Growing up, I seem to remember being taught or hearing the phrase about a right to a trial by a "jury of your peers." I didn't know then that nowhere in the constitution are "peers" mentioned, only the word "impartial." I got taught black history at home, not in school, and my parents discussed the news of the day at the dining table, so I was aware that in many parts of the U.S. we couldn't vote, and the phrase "all-white jury" was often attached to stark injustices taking place. I will never forget the 67 minutes it took for an all-white, all-male jury to acquit the murderers of Emmett Till.
I was eight years old in September of 1955. Over half a century later, blacks, other people of color, and women are still being kept off of juries by the use of several methods, including peremptory challenges and various limitations to the jury pool.
So though the Constitution's Sixth Amendment speaks to impartiality, the question then becomes "can an all-white, all-male jury in the U.S. be impartial?" We have to examine what role discrimination plays in both jury selection, and trial outcomes.
And now Duke University has issued a study demonstrating that all-white jury pools in Florida convict black defendants at a 16 percent higher rate.
Juries formed from all-white jury pools in Florida convicted black defendants 16 percent more often than white defendants, a gap that was nearly eliminated when at least one member of the jury pool was black, according to a Duke University-led study. The researchers examined more than 700 non-capital felony criminal cases in Sarasota and Lake counties from 2000-2010 and looked at the effects of the age, race and gender of jury pools on conviction rates.(Continue reading below the fold)
The jury pool typically consisted of 27 members selected from eligible residents in the two counties. From this group, attorneys chose six seated jurors plus alternates. "I think this is the first strong and convincing evidence that the racial composition of the jury pool actually has a major effect on trial outcomes," said senior author Patrick Bayer, chairman of Duke's Economics Department.
"Our Sixth Amendment right to a trial by a fair and impartial jury of our peers is a bedrock of the criminal justice system in the U.S., and yet, despite the importance of that right, there's been very little systematic analysis of how the composition of juries actually affects trial outcomes, how the rules that we have in place for selecting juries impact those outcomes," Bayer said.
Bayer, chairman of Duke's Economics Department, explains the importance of the examining jury composition and how it affects trial outcomes.
Some legal efforts to reverse system inequities have succeeded, at least in theory. One such instance is the North Carolina Racial Justice Act.
Claims of racial bias in cases brought under the RJA are supported by a new, comprehensive study of the death penalty in North Carolina by researchers from Michigan State University (MSU) and other, similar studies in North Carolina and southern states.The GOP in North Carolina is vowing to continue its fight to overturn the Act. So every small step in the direction of justice is fought against by Republican Teahadists.
These studies show:
Racial Bias in Jury Selection: The MSU study of jury selection found significant evidence that North Carolina prosecutors select juries in a racially biased manner. Prosecutors used peremptory strikes to remove qualified African-American jurors at more than twice the rate that they excluded white jurors. Of the 159 inmates now on death row in North Carolina, 31 were sentenced by all-white juries, and another 38 had only one minority on their sentencing juries.
Racial Bias in Prosecutorial Charging Decisions and Jury Sentencing: The MSU study of capital charging and sentencing found that those who kill whites are more likely to get the death penalty than those who kill blacks. The MSU study found that a defendant is 2.6 times more likely to get the death penalty if the victim is white.
Three African-Americans tell stories of being excluded from capital case juries because of their race in North Carolina.Lest you think this is simply a southern problem, the issue of jury selection and exclusion made headlines in Detroit last week. In a city with a predominantly black population, jury pools do not reflect those percentages.
The North Carolina Racial Justice Act was passed in 2009 to protect capital cases from racial bias. Now, Legislators are attacking the Racial Justice Act saying it isn't necessary. But in North Carolina, racial bias in the justice system is alive and well.
When blacks do show up for jury duty they are often dismissed, like the case of Sherry Willis, who was dismissed because she has tattoos (of her children's names) and did not "make eye contact" with the prosecutors.
An all-white jury in Pottstown, Pennsylvania acquitted white teens of serious charges for the beating and death of Mexican immigrant Luiz Ramirez.
While much of the focus on juries and injustice, current and historical, has been on black Americans, we have a long history of "justice" excluding all groups with little or no power.
In the early days of the country, only white male property owners could vote. In most localities, eligibility to serve on a jury was limited even further because of what is called the “key man” system of jury summoning. Under that system, the jury commissioner summoned only “key men,” that is, certain white male property owners whom the commissioner thought were particularly suited to jury duty because of intelligence, wisdom, and good judgment. The subsequent history of jury summoning consists of the gradual replacement of the key man system with a much more inclusive system (although the key man system was not totally put to rest until the 1960’s)Rarely discussed in history books, the plight of Native Americans for voting rights, and the rights to serve on juries, has been a travesty.
In American Indian Voting Rights, Ojibwa reports, "Indians were not allowed to serve on juries in Colorado until 1956 and tribal members on reservations were not allowed to vote until 1970."
Historian Clare V. McKanna, Jr. explored this early history in an area with a large native population—Arizona. Her book, White Justice in Arizona: Apache Murder Trials in the Nineteenth Century, presents several cases of injustice against the Apache in the context of a state and federal legal system set up to exclude Indian rights to a fair trial.
Apache Murder Trials in the Nineteenth Century
Clare V. McKanna, Jr.
Conquered and forced from their lands by white outsiders, Apaches found their customs and methods of maintaining social control dramatically at odds with a new and completely alien legal system, a system that would not bend to integrate Apache or any other Native American culture.Through case studies of these very different murder trials, White Justice in Arizona probes the federal and state governments’ treatment of America’s indigenous populations and the cultural clashes that left justice the greatest casualty.“Clare V. McKanna Jr. analyzes the matrix of race, criminal law, and justice in nineteenth-century Arizona and finds fair trial for Indians absent.She is also the author of The Trial of "Indian Joe": Race and Justice in the Nineteenth-Century West.
Lest you think that all this is ancient history, an all-white jury played a major role in a case that went to the Washington Supreme Court: State of Washington v. Wanrow.
Yvonne Wanrow, a Colville Native American from the Spokane, Washington area, shot a 62-year-old known child molester, William Wesler, after he attacked her son. Wesler had also previously raped her babysitter’s seven-year-old daughter, giving her a sexually transmitted infection.
Wanrow was convicted by an all-white jury on Mother’s Day in August 1973 of second-degree felony murder and first-degree assault for the fatal shooting of Mr. Wesler and for wounding his drinking companion. She was sentenced to twenty years in prison.
Yvonne Swan (Colville) speaks at the 2009 AIM Fall Conference in San Francisco. She discusses termination, relocation, and the events surrounding her famous trial in the early 1970s.Yvonne Swan (Wanrow) has now become an advocate for justice. Had it not been for the Center for Constitutional Rights' fierce advocacy on her behalf, she would still be yet another faceless, invisible Native America behind bars.
Let us not forget women and juries.
Many of you are familiar with the classic film 12 Angry Men (1957) starring Henry Fonda and the scene during the jury deliberation. I remember that film well, and at age nine it didn't occur to me to ask why only men? It did later.
I didn't know how long it took in our history for women to be legally allowed to serve on juries, nor did I realize that women were not automatically part of a jury pool.
Los Angeles, 1911.
(Library of Congress)
This panel of female jurists was empowered in 1911.
At the time of the trial, American women were still eight years away from being able to vote in national elections. But California granted suffrage in a special election on October 10, 1911 -- just 23 days before the the trial beganMarissa N. Batt covers some of this history in Just Verdicts? A Prosecutor Extols Jury Service for Women.
For decades after women won the right to vote, states retained the power to discourage women from jury unservice. So, from 1920 onward, women’s rights advocates — recognizing that participation in the justice system is both an entitlement and an obligation — fought to open jury service to women. Their battles were pitched in the legislatures and in the courts.
In 1947, the United States Supreme Court heard the case of Fay v. New York, in which the state’s use of a “blue ribbon” jury was challenged. On such juries, women were granted a special exemption not to serve if they chose — a choice not available to men. In Mr. Fay’s case, only one woman served on the jury at his conspiracy/extortion trial. Justice Robert H. Jackson, in delivering the opinion of the court, complained about “the cryptic words of the 14th Amendment,” but nonetheless concluded that New York state had not violated either its due process nor equal protection clauses. In his dissent, Justice Frank Murphy, joined by Justices Hugo L. Black, William O. Douglas and Wiley B. Rutledge, argued that the amendment’s equal protection clause does prohibit states from “convicting any person by use of a jury which is not impartially drawn from a cross-section of the community. That means that juries must be chosen without systematic and intentional exclusion of any otherwise qualified group of individuals.”
Fast-forward to 1961 and the U.S. Supreme Court case Hoyt v. Florida. Ms. Hoyt was convicted of the second degree murder of her husband by a jury composed of 12 no-doubt-angry men, convened under a Florida statute that read: “[No] female person shall be taken for jury service unless said person has registered with the clerk of the circuit court her desire to be placed on the jury list.” As you might imagine, a paucity of women in Florida “desired” to serve as jurors.
One final jury selection issue I'd like to discuss is the exclusion of people who may be opposed to the death penalty from capital murder trials.
Such is the case in Louisiana.
Juries wind up being composed of only those who support the death penalty, called a "death disqualification."
The I Want to Serve website has video testimonials and background information on this issue. They cite Justice Stevens:
“Of special concern to me are rules that deprive the defendant of a trial by jurors representing a fair cross section of the community. Litigation involving both challenges for cause and peremptory challenges has persuaded me that the process of obtaining a “death qualified jury” is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction. The prosecutorial concern that death verdicts would rarely be returned by 12 randomly selected jurors should be viewed as objective evidence supporting the conclusion that the penalty is excessive.”Justice Stevens, Baze v. Rees (2008).
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