white in jury selection...or in life? Where do they get this noxious sense of superiority? From schools like Wake Forest and classrooms like yours, that’s where. So save the many hours and the many trees you and your Ivory-towered wine club sacrificed on the altar of publication; we out here know the score and we know who the true opponents are.
1
Make a Carolina less racist? Good luck with that.
There is a wall over there, go bang your head against it.
To understand and form opinions, about this secretive process (& it is), People should watch BULL, more! Not to accept the TV show as truth, but to think about the process.
Race-Based Jury Nullification
This chapter presents an authoritative case for race-based jury nullification, with particular emphasis on the need for black power in the American criminal justice system. It argues that, for pragmatic and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison, and that the decision as to what kind of conduct by African Americans ought to be punished is better made by African Americans, based on their understanding of the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and law enforcers. It discusses racial critiques of American criminal justice and offers a primer on jury nullification. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as the effect of race-based jury nullification on the Supreme Court case Batson v. Kentucky.
1
I applaud the effort to devise solutions that involve voters.
As long as lawyers on either side are allowed to influence the selection of juries, they will use whatever bias they think will improve their odds. Letting the prosecutors challenge potential jurors first ensures that the advantage goes to the prosecution. Mixing up the timing of the peremptory challenges would help to level the playing field.
That was too easy. Now how do we level the playing field to decrease the effect that money has on the outcomes?
1
Of course the lawyers are going to try to influence the odds of a decision in their favor. They are making these decisions based on precedent. Guilty persons also will always plead not guilty to make a deal for lessor charges, to which they later plead guilty. Our laws are made by people of questionable ethics, enforced by people of questionable ethics, why would prosecuting be any different?
While living in Manhattan in the 1980s and 90s, I served twice on juries for federal court criminal cases. Both juries were racially and economically diverse and seemed representative of Manhattan at the time. In both cases, we took an initial poll before discussing the case. No one voted to acquit. We did however, agree that we could be wrong and so should examine and discuss the evidence. In both cases we spent the rest of the day doing that. I was profoundly impressed with the process, and with the purposefulness and wisdom of each of my fellow jurors. I believe the jury system is the best possible means of delivering justice.
3
The problem is much deeper than the author states. The entire process of jury selection is fraught with problems, both real and potential.
The solution, in my opinion, is to pick a jury at random from the citizenry and the only dismissals would be if the juror is related to, or a close acquaintance of, either the defendant, the victim, the judge, or one of the attorneys on the case. Since all citizens are equal in the eyes of the law, a random selection would be a true jury of one's peers.
Not only would this eliminate the problem of bias in jury selection, it would also streamline trials immensely.
3
Academics really lack an understanding of real life. A jury of your peers is the best system despite its inherent flaws. Do just a smidge of research and realize that any defendant can choose to have a judge instead of a jury, but they don't often exercise that option. ( The math also seems problematic. Regardless of the reason when the defense chooses are the number of remaining jurors out of line with the percentages of the local population.)
Then you are talking about a study done in the South. Does it really have relevance for somewhere like NY?
Finally, the general public isn't going to use the data. It would just further politicize judges, which is the opposite direction any lawyer wants to see the system go in.
6
It seems simple enough that jurors should only be dismissed for cause that must be justified to the judge, period. Or just streamline the whole thing - numbers picked out of the proverbial hat, and the court gets what is picked. Perhaps let each juror speak to the judge privately if the juror thinks there might be a problem with serving/impartiality.
3
Maybe it's time for professional government-employed jurors who are well educated in legal processes and want to serve in this capacity, rather than busy people who must take time off from other occupations and are not as interested in all of the finer details. When I was called, I was most interested in being able to get back to work, not listening to endless variations of what might have happened in case that wasn't relevant to my community.
3
There is a vastly simpler procedure that would completely eliminate the problem of biased selection of jurors, with absolute certainty. That is to assign jurors randomly from among the entire pool of qualified juror candidates, with no peremptory challenges allowed. With no opportunity for de-selection of individual jurors except for overt cause, attorneys would have little opportunity to stack the deck before the trial.
This is the system that has been in place for 30 years in the United Kingdom. (There is still a procedural bias in favor of the prosecution, but outright peremptory challenges have been eliminated for both prosecution and defense.) There is no reason it cannot work here, and it would speed up trials considerably.
13
I am white. Four years ago I did consulting in China, the first from our small consulting firm to do so. I contacted a lawyer who specialized in international contracts to review the draft contract. He looked it over, then added a sentence specifying that any disputes would be settled under Delaware law, where our LLC is based. When I asked why that was important, he gave me a long look, then said, "Really, do YOU want to go up before a Chinese judge and jury?" Point taken.
Later, discussing this with co-workers, my black colleague remarked, "Now you get a little of how we feel every time we go into court." Point taken.
20
In my opinion, jurors in criminal cases should be drawn from within a mile or two radius of where the defendant lives and a mile or two radius of where the crime occurred. That should help level the playing field. In my jurisdiction, jurors usually are older white people, often retired. Jurors are selected from registered voter lists and licensed drivers lists -- both of which act to minimize racially diverse jury pool: often times blacks, and disadvantaged whites, are purged from the voter lists b/c of not voting (for whatever reason) and the same demographics often lose the right to drive.
3
I don’t study the courts so I can only comment on what I see. I live in an urban area but, when I’ve gone for jury duty, the majority of jurors I see are white. Whites are the majority of the local population, and I know that, but if I’m out and about on other business—work, shopping, commuting, doctor visits, whatever—I see and interact with plenty of people, from doctors to shop keepers to total strangers, who are not white. I haven’t done a head count when I’ve gone for jury duty but the jury pool, just going in, looks unusually white. And old. I’m not saying there are no young people but, many are retirees. In terms of time and money, it’s a lot easier to respond to a jury call if you’re retired. And, when you talk to people who are not retired, there are some who own their own business or work with small employers but, really, most are with the government or some other large employer who is paying their salary while they serve. Jury duty for someone who is young or self employed or with a small employer is financially difficult to say the least. So, bias is built in. Add to that what the author describes here and it just becomes worse. Personally, I don’t really have much faith in our justice system and I don’t dispute race is certainly an issue. But, if you’re looking for the biggest color problem in the justice system, I’d have to agree with some of the other people commenting here. Lady Justice claims to be blind but she can sure see the color green.
5
@emmag Jury pools are taken from those registered to vote. Might this explain why minorities are not as well represented?
3
Anyone who thinks this doesn't go on has their head in the sand and Professor Wright has done great work to further our understanding But, it seems from this report that both prosecutors and defense lawyers believe that black jurors are more likely to be pro-defense. If that is right, it's not clear to me that the tendency of prosecutors to exclude more black jurors shows that they are being racist.
9
"Death-qualified" juries (i.e. purged of all those principally opposed to the death penalty) are required in many states in capital cases. Today this disqualifies about ONE-HALF of the jury pool and skews all such juries. And the Supreme Court has said that this is constitutional (?!). Figure that.
6
@Tim Platt What is the argument for allowing people who admit they are selectively opposed to law be allowed to serve on juries that involve those laws?
1
Juries are a medieval artifact that should have been replaced with something far less subject to bias long before now. Handing the decision-making power to a group of individuals with no legal training results in biassed judgments and an inflation of the concealed group process .
The author's proposal seems afflicted with the paradox that controlling for bias always introduces bias. Perhaps we should consider transferring verdict-making to a panel of people who have legal training, experience in interpreting law, and practice in communicating and resolving divergences of opinion with professional colleagues
35
@Sequel
Sounds like a terrible idea. Are we all to be judged by a group of ivy tower elites with no contact with the real world? Legal training is no prerequisite for ascertaining the truth from differing accounts of events which is all that juries are supposed to do. Trained judges interpret the law for them and instruct them on what the law does and does not allow in their consideration of the facts, and, in my experience, juries take their duty and their instructions from the judge very seriously.
For all of its faults, the American jury system is the most fair system that I can imagine. And yes, it sometimes produces bad or incorrect results, but from what I can tell, at a far lesser rate than any other system.
29
@Sequel
I could not disagree more. Groups of specialists can become biased, too, by way of repeated exposure to the issues with which they contend. They are also likely to succumb to direct or indirect political pressure to bend their decisions in one direction or another - to either "get tough on crime!" or be more lenient.
Non-expert juries can be frustrating, but I think it's about as close as we can get, particularly when they are selected in a way that truly reflects the widest swathe of the community and are instructed properly.
22
@Sequel
Democracy is inconvenient, I suppose, if one already knows the truth and does not err in one's judgment of justice.
But for the rest of us, justice requires judgment, even if there are definite truths of justice (perhaps in Plato's heaven). So it is intelligent to assemble a collective judgment based on judgments by ordinary people. Condorcet's jury theorem suggests why this is a good idea.
Juries are neither medieval holdovers, nor a populist dogma.
22
Here is a more direct solution. Have all jury selection take place through a live video system which will blur the faces of the potential jurors and alter their voices so that neither the prosecutor nor the defense attorney will be able to ascertain the race of the jurors.
3
@Jay Orchard
Maybe. But perhaps also apply that same approach during the trial, so the jury never sees the defendants, litigators, or judge.
1
I’m sorry, but no. People come to jury service with life experiences and yes, prejudices, that affect the way they will decide the case. Occasionally, I encounter a potential juror whom I can tell does not like me. Whether it’s because I’m a woman or for some other reason, my client should not be disadvantaged by having that person on the panel. If I can’t see the person, observe his body language, hear the tone in her voice, then I can’t do my job.
People forget there’s someone on the other side who’s doing exactly the same thing I am. In the end, we eliminate most people with the most problematic biases and we end up with a panel that’s as fair as it can be.
1
The problem with the Batson procedure is its sheer absurdity. A peremptory challenge is not based on cause. It can be based on any unexplainable idiosyncrasy. All trial attorneys have mental lists of "types" and "signs" to look for. As a prosecutor I never left teachers on the panel. ("Too confused and wishy washy.") On the other hand, I let sit an Hispanic kid our own office had sent to prison. I asked him if he could be fair; he said, "yes" and I "just felt" he was being straight with me. My superiors were aghast. He swung the jury for conviction.
Peremptories are great because not everything in life can be reduced to Cartesian rationality. Nor should it be.
The absurdity comes in when the trial judge is asked to evaluate the "good faith" of a prosecutor's challenge based on an idiosyncrasy or inchoate hunch. If "any stupid reason" is acceptable how in the world is the judge to detect whether or not there was an intent to discriminate on the basis of race or gender? The issue just goes around in circles and appellate courts usually end up deferring to the "credibility determination" of the trial judge. Result: Instant Appellate Farce.
The author's idea of a data base makes sense. It would allow trial and appellate courts to factor in statistical analysis of a prosecutor's past track record. The data base should list not just the juror's race or gender but the reasons given. It would allow a "comparative analysis" of the prosecutor's challenges and excuses.
8
The O.J.Simpson case demonstrates jury bias which attorneys may be trying to prevent against a client.
8
Professor Wright, many thanks for this useful information. Now let's assess the realpolitik of the problem.
Jury selection in red states, especially, has always been race-based. What state legislature in a Republican-controlled state would hazard its electoral defeat if they made it possible for more non-white to serve on a jury? The systematic oppression of non-white defendants is the lubricant for the continuance of white racist hegemony. This also includes Northern states.
Who--what person or organization(s)--has the time to, as you write--search out clerk of court's records and filings from this proceeding or that, often going back decades, simply to digitize what's already widely known? Even if these records were available online, it's doubtful that anyone except committed entities would avail themselves of the information.
The larger society does not want minority participation in a jury pool. It is their foot in the door to full citizenship and the responsibility of law enforcement to get the thing right the first time. How many prosecutors want that? Not very many. Most prosecutors, in the cops vs. the defendants scenarios, have ample evidence that the cops took a shortcut and the defendant may have been set up. But these prosecutors and their judges need to be re-elected. That won't happen if they are seen to side with "the other."
And the larger question in America is "who really is served by justice?" We all know the true answer: nobody non-white; nobody poor.
4
@Red Sox, '04, '07, '13, '18
Nonsense.
Juries in any jurisdiction, red or blue, can be biased for or against defendants.
And, sadly, it appears your racialist criticisms of the process is mostly projection.
2
Are we trying to seat juries composed of unbiased people, or are we aiming for juries with balanced biases?
14
I have been and still pick criminal juries in NYC for 30 years. I find this article and author lacking in substance and knowledge of what goes into selecting juries for criminal trials. I truly believe that academics such as this author should be out in the filed more and out of the classroom. I invite the author to come work with me from the moment I pick up a case. First we go to meet the client in the holding cell. From that second you start picking a jury in you mind. Then we do the arraignment and this determines if your client is in or out. Again, I’m still picking a jury in my head. As motions and the discovery process continue, your still picking a jury in your head. If god forbid, the case goes to trial, hundreds of factors come into play. Location of jury selection being huge. White neighborhood? Cop friendly neighborhood? Literate vs an illiterate jury pool? A judge who isn’t biased either way? Who’s testifying? White cops? I could go on for hours. The bottom line? Our system isn’t perfect but it’s the best around. The author should now do research on what I believe is the systems biggest issues. Untrained and incompetent Attorneys and some really really really bad politically appointment/elected judges need to be removed. The offer stands. Come pick a jury with me.
23
While the data in the article seems to support that lawyers are using race to craft their juries, the math does not seem to support the conclusion that "African-Americans occupying a much smaller percentage of seats in the jury box than they did in the original jury pool."
Based on average demographics, a 100 person jury pool would have 62 non-Hispanic whites and 15 African Americans (about a 4:1 ratio). If the prosecutor strikes 10% and 20% respectively, that would leave 56 white/12 African American. The judge then removes 20% and 24% for cause (which is a relative difference of 20% more, per the article which confusingly switches how it talks about the statistics for this number....), that leaves a pool of 45 white/9 African American. The defense then strikes 22%/10%, resulting in 36 Whites/8 African Americans, just a touch under a 4:1 ratio. I.e., *the same* as the population started out. So while race is being improperly used, it is being improperly used by both sides so much that it seems to cancel each other out for the final result.
In other words, this math does not add up?
14
This piece is a hot mess. After acknowledging that black jurors are less likely to convict (an obvious problem if you’re a prosecutor), there’s no effort to discern whether there might be good reasons for that. Increased contact with the police, likelier to have relatives in jail or prison, different expectations for safety, lower emphasis on property rights...there’s a long list and it undoubtedly correlates with the pernicious effects of race in society as a whole.
I’ve been a prosecutor, and I’ve had black jurors thank me for not striking them, which really struck me. Societally, we have work to do to obtain buy in from some of our communities, both minority and poor. But removing an important tool from lawyers whose advocacy is itself designed to bring about the right result be ultimately harmful to the process.
119
@Freya Meyers: I don't see where a tool is being taken away. The illegal tool of racial discrimination might be discouraged if the process was made more open, as the article suggests, but there is nothing about eliminating peremptory challenges altogether.
21
@Freya Meyers Of course, there is always the disproportionate prosecution of cases involving minorities compared to white perpetrators.
9
@Freya Meyers
So you asked a good question. Is there a good reason that they are less likely to convict and your list is ,contact with police, jail, prison, different expectations for safety , lower emphasis on property rights. But that is the point to have a jury of your piers. You want people who have been arrested for no cause. You want people who have had to deal with a bad land lord. You want people who have been beaten by a cop. Because that is what happens every day. That is what society is. If you truly want JUSTICE then you need people on the jury who have lived a complete life not a window dressing life.
For instance, I was asked by a cop if I had ever been arrested. I answered yes and, then told him that I was not convicted though. Then he said that I should have not answered yes. I said then why did you not ask if I have ever been convicted if that is what you wanted to know. Obvious cops believe that if you are arrested then you are guilty and then prosecuted. It is obvious then, Mr. Meyers that you believe the same. You can tell just by looking at were they live and how they dress as to how they will vote. I can't spell to save my life and my grammar is terrible but that does not mean that I am dumb and that does not mean that I can not have an informed opinion. But all you have to do is look at some one and then you KNOW everything about that person.
21
The problem is not with preemptory challenges- it is much deeper. No one should be surprised by the fact that Black jurors are less likely to convict a Black than White jurors. Black jurors are aware that Blacks have endured centuries of discrimination, often on the part of the judicial system. The OJ case is one glaring example of minorities striking back at an unjust system. We should not be focusing on judge, jury or prosecutor selection. We desperately need to deal with the deep and pervasive racism that exists in America.
74
@Disillusioned
Or perhaps we should focus less on perceived racism and more on the disproportionate amount of violent crime committed by young, black males this putting them before allegedly biased juries.
14
@Disillusioned"We should not be focusing on judge, jury or prosecutor selection. We desperately need to deal with the deep and pervasive racism that exists in America.
In the meantime, if you are an attorney trying to defend your client you have to do your best to select a favorable jury.
1
@DisillusionedThe OJ trial is a shining example of bad prosecutors. They let them run rampant with the glove thing and didn't even question it even though he is clearly bunching up his hand.
3
Dr. Phil met Oprah when he was a jury selection expert. She got in a scrape with the Texas beef ranchers, and he made sure to pick a jury that would turn in verdict in Oprah's favor. By choosing the jurors who would be most apt to favor Ms. Winfrey, they won the trial almost before it began.
How warped are we that we allow people to corrupt juries by using psychologists trained in behavior? It's the ultimate manipulation, and it's 100% legal.
I don't know anyone who thinks they'd get a true jury of their peers in our legal system today. Instead, depending on how smart the other side is, we'll get a jury of people selected based on how well they can be manipulated.
7
Justice in America has never been blind. It has eyes, ears, friends, enemies and political ambitions requiring powerful donors. Look no further than the case of Jeffrey Epstein.
1
Wars are rarely won by single battles, but battles and skirmishes often serve to wear the enemy down. A major American war is that against racism. This article shows one area that needs to be cleaned up, and there are many such areas. Let's not forget: racism rots America's efforts to form a civil society; it rots America's influence for good in the world, and it's part of what makes a $700+billion infusion into the Pentagon a seem necessary.
2
Supreme Court Justices (e.g., Thurgood Marshall) have also advocated abandonment of peremptory challenges.
6
Jury facts are all well and good but the chief culprit of an unfair trial is legal representation. Who can really afford a day, week or months in court?
5
So, as non-white jurors are statistically more probable to acquit, and white jurors are statistically more probable to find defendants guilty, the attorneys' selection decisions are evidence - based. But rather than accept the scientific data, you would prefer a socially engineered solution. Do I have that right professor?
8
So, your data substantiates that white jurors are prone to find for the prosecution while non-white jurors tend to find for the defense. Assuming the accuracy of your data, the attorneys are making evidence - based assumptions in the challenge process. So rather than allow the attorneys to make scientifically based assumptions, your recommendation is that the process be socially engineered to arrive at a politically correct solution- just or not. Is that your argument, professor?
North Carolina, Mississippi, and Louisiana - so the pattern probably hold true for the rest of America?? The three Southern states do not represent America. They represent the Confederacy. Granted some of their systemic racism has penetrated non Southern states as well but it is a stretch to base an assumption that their racism extends to the rest of America.
3
@TimToomey
No states represent the Confederacy, a political failure from over 150 years ago.
1
I appreciate your concern. That being said, someone with a history of “prior contact with law enforcement” or “living in a high-crime neighborhood” would likely have a bias against police officers and the justice system. How do you reconcile that bias as being acceptable?
1
Where is the bottomline bias figure that supports the conclusion that "The consistent result is African-Americans occupying a much smaller percentage of seats in the jury box than they did in the original jury pool"? Combine the competing biases and provide the resulting net bias.
By the way there are other areas that can be assessed for racial bias and one of them is schools. Our city public schools had their admissions policies racially balanced (officially to eliminate them from being too "elite"). As a result the academic rating of our top high school has plummeted to a 3 out of 10. But as a conciliation we are left a number of (objectively-selected) high performing, all African American athletic squads.
If the author (and NYT) want to do justice to the issue of racial bias they should expand their search domain.
3
This article made me think of the solution to the problem of discrimination among musicians: having them perform for their tryouts behind a curtain, where the judges couldn’t determine their sex, race, etc.
Perhaps something similar could be done with prospective jurors. It would be more complicated, as the replies to questions might, if transmitted directly in their voice, give away some of those characteristics that lawyers and judges aren’t supposed to consider in juror selection.
But, it would certainly make it difficult to base a juror choice on attributes that you are unaware of.
1
As a criminal defense lawyer here in Maine for over 30 years, I have found this an increasing problem. Maine is one of the "whitest" states in the country, but we have an increasing population of Somali immigrants, African-Americans, and other minorities. Yet, our jury pools are typically nearly 100% white. I recently represented a young black man from Philadelphia in a shooting case in which the local prosecutor struck the lone black juror among a pool of over 100 white people, clearly on pretextual grounds. The trial juge denied my Batson challenge, and our very conservative Maine Supreme Court sided with the prosecution on appeal. It is a pathetic sight on the first Thursday of each month when we pick our juries for that month's trial list, the room basically exclusively white -- a hundred or so potential juries, all white; a white judge; a white prosecutor; white defense attorneys; white court clerks and court officers -- and the inevitable minority defendant sitting there in the sea of white, about to have "justice" exacted upon him. I don't see things changing for the better anytime soon.
118
@Jim Howaniec
Once again - the incarceration rate for blacks in in ME is over six times the rates for the numerous 'whites' in this state.
This disparity can not be explained away by the usual plaint of institutional racism
https://www.prisonpolicy.org/profiles/ME.html
14
@Jim Howaniec
I see by the tone of your comment that this is a great distress in a state of 1.3 million with a 95% white population. What would be a solution? All white juries for white defendants and all black for black defendants? Putting into question the competency of the current state of affairs almost sounds like a troubling argument for segregation.
5
@Jim Howaniec We are all humans, are you saying that your very progressive state is highly racist?? Perhaps the reason that some are found guilty is because by the law they are guilty. Race should have no place in deciding guilt, the evidence should. Thinking it does without objective proof is actual racism.
1
"These two reforms alone would greatly aid efforts to hold prosecutors and judges accountable as well as shore up public trust in the criminal justice system."
You know what else would shore up public trust in the criminal justice system?
If people like Ronald Wright would stop trying to find and justify claims of racial bias in everything that happens in a mixed race society by using data that doesn't prove causation and only shows numbers statistically meaningless.
Instead, figure out how to remove a potential juror who had “prior contact with law enforcement” or “lives in a high-crime neighborhood” without the answer being "highly correlated with race."
Is racial bias responsible for everything?
3
@Mimi
The answer is no, but the real problem is that actions that may be justified otherwise turn out to be based in race. The reason for peremptory challenges is to allow lawyers to remove potential jurors they feel might be biased against them. When I was a young, college educated white guy and called for jury duty in the Bronx, I was routinely booted by prosecutors, which I later learned through 2 family members who had been ADA was based on the notion that I would be inclined to be supportive of the accused.
The underlying problem, one that no one really has addressed, is whether non white jurors in fact are biased against the prosecution when people of color are brought up. Prosecutors assume so (interestingly, doesn't matter whether they are white or black, the prosecutor tend to remove people of color, based on what came out of NYC). Lawyers tend to have profiles of potential jurors, and the real question is is their bias against non whites based in fact, or based in perception?
1
@bill d
Is it true that black jurors tend to be against the prosecution and tend to acquit? If so, why? Is it because prosecution and law enforcement tend to be white? Is it because defendants tend to be black?
If so, then are not blacks just as biased against whites as prosecutors are against blacks as jurors?
My point is that as long as "racial bias" is a "thing" then nothing is ever "fair."
And what do we do about Asians, Middle Easterners? Who is biased against whom? Aren't more prosecutors and law enforcement folks black, thus throwing out all kinds of racial "norms?"
There are so many mixed race people now that how can anyone even tell who is what? I really hope that more and more inter racial mixing goes on so that there are no "races" and therefore racial bias cannot even be a topic of conversation or debate.
2
Thurgood Marshall, associate justice of the U.S. Supreme Court, wrote in Batson v. Kentucky that the only way to end racially biased peremptory challenges is to end peremptory challenges. I agree. If a case's parties have good reason to challenge a potential juror, let them explain it.
1
Good proposals to make jury selection color-blind (i,e, less discriminatory). But the jury members themselves may fall in that blind pool where 'ancient' racist feelings may persist, and woken up by the 'expert invocation' of a lawyer to present his/her case. Our human tendency to distrust people that appear different from 'us', and pre-judge accordingly, does require we educate ourselves in subconscious biases we ourselves are not aware of. And justice is sold short, with an unsatisfying outcome more often than we are willing to admit. A Gordian's knot.
13
Mr. Wright's bias in obvious. First , he uses %'s and not absolute numbers - whites are 6x the population of blacks. Defense attorneys jobs is to seek acquittal regardless of guilt whereas prosecutors have an ethical obligation (not always met) to only prosecute the guilty. Wright gives a pass to defense attorneys for excluding more whites (on an absolute bases 3 times the numbers) "seemingly in response". or perhaps, it's simply that they want defendants to get off regardless of guilt. Prosecutors and defense attorneys have an equal number of peremptory challenges.
4
I have another suggestion. As to the e.g., Black juror peremptorily challenged, ask THAT juror to pick his own replacement as he or she departs. JUDGE: " You have been excused. On your way out through the jury pool room, pick someone who looks as close to you as possible to come back into the courtroom."
If this idea is adopted, attorneys will be much less inclined to eliminate someone solely on account of race.
2
As a person of color, I learned long ago that essentially there is no justice in this country, just us.
1
"There is no Justice in the Justice system" as someone once said. This column proves it.
1
Roughly 9 years ago I was called to a panel in Newark where the defendant was accused of taking illicit photos of his 14 year-old niece. The accused, the judge, and the defense attorney were all African-American. The prosecutor was Latina.
Inevitably, the prosecutor used her peremptory challenges to remove every African-American man from the panel, including one man, whom, other than his race and gender, had nothing in common with the defendant. In fact, by my guess and observation, he seemed, if anything, biased against the defendant so her dismissal of him seemed to be based on one thing: what this op-ed is about. She was also, as much as she could, removing African-American women. Meanwhile, the defense attorney was doing the opposite and dismissing every White man and what White women he could.
As a White male, I was dismissed by the defense, but because I stated I knew 2 women who had been victims of similar crimes as children, I was surprised the judge didn't dismiss me himself, but rather forced the defense to use a challenge, which seems, anecdotally, to support the author's thesis.
That was here. In New Jersey. In a Newark court, where all 3 officers of the Court and the defendant were People of Color and not in a rural, Southern state.
Again, this seems to support the author's contention.
41
@Dadof2
That isn't surprising, I was removed from juries in the bronx where I was a minority in a sense (white collar, white male) in a jury pool that was largely minority, and it was the prosecutor who did it. The real problem is that lawyers, white or black, often go on perceptions, that a white will automatically convict a non white accused, and a person of color will not convict "one of their own". In my case, there actually is data that shows that young, white colar workers (white or non white, doesn't matter) tend to be more favorable to the accused, whereas blue collar jurors, especially white ones or older ones, tend to be more sympathetic to the prosecution.
I think there is a real question here, and that is where does the profiling go from being a legal tool to one that isn't? If the idea is to get a fair jury, maybe lawyers shouldn't be the ones deciding the jury pool, but that raises questions if a judge does it, is that fair?
4
@Dadof2 Now a level of "proof" is "seems"? Perhaps it was some other factor like economics?
1
"Another answer — which could gain support in even the toughest of “tough on crime” red states"
Calling "red states" tough on crime needs to stop. They, meaning the state apparatus, is not tough on crime, just tough on crime by first, black citizens, and second, anyone who is poor and without resources. These states quite easily close their eyes to crimes committed by cops and D.A.s. If you read articles by Radly Balko (WaPo) and the Marshall Project, among many others, you will be horrified how the states indulge even the most egregious actions by these groups routinely. Very liberal places like New York City, are tough on real crime (not to say there aren't many examples of the contrary). The crime rate in NYC is one of the lowest in the country.
8
@ronnyc
Putting "tough on crime" in quotations is meant to draw attention to the irony of the term.
Racial disparities are not always racism. Do black prosecutors handle challenges any differently than white ones? The author doesn't tell us so, perhaps because they don't. If a prosecutor faces an elderly black lady who believes that she can't vote to convict an accused robber because she can't "judge" someone who looks like her son, is it racist for the prosecutor to challenge her? Too many jurors with an emotional feeling for a defendant can deny a fair and effective judicial process.
56
@Amanda
A large statistical sample greatly diminishes special cases. Comparing large numbers eliminate idiosyncratic choices like "an elderly black lady who believes that she can't vote to convict an accused robber because she can't "judge" someone who looks like her son."
6
Hello Amanda. Your scenario lacks context. If the "elderly black lady" states that she believes she can't convict someone who looks like her son, then she should be removed for cause and there is no racial bias. On the other hand, prosecutor simply believes the woman cannot convict because the defendant is black, then there is likely racial prejudice as the prosecutor has used his or her assumption of how the black prospective juror would act. A prosecutor, or defense attorney, does not have to be of a different race to act with racial prejudice hence, a white attorney who believes a white jurist may hold racial prejudice in the courtroom against blacks may be using race to dismiss that jurist.
I also find it interesting that you stereotyped the black elderly women by having her act in a way you believed she would. The truth is, it could be a young, black army veteran, city council member or physician. How would you assess those people?
17
@Amanda
Racial disparities are themselves a problem, whether or not one calls this "racism." Racial disparities in juries mean that juries fail to reflect the judgment of citizens. Creating a more just society is every citizens' job.
8
What guarantee does a defendant have that any given juror of another race is not racist? The only protection that defendant has is for the defense attorney to remove any juror who is perceived as racist.
As for questioning jurors regarding racism? Well, Professor, if you spend enough time in court, you will discover that potential jurors lie, especially about embarrassing issues. Like "Are you racist?'
Counsel can dress it up or disguise all sorts of ways-if the judge permits meaningful voir dire which is rare, and judges can issue grave admonitions-doesn't matter.
Potential jurors lie. About being racist. about being bigoted, about what they have heard and opinions they have formed. Too often, deciding on an individual juror comes down to body language, tone, indefinables,in short, fingerspitzengefuhl.
2
A trial is an adversarial process. The idea is that when both lawyers do their best to win, then the side with the better of it will actually win.
Peremptory challenges are used to excuse jurors that lawyers suspect will be unsympathetic to the cause they advocate. (Jurors blatantly unsympathetic to either side will be excused by the judge.)
A prosecutor needn't be racist to presume that a black man who thinks society doesn't give people like him a fair shake will be sympathetic to a black man accused of a crime. And a defense attorney needn't be racist to presume the same thing. The prosecutor is trying to win, just as the defense attorney is trying to win.
Of course, those presumptions may be wrong, but prosecutors and defense attorneys are playing the odds, trying to win their case. And, they are trusting the judicial system to reach the right result after both of them act as 'zealous advocates' of their side.
If attorneys are mistaken about the predilections of potential jurors, they will be more likely to lose their cases. So, to the extent race correlates with predilections, that's reality, not the lawyer's racism. When race doesn't correlate with results, lawyers will stop acting like it does.
The alternative to peremptory challenges is NO peremptory challenges. That's fine with me, because I think a representative jury of peers SHOULD include people suspected of biases. After all, they're among us!
2
It’s time to change our outdated system of juror selection and move toward a radical concept — professional jurors. I say this because our increasingly gig-based, independent contractor driven economy makes jury service in all but the shortest cases a financial hardship for potential jurors, especially those of limited means. Getting jury duty is fine when you work for a large employer that can afford to pay you your regular salary while you do so. But if you drive for Uber, work at a part-time job that doesn’t pay you for jury service (I’ve been in that situation), own your own small business, essentially any situation where if you’re not working you’re not getting paid, you are paying for the “privilege” of serving on a jury. The way our economy is going, that situation applies to more people all the time, which means the pool of jurors who are actually willing to be there is shrinking and becoming more biased to those with financial privilege, regardless of race.
15
@Nikki I support the idea of professional jurors in civil cases involving complicated medical, scientific or financial issues. Case in point: the recent Monsanto/Round Up case where 12 laymen were asked to determine whether a pesticide caused the plaintiff's cancer. Other than their sympathy for a cancer sufferer, what intelligence could these people possibly bring to bear on an issue upon which the scientific community can't agree? Let's remember that when jury trials were enshrined in the constitution, there were no Enrons or Monsantos. We are simply asking too much of our jurors and their response is often emotional, not rational.
1
"It’s the only way to ensure that defendants are judged by a representative cross section of their community, not the filtered few that litigants want to see in the jury box."
I thought people accused of a crime were judged by a jury of their peers, which is not the same as a "representative cross section of their community". Diversity is all well and good as a general principle but even our fair housing anti-discrimination laws allow for an individual selling their own house to discriminate any way he sees fit when choosing who he will sell his house to.
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@Aristotle Gluteus Maximus, there is a popular myth that we are entitled to "a jury of our peers." Today this right either does not exist or exists in a way most do not recognize. First, jury of peers is not found in the U.S. Constitution, but comes from the Magna Carta in 1215, when society was legally divided into separate classes. So, being tried by a jury of your peers meant you would be tried only by those in your legal peerage. The U.S. Constitution operates on the principle that there is only one peer group in this society--that is to say, your fellow citizens.
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@Aristotle Gluteus Maximus, a jury of peers is the same as a representative cross section of their community. It's hardly a jury of peers if you remove all the people who are like the defendant, is it?
I've been called for jury duty and one thing I couldn't help noticing was that justice was not truly blind. One case involved domestic violence. Anyone with any experience with domestic violence was excused from serving on the jury. Another case involved murder. Anyone who had had encounters with the police was excused. On other cases people were excused because they had college degrees.
In truth most of us, should we ever face criminal charges and go to trial will not be judged by a jury of our peers. There will not be any understanding of why a woman might murder her husband who has abused her for decades or just a few years. No one will care that the African American male, who ran from the cops, might have refused to stop, and was arrested for something stupid isn't guilty of anything because he ran from the cops. The jury won't understand that he might have a well founded fear of dealing with cops period.
The other problem that was on display was how much having money matters when it comes to hiring a decent lawyer, getting a good defense, having a lawyer who read the case before coming into court for the first sessions of jury selection, etc.
In other words how well any of us do in receiving justice may have nothing to do with our actual guilt or innocence. It may have far more to do with how much money we have to spend on a jury consultant, someone to test the evidence, someone to do a second autopsy, etc.
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When the right to trial by jury was incorporated in the Bill of Rights there were no issues of race discrimination. Nor were there jury consultants or other professionals who deliberately pick jurors that they believe will favor their side and who craft the presentation of the case to appeal to the personalities, prejudices and biases of the selected jurors. The verdict is in: Given the realities and inherent defects of the modern jury system, it’s time to retire that system.
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@Jay Orchard There were no issues of race discrimination when the Bill of Rights was adopted? Is that a joke? The vast majority of black Americans were enslaved at that time and, therefore, couldn't serve on juries. Many places had laws excluding even free blacks from serving. There was thus much less opportunity for the trial lawyers themselves to be racist during jury selection, but only because official state racism had already done the job. (There was also no issue of sex discrimination, as women were virtually entirely excluded. )
I have been a criminal defense lawyer for 36 years, and I can assure you that the percentage of defendants who can afford a jury consultant is less than .01%. You're looking at the system through the wrong end of the telescope.
The jury system is not modern. It goes back hundreds of years. Denial of the right to trial by jury was one of the grievances listed in the Declaration of Independence to justify our break with England. Of course the system has defects. All human systems do. You call for the "retirement" of the system. Interestingly, you offer no suggestions for a replacement. What would your defect-free system look like?
To paraphrase Churchill, jury trials are the worst form of justice. Except for all the others.
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@Jay Orchard the issue is that the judges are no less biased than jurors. There's even data that judges rule differently based on if they're hungry or not. At least with jurors you have a better shot of having a hold out and not being convicted. With a judge there's just 1 person making the decision.
@Jay Orchard Yes, I would definitely retire juries for civil cases, where juries are often far beyond their competence and too often just default to finding against the big, evil corporation.
As for criminal juries, there is justice that incarceration is not solely in government employee hands. Improvements can be made.
The professor has not proved his case with only correlation evidence. How would that work with the NBA?
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The one truism of the progressive movement is that its know-it-all efforts to micro-manage the human condition seldom succeed and more often than not make problems worse.
The author of this piece readily acknowledges stereotypical juror tendencies that correlate with race, ethnicity, gender, economic circumstances, etc., and with the likelihood of rendering a particular verdict. As long as we use human jurors, those tendencies will be present in the jury room. Current practice gives each side a numerically equal chance to influence the selection process. Yet the entire thrust of this article is that the selection process must be overhauled to protect the racial bias he favors.
Over the last few years, I have tried to remove the concept of "fairness" from my vocabulary and consciousness. I find that those obsessed with fairness simply reject the outcomes that naturally occur in our society and wish to mandate their own subjectively determined outcomes in their place. And that process always sends us speeding down the slippery slope of imperfectly managed outcomes that simply replaces one form of bias with another.
Recall that the system of preemptory challenges, now condemned as a tool of bias, was originally conceived to inject greater fairness into the selection process. If you want to eliminate such challenges for both sides, go ahead, but some progressive will have a problem with that as well.
Jury trials will always be an imperfect human process. Deal with it!
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@AR Clayboy Any civilized country does NOT have jury involvement with the law. Nor does it have judges that run for office, but judges appointed by the crown / highest level of government that only weighs experience and aptitude as a judge (the experienced lawyers go to several years of rigorous training to be considered for a position as a judge). However, a country that is as young and unruly as the USA still is, might not be mature enough yet to adopt such procedures.
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@AR Clayboy is incorrect in disregarding "fairness". The Golden Rule (fairness) is central to justice. Artemis is incorrect in thinking American juries are for the uncivilized. The jury system is the best system, but ONLY IF the citizenry is educated and willing to think as citizens, not tribal members. Good faith can overcome bias in any jury.
That said, in my earlier comment I propose than an excused juror pick his or her own replacement. That would discourage attorney bias in juror selection.
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@AR Clayboy
Each side does not have an equal chance. Defense attorneys get to question potential jurors and to challenge them only after prosecutors have already winnowed the pool. That they have the same number of challenges is misleading.
It would be interesting, with respect to those folks who think sequence is not critical, to change the sequence and let defense attorneys go first. Any guesses as to what the reaction would be, as to something that "doesn't matter" when prosecutors go first? I suspect the transition from "doesn't matter" to "matters quite a lot" would occur at a significant percentage of the speed of light.
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"peremptory challenges are indeed a vehicle for veiled racial bias that results in juries less sympathetic to defendants of color"
That may be, but they are also an important part of any defense. Far too many judges are biased for the prosecution, and handle challenges "for cause" very unfairly. There is no other effective counter to that.
Many times, a pre-empt is based on a feeling. You can't always explain it. That does not make them wrong, far from it in my experience.
This is a baby in bathwater problem. Racism is only one specific limited part of it.
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@Mark Thomason the simple solution is to give the defense more peremptory challenges than the prosecution.
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@Will Smith -- According to the story, the defense can in some cases be as racist as the prosecution. Think of defending a cop accused of shooting a black kid in a racist incident.
Pre-empts are a very complex question. No simple answers. Doing away with them is impossible. Making them work well is very hard.
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Or, potential jurors could be sequestered out of sight of the prosecuting and defense attorneys, with their names replaced by numbers and their responses to any questions asked masked by voice filters so even gender is unknown to the lawyers. Justice is suppose to be blind, is it not, to these attributes of an individual? Well, let's make it so.
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@Glen
Experienced trial attorneys and consultants rely upon "tells" provided by subtle manifestations of voice, facial features, and body language displayed by potential jurors.
The transparent process is essential. I would not want to rely on and masking techniques, because jurors are known to fudge the truth if it privately suits them to do so.
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Well, LarryAt27N, I've been called to jury duty several times, empanelled on a couple occasions (nothing "serious" in the form of murder or grand theft, etc.). It is no exaggeration to say that none of us in the jury pool (which also means none of those chosen), wanted to be there, on that day, for that reason.
I do believe that complete juror anonymity up to the moment the trial itself begins, would work to the advantage of the aggrieved party (the defense when the defendant is innocent, the prosecution when the defendant is guilty) more often than not.
Let the counsel for the prosecution and for the defense perform for the audience they get, not for the one they pick.
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I was in a jury pool for a custody case with one minority (male Hispanic) who was dismissed because of a prior negative experience with Human Services. The balance of justice was clear with three lawyers at the prosecutors table, three visitors from the DA office, stacks of folders on the prosecutor's table, and another table for the Human Services lawyer. This was not a felony case so six jurors were required. The defendants, a Hispanic woman and an African-American male, each had a public defender in bad suits who where quickly reading a single file and asking the names of the defendants seemed lost. The prosecutors emphasized the difference in the burden of proof for the current case and a felony case. They got a doctor on the jury who agreed that 51% certainty was acceptable. I was also on the jury but was dismissed when I noted the clear imbalance of power, the doctor on the jury who believed 51% certainty was acceptable, the lack of a minority on the jury, and that science used a p-value of at least .05 to determine some degree of certainty. I was dismissed. The law is not for the poor even though I believed and thought by the time one got this far in a custody case there was reason to believe concern was necessary. It was a clear example to me of how justice is titled to those who can afford justice.
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@hd
p-values never test for certainty - they test for the proby that the null hypothesis is true - so the exact opposite.
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Given that the overwhelming majority of criminal cases end in a plea bargain, eliminating bias in juries will have only a minor effect on criminal prosecutions.
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@J. Waddell The question to be answered is whether experienced defense counsel's advice concerning a plea bargain offer would be the same for a white and non-white client; the prospect of biased jury selection for a non-white client is likely to play a part in the advice counsel gives, plea bargain or trial.
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@J. Waddell It would have a major effect on those who refuse or are not offered a plea bargain.
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@J. Waddell
So a lot of black defendants in Southern states accept plea bargains because they know white juries will automatically convict them. Elimination of biased juries will reduce the number of plea bargains, the severity of plea bargains or the severity of the original charges filed.
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Excellent report, but now the hard part begins. Prosecutors and judges have historically resisted any forms of public accountability, especially when issues of racial bias are suspected.
My suggestion is to make jury selection part of a larger package of criminal justice reform that needs to include new bail standards, more alternatives to incarceration and other reforms like restorative justice programs.
Police reforms should be part of this effort. They need to include eliminating marijuana use arrests, establishing mental health intervention teams where police would only play a back up role and radical interventions from civil government for homeless interventions.
These three categories of police work, marijuana, homelessness and mental crisis account for the largest percentage of police civilian encounters that turn violent.
Body cameras only record these incidents. We need to element them by removing them from police jurisdiction.
Then police and courts can focus on their real responsibilities, protecting life and property. None of this will end racial bias in the system. But it can significantly diminish it. Only then can the promise of equal protection under the law be achieved.
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We talk about the bias in peremptory challenges, but we should never lose sight of bias in prospective jurors. We cannot always rely on being able to show cause to challenge those prejudiced against one side or the other. (And even if we can, Professor Wright's study indicates that 20% more African Americans will be stricken by judges than whites.) Sometimes the only "facts" available to the prosecution and defense are the self-serving statements of the prospective juror.
Let me give an example. How many convictions would federal prosecutors have gotten in the South in the 1960s if they could not have used peremptory challenges to remove likely prejudiced prospective jurors from the Civil Rights prosecutions trials?
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@Jerry Norton And in the same scenario, how many wrongful convictions took place because of all white juries with all of their prejudices?
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Individual character counts more, and stereotypes matter less in our increasingly diverse society. The job of an attorney is to root out the likely stereotypes and biases of prospective jurors and to eliminate those that might harm the client and the case. Questions about wealth, neighborhood, education, experience with the police, etc. can be important. Prohibiting questions that might correlate with race is a misguided form of reverse discrimination.
Attorneys on each side of a case need to discriminate on many factors. Consider also the elected government officials discriminate on the basis of political affiliation of their staff that often correlates with race, sex, religion, etc. Indeed, the author suggests that blue states should adopt extreme jury selection reforms - as if blue state want to be fair and red states do not.
Like all affirmative action, race conscious remedies are discrimination, per se.
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It's interesting to think about how preemptory challenges affect the process for better and for worse. I agree with the author that these challenges can be used to stack the jury with white jurors who will potentially be biased against defendants of color. However, involvement with law enforcement is a critical third variable.
I once served as a juror in Los Angeles in a criminal trial of a Latino man. It was horrifying to hear how many of the potential jurors had experienced extremely negative encounters with law enforcement, including more than one person who had a family member seriously injured or killed by police. The vast majority of these potential jurors were people of color, and the vast majority of those who shared these types of stories were dismissed. How could anyone who has had a family member killed by a police officer be expected to consider the evidence in a trial involving police action from a solely rational perspective? I've never had such an experience, but I can't imagine that I would be able to do it. In truth, how can any human being be expected to consider something from a wholly rational perspective? None of us can - emotions have to play a part.
I would argue that the legal system is based on outdated ideas about how psychology works. So while I agree with the author that we should work to reduce racial bias in jury selection, I don't know that that will ultimately solve the issue of bias and emotional reasoning in legal decisions.
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"How could anyone who has had a family member killed by a police officer be expected to consider the evidence in a trial involving police action from a solely rational perspective?"
@Sarah
Presumably police are (and should be) more likely to kill those are willing or trying to kill other people.
Adjusted for the homicide rate, should one choose to do that, whites are 1.7 times more likely than blacks to die at the hands of police.
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Maybe juries should not be viewed or selected by the lawyers at all. Maybe prospective jurors could complete some kind of questionnaire that would ask questions relevant to different cases before the court at the time they are called, and as long as there are no conflicts, juries could be constituted almost at random. In our society, everyone has suffered something, but it's unpredictable what the effect of past events on present judgment will be. I suggest that a "jury of our peers" includes "peers with warts much like our own." Maybe spend less time curating a jury and more time preparing a good case. Every citizen should be encouraged to serve, and should be allowed to as much as possible. I'm not even sure that past criminal acts should prevent one from serving; talk about empathy!
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Juries should be a cross section of the community and picking 12 jurors randomly from the community is the best way to achieve that. Throwing out jurors based on how they answer question from the prosecution and defense is producing a panel that is no longer a cross section of the community. Other than questions to find obvious bias or conflicts of interest, I see no reason to engage in the winnowing that happens in our justice system. It is not really justice, it is which side - plaintiff or defendant - can be the most clever in skewing the panel towards their side.
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@Scott Werden Agreed. All that should be asked is whether the jurors have a personal relationship with anyone involved in the case, or if they have a financial interest of some kind.
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@Scott Werden
Random jury selection as described here might result in fairness when measured (somehow) in a large number of verdicts but justice is done on a case by case basis. If one jury is overwhelmingly pro plaintiff, for example, that would be prejudicial to a defendant even if the selection was truly random.
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@J. Benedict the important issue you raise could be solved in other ways too, for example by requiring only 10/12 (or maybe 18/20) for a criminal conviction.
The answer, advanced in law scholarship for decades, is abolition of peremptories. There is no constitutional right to them and their abuse has been well documented. These are analogous to discredited literacy tests for voting, used to disenfranchise voters. Challenges for cause obviously would remain available, and are unlimited.
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@Vanderpoel Not correct. At the time the Bill of Rights was enacted "trial by jury" included the use of peremptory challenges in its selection. Under standard constitutional interpretation, peremptory challenges are included in the right.
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As an academic who has done social science research, I have to wonder if there is a third (or fourth, or fifth) variable that helps explain prosecutors’ and judges’ disproportionate disqualifications of black jurors. For example, I would suspect that blacks have higher incidences of previous legal problems and incarceration, both of which would make them less appealing to prosecutors. (Of course, that higher incidence of legal problems might reflect other racial biases, but that would be of no consequence to prosecutors.)
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@Koyote Systemic bias against blacks leads to more arrests, more charges, more convictions and more hard sentences resulting in a decrease in black voter eligibility Many prosecutors are elected so the racial bias does have consequences.
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@TimToomey
Yes, of course you are correct, as I acknowledged in my parenthetical note. But not all arrests and incarcerations lead to felony convictions (and hence ineligibility for jury duty); and my point still stands, which is that prosecutors may not want jurors who come in with negative feelings towards the legal and law enforcement systems - regardless of their race. Yes, racial bias may still impact juries' racial makeups for the reasons you note, but it may not be as simple as racist prosecutors (or even prosecutors relying on race alone for their jury selections).
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@TimToomey
The black incarceration rate is five times higher - so the ol' 'systematic bias' canard starts to look suspect
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Mr. Wright, formerly a trial lawyer, is now a law professor and sits in an ivory tower above the fray. I wonder how Mr. Wright used his preemptory challenges as a trial attorney. Preemptory challenges are both a shield and a sword. As a shield they enable a trial lawyer to defend his client from a member of the jury pool determined to hide her bias. As a sword, they enable a trial lawyer to strike a member of the jury pool likely to favor the opponent.
A biased jury cannot render a verdict free of bias. Unless we can eliminate bias from our society, we cannot hope to eliminate biased jurors from our courts. We cam only hope that appellate courts can spot and overturn biased verdicts.
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Professor Wright, one experiment that might further your work is to have prosecutors, judges, and defense attorneys execute the jury selection process, as with Lady Liberty, blindfolded. Forbid any of the above from seeing any of the jury pool.
The above participants would have all of the written information required on each potential juror, except addresses.
This experiment could be conducted at minimal expense and done quickly. If the results show that, based on data that eliminates all vestiges of race, color, et al., jury selection is more representative of "a jury of my peers," it could be tried in actual jury selection with minimal expense and inconvenience to the courts.
Justice is supposed to be blind to individual and societal prejudices. Selecting jurors without seeing their skin color or dress might yield results similar to the British singing sensation Susan Boyle. Her looks, by the arbitrary standards of glamor in an industry built on glamor, suggested no talent.
Make jury selection dependent on the content of one's character, not the color of their skin or their address.
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@LinZhouXi
For justice, should the jury also be blinded to the trial participants?
Mr. Wright is correct regarding race. But the winnowing cuts both ways. The OJ trial is exhibit one. In criminal trials one would prefer black jurors. Johnny Cochrane served his client well. Some would say the outcome was not just. Another area where there is a difference is in civil trials with complex issues of fact. In those sorts of trials black jurors are favored by the plaintiffs, generally because they are more sympathetic even in the face of facts. Potential jurors with a lot of education are generally excluded. The recent 250 million dollar trial in San Francisco over Round Up comes to mind. A jury of Stanford professors would never have come up with that sort of verdict but, wisely, the plaintiff attorneys excluded them as best they could and the 8000 more claims against Bayer/Monsanto will be adjudicated by, hopefully, unsophisticated jurors with a good outcome for the litigants and their representatives. Medical malpractice plaintiff lawyers exclude educated jurors and the defense wants them. Doctors are generally excluded from all jury trials. The only fair solution would be to randomize jury selection over a broad pool, perhaps statewide. Neither side should be allowed to cherry pick. That simply leads to a higher rate of unfair outcomes on both the criminal and civil sides. Monsanto or a medical malpractice insurer or USAA can afford to lose millions but black men can end up in prison, or worse.
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@AS Anyone who doesn't want to "end up in prison" has the right to avoid committing crimes.
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@A So, what you're saying is the the jury aspect of a trial in this country is gamed by the defendant and prosecution in criminal trials and the plaintiff and defendant in civil trials? I fail to see how this is beneficial to the citizens of our nation. I can see how it benefits the lawyers (judges included).
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@me hah ... not as simple as one may think
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Any trial attorney uses preemptory challenges to remove people based on race, religion, age, gender, etc. All prohibited by law. And unless done in a clumsy manner, they get away with it.
Abolish the preemptory challenge entirely, reserve its use to the defense in a criminal case (with the prosecution to get a challenge if, and only if, the defense uses one), or limit it to a very low number (say three) for each side.
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