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The jury box in the Pershing County, Nevada courthouse.
(Ken Lund/Wikimedia)

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.

These issues have been well documented by the Equal Justice Initiative, who issued a report on Race and Jury Selection in 2010, which was widely distributed at the time, in media like the NY Times.

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.  

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.

(Continue reading below the fold)

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.

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.

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.

Three African-Americans tell stories of being excluded from capital case juries because of their race in North Carolina.

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.

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.

Bobby Ferguson trial: Controversy over lack of black jurors resurfaces.

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.

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.

All female jury,
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 began
Marissa 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.

For a more comprehensive history, I suggest "Without Peers: A History of Women and Trial by Jury," Part One and Part Two, by historian and lawyer Susan A. Lentz.

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).

Support the battle for justice for us all.

Stay informed by bookmarking groups like The Equal Justice Initiative.

Originally posted to Daily Kos on Sun May 20, 2012 at 08:00 AM PDT.

Also republished by Black Kos community, Barriers and Bridges, LatinoKos, Citizens Against Tryanny Cronyism & Corruption, and Southern Action.

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Comment Preferences

  •  Injustice all-white jury (86+ / 0-)

    was convened and acquitted Officer Andrew Blomberg, in Houston, TX
    See Acquitted, by Meteor Blades.

    Jurors declined to comment after the verdict.

    Community activists who were gathered in the hallway outside the courtroom yelled "Racism!" and "Injustice!" after hearing the outcome. "It is pathetic. It is unacceptable," the Rev. James Dixon of the Community of Faith Church said of the jury's decision. "This kind of expression says to me, to my children and to every black child in the city, 'Your life is not worth manure."'

    Quanell X, the community activist who had released the video of the alleged beating to the media, called the verdict "wrong" and criticized the lack of blacks or other minorities on the six-person jury.

    "They knew what they were doing with an all-white jury," he said.

    "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

    by Denise Oliver Velez on Sun May 20, 2012 at 03:03:26 AM PDT

  •  Excellent work here, Dee (12+ / 0-)

    Another example of the harm that racism causes to blacks today.

  •  I guess I"m cynical (10+ / 0-)

    because only a 16% boost is less than I'd expected.  And having a single juror of color eliminating that?  

    Maybe we are closer than I thought.

    Fantastic diary, of course.  How on earth do you find the time?

    Courtesy Kos. Trying to call on the better angels of our nature.

    by Mindful Nature on Sun May 20, 2012 at 08:09:45 AM PDT

  •  Justice like love is blind (9+ / 0-)

    but also like love,Justice is  also occasionally brain damaged.

    Doctor Mitt Romney Brain Sturgeon-The Operation was a success but the patient died, where's my fee?

    by JML9999 on Sun May 20, 2012 at 08:13:14 AM PDT

  •  excellent diary dee (10+ / 0-)

    those peremptory strikes, in combo with "jury experts" is bad enough, but even the for cause striking of potential jurors is bad.

    i got tossed once, the only time made it to voir dire, because judge chatted with me, liked me and said i was lawyer who would be objective.

    Earth provides enough to satisfy every man's need, but not every man's greed. Mohandas K. Gandhi

    by Patriot Daily News Clearinghouse on Sun May 20, 2012 at 08:16:45 AM PDT

  •  So (1+ / 0-)
    Recommended by:

    So despite the fact that this man has been acquitted by a jury, we are assuming that he is guilty regardless?

  •  My wife recently was eliminated... (19+ / 0-)

    ...from a jury pool by the prosecutor in a case in which an African-American male was charged with some assault. My wife was one of three non-white members of the pool of 50, and was the first one that the prosecutor used a peremptory challenge (after first suggesting that my wife "couldn't possibly be impartial in this case" and have the judge essentially call "bullshit" on that assertion).

    As my wife left the chamber, she heard the wife of the accused angrily comment to the mother of the accused: "I knew they'd toss her out quick!"

    When you are right you cannot be too radical; when you are wrong, you cannot be too conservative. --Martin Luther King Jr.

    by Egalitare on Sun May 20, 2012 at 08:20:54 AM PDT

  •  Thanks D (6+ / 0-)

    The radical Republican party is the party of oppression, fear, loathing and above all more money and power for the people who robbed us.

    by a2nite on Sun May 20, 2012 at 08:33:10 AM PDT

  •  gay jurors (12+ / 0-)

    I'm guessing openly gay people rarely get onto juries also.  America touts "justice for all" but rarely does it mean it.  The jury room is also often quite bigoted--strange how Americans don't understand being bigoted at home has negative consequences for the country.

    Apres Bush, le deluge.

    by melvynny on Sun May 20, 2012 at 08:36:56 AM PDT

  •  I forgot the SIGH?! Tired of this crap!! Nt (4+ / 0-)

    The radical Republican party is the party of oppression, fear, loathing and above all more money and power for the people who robbed us.

    by a2nite on Sun May 20, 2012 at 08:37:25 AM PDT

  •  "Jury of peers" SHOULDN'T have to (12+ / 0-)

    be mindful of race but with the history of this country, we simply can't trust that a jury of peers of a different race will be impartial.

    I weep for the slaves and I weep for their descendants, still cursed generations after the physical shackles were broken. Humanity has a long way to go. Racism is a terrible, terrible pox upon us all.

    "It's not enough to acknowledge privilege. You have to resist." -soothsayer

    by GenXangster on Sun May 20, 2012 at 08:40:56 AM PDT

  •  In 1949 women were not eligible for jury duty in (8+ / 0-)

    Fulton County, GA (Atlanta).  I don't remember now when that rule (after much resistance) was changed. One of the arguments against allowing women was that all the restrooms in the Fulton County courthouse were for men.

    As I recall there were usually one or two African-American men on juries where the accused was African-American. My memory is hazy here, but I got the impression that this was sort of "arranged" to give an appearance of fairness.  I'll have to look that up.  

    In those days all the local newspapers listed the race of anyone mentioned in a crime story. The adults I knew personally usually expressed relief when the victim and the accused were of the same race.  Many people were still edgy about earlier race riots.

    Great diary, as usual.

    "'s difficult to imagine what else Republicans can do to drive women away in 2012, unless they decide to bring back witch-hanging. And I wouldn't put it past them." James Wolcott

    by Mayfly on Sun May 20, 2012 at 08:51:30 AM PDT

  •  Jury selection is an art and, to a smaller extent, (5+ / 0-)

    ... a science. It is a process enabled by law, presided over by a human being but most significantly, SOMEwhat maneuverable by other human beings trying to achieve as much unfairness favoring their side of the case as possible.

    So viewing it as alchemy is, perhaps, the best analogy of all.

    Obama and strong Democratic majorities in 2012!

    by TRPChicago on Sun May 20, 2012 at 08:54:31 AM PDT

    •  Working with criminal defense teams (7+ / 0-)

      in the past - I got an inside view of  that art/science.

      We got my comrades off - on a very serious case that hinged on jurors being willing to question the veracity of police testimony.

      Interestingly, the juror who swayed the others - was an elderly Italian-American, who had owned a restaurant and was used to NYC cops "on the take".  

      The prosecution did not challenge his seating.  heh.

      We, the defense team - had done our homework, and took the risk.  Could not get anyone black on the panel.

      "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

      by Denise Oliver Velez on Sun May 20, 2012 at 09:02:34 AM PDT

      [ Parent ]

      •  How much of jury selection.... (1+ / 0-)
        Recommended by:
        Denise Oliver Velez hoping stereotypes are true?

        An elderly Italian-American juror believing cops are on the take.....or on the other side, a woman with a "radical" book sticking out of her bag, who is just reading it because it seemed interesting, and convicted the political defendants anyway (in the Chicago 8/7 trial).

        Then, there's my dad, who knew the cops who beat Johnny Gammage (black motorist killed by cops in the mid-90s outside of Pittsburgh), and never trusted a cop again.....and you DAs think a 70-something suburban white man would convict the defendant because they're black and the white cops are telling the truth?

        9-11 changed everything? Well, Katrina changed it back.

        by varro on Sun May 20, 2012 at 12:46:43 PM PDT

        [ Parent ]

  •  The Houston travesty, (6+ / 0-)

    that MB diaried and you point to, is infuriating.  My comment in MB's diary:

    While I get what you're saying about subduing a fleeing suspect, THE GUY WAS ON THE GROUND...  We have a problem with our police in this country.  I thought our police were trained to deal with fleeing suspects and that the training they recieved didnn't include kicking and stomping on a compliant suspect.  
    I don't see that justice was served in that trial.

    Koch Industries, Inc: Quilted Northern, Angel Soft, Brawny, Sparkle, Soft 'n Gentle, Mardi Gras, Vanity Fair, Dixie

    by ChiTownDenny on Sun May 20, 2012 at 08:55:46 AM PDT

  •  Great work, Sis (6+ / 0-)

    Since almost time immemorial in this country.  Nobody could identify the people who lynched the white abolitionist printer Elijah Lovejoy in southern Illinois in 1837. And here's precisely what the Constitution says, in Article III, Section 2:

    The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
    As for "jury of peers," that's from the Magna Carta, and it's much like the term limits in the Articles of Confederation: the framers knew about it and rejected it when they wrote the Constitution.

    -7.75, -8.10; All it takes is security in your own civil rights to make you complacent.

    by Dave in Northridge on Sun May 20, 2012 at 09:00:37 AM PDT

  •  Thanks. (13+ / 0-)

    I'm a defense lawyer by trade. Have been for more than 35 years. And I'm noting that on June 4, 2012, I will again find myself picking a jury, this time in Columbia County, New York, that will decide whether my African American client (and 2 others) burglarized and robbed a rural, occupied home in the middle of the night. It's far more complicated than that, that's the broadest outline.

    Will he have a fair, impartial jury of his peers? Only 2 percent of the jury pool is African American. So the chances of yet another all white jury loom large. And my ability to find those most unlikely to be unfair based on race and many other factors? Limited by time (the courts can make my questioning of jurors as short as 20 minutes per panel). Limited by denial (do jurors admit their biases aloud? not often). Limited by jurors' unwillingness to see and examine their shadow. Limited by my not wanting to offend someone who will actually sit, or worse, someone who will be offended by what it takes to remove someone else. In other words, the chances for error, failure, unfairness, bias, partiality, discrimination, injustice are gigantic.

    This is not pretty. And it's not fun. It's a battle fought several times daily in courtrooms across America. I wish the results were different.

    Please read and enjoy my novella, Tulum, available in soft cover and eBook formats.

    by davidseth on Sun May 20, 2012 at 09:05:05 AM PDT

  •  I've heard it called Jurymandering (9+ / 0-)

    As in gerrymandering a jury. It's a major issue that doesn't get enough attention. Especially with the advances in behavioral profiling there are now actually firms that will guarantee outcomes in trial or you don't have to pay them, based solely on jury selection. If it's not a high profile case, their record is actually quite astounding.

    Our laws haven't caught up with the science of behavioral analysis.  

    -1.63/ -1.49 "Speaking truth to power" (with snark of course)!

    by dopper0189 on Sun May 20, 2012 at 09:07:13 AM PDT

  •  A case in MN recently affirmed (9+ / 0-)

    that all heterosexual, cisgendered juries are fine and being LGBT is justisfiable grounds for a preemptive challenge.

    Of course this reaffirms that only straight, white, Christian men can function as objective jurors. In a case involving an LGBT victim, or an LGBT perpetrator of a crime, we can't possibly trust another LGBT person to be able to objectively weigh evidence and arrive at a dispassionate verdict of guilt or innocence. Everyone knows "they" will stick together and avert real justice. /snark

    "In the end, we will remember not the words of our enemies, but the silence of our friends."—Martin Luther King Jr.

    by Scott Wooledge on Sun May 20, 2012 at 09:07:43 AM PDT

    •  Yikes! shaking head (4+ / 0-)

      Thank you Scott for posting that!

      "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

      by Denise Oliver Velez on Sun May 20, 2012 at 09:13:20 AM PDT

      [ Parent ]

      •  It just hit my radar this week (3+ / 0-)

        and seemed sadly relevant. It's an offensive ruling. As a gay man, I am perfectly capable of convicting another LGBT person if I felt their guilt was proved, or acquitting a straight person if I felt the prosecutor of a LGBT complainent did not sufficiently prove their case beyond reasonable doubt.

        "In the end, we will remember not the words of our enemies, but the silence of our friends."—Martin Luther King Jr.

        by Scott Wooledge on Sun May 20, 2012 at 09:21:19 AM PDT

        [ Parent ]

        •  I wish I had known - I would have (4+ / 0-)

          included it in this piece.  Since I'm a New Yorker - it never would have entered my mind - since I have seen gay men on juries.

          It is utterly offensive!

          "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

          by Denise Oliver Velez on Sun May 20, 2012 at 09:27:06 AM PDT

          [ Parent ]

          •  It appears some states (4+ / 0-)

            like CA have forbidden this as a preemptive challenge. But the usual Federal mechanism, the Batson rule which prevents pre-emptive challenges on race and religion alone was found not to be applicable to LGBT people.

            The courts are a mixed bag obviously. Some apply some common sense, some not. The Ninth Circuit gave no weight to the idea Judge Walker's sexual orientation invalidated his Prop 8 ruling, fortunately. Apparently juries are different.

            "In the end, we will remember not the words of our enemies, but the silence of our friends."—Martin Luther King Jr.

            by Scott Wooledge on Sun May 20, 2012 at 09:36:59 AM PDT

            [ Parent ]

            •  was looking for NY law (2+ / 0-)
              Recommended by:
              bumbi, Scott Wooledge

              I know that there is a large number of preempts allowed - was not sure how many - but found this


              I will say that I watched the prosecution dismiss quite a few blacks and PR's on a case - and let a "nice white guy" on with no problem.


              I had done my homework - he was gay and very liberal, and was a key deciding factor in that case.

              "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

              by Denise Oliver Velez on Sun May 20, 2012 at 09:51:16 AM PDT

              [ Parent ]

  •  Sometimes those all white juries get it right. (2+ / 0-)
    Recommended by:
    Denise Oliver Velez, coffeetalk

    Like in the O.J. Simpson case.  Oh, wait a minute .....

    Seriously, as a trial lawyer who has tried over a hundred civil cases to a jury verdict, juries usually get it right, and I have rarely seen prejudice override a proper result.   It can affect the quantum of damages in a civil case, but they usually get the result right.  

    I like things the way they are.  That's why both sides get peremptory charges and why jurors can be excused by the Court for cause.  We don't need to start "stacking" juries, one or another, IMHO.

    I paid for MY silver spoon.

    by SpamNunn on Sun May 20, 2012 at 09:08:11 AM PDT

    •  Let's leave that case (4+ / 0-)
      Recommended by:
      bumbi, Mayfly, sethtriggs, rubyr

      out of this. Please.

      I'll tip you for your service as a trial lawyer, but since you haven't said where - or what type of community you function in - it does not mitigate my feelings about injustice in the system - which I have observed firsthand - not as an academic - but as part of several defense teams.  

      "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

      by Denise Oliver Velez on Sun May 20, 2012 at 09:18:49 AM PDT

      [ Parent ]

      •  I won't say it doesn't happen. It does, but we (0+ / 0-)

        depend on the adversary system of justice and the Courts to balance things out.   Sometimes, we need the appellate courts to make sure they do their jobs correctly.

        I'd like to leave that case out of it, but cases like that which involve jury nullification are just another form of prejudice which is no less bad than the type you have written about.  

        A jury of your peers does not mean a jury of people like you.  It means a jury of ordinary citizens.   If I committed a crime in Newark, I would not expect a white Central Jersey jury to judge me.  I would expect twelve fair minded people from Essex County to hear the facts and render an impartial verdict.   We don't tailor juries  by color or socioeconomic status - and we shouldn't.  That just stacks the deck the other way.

        By the way, it's very rare that an innocent person even gets charged with a crime, let alone convicted.  I'm not willing to change the entire system that we have to prevent the types of results that occur only slightly less frequently than a unicorn sighting.  

        I paid for MY silver spoon.

        by SpamNunn on Sun May 20, 2012 at 09:42:55 AM PDT

        [ Parent ]

  •  Hmmm. Completely impartial jury selection will (2+ / 0-)
    Recommended by:
    JeffW, coffeetalk

    guarantee all-white, all-male juries at least some of the time.

    That could be a problem, but there is another problem:
    If we presume that white males must be racist, we shouldn't be allowed to serve on juries at all.

    Which, of course, brings problems.

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Sun May 20, 2012 at 09:08:19 AM PDT

    •  There is no presumption that all white males are (6+ / 0-)

      racist.  There is clear evidence however - that if a community has large populations of poc's and none of them are on juries - that something is very wrong.

      "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

      by Denise Oliver Velez on Sun May 20, 2012 at 09:15:20 AM PDT

      [ Parent ]

      •  No presumption? You wouldn't know that from (1+ / 0-)
        Recommended by:
        Be Skeptical

        the way people toss around "all-white, all-male jury" as way to explain that a defendant was railroaded.

        There absolutely is a problem if minority populations are not represented in jury pools.  If juries (as opposed to any single jury) selected from those pools do not roughly represent the population, something is broken.


        There should also be at least a question of impropriety if any specific jury is all-white and all-male because it appears that  it was intentionally engineered to be that way.

        But, a fair and impartial selection process should not be able to skew the jury based on race.

        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

        by dinotrac on Sun May 20, 2012 at 09:26:47 AM PDT

        [ Parent ]

        •  I got your drift the first time. (6+ / 0-)

          I repeat - all white all male is a problem if it is clear that the only jury pool available is all white and all male.  Since I can't think of any part of the US with no could that be?

          Now - if by accident a jury somewhere is all white and all male doe that mean that they as individuals are racists?  


          End of this line of discussion.

          "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

          by Denise Oliver Velez on Sun May 20, 2012 at 09:40:26 AM PDT

          [ Parent ]

  •  What does this say about the Mockingbird..? (0+ / 0-)

    "Round up the usual suspects"

    by NanaoKnows on Sun May 20, 2012 at 09:09:06 AM PDT

  •  The other problem is the incentive for prosecutors (5+ / 0-)

    Is convictions. The fix is in.

    Not every prosecutor is "Jack McCoy" in law & order. Fair justice is theoretical, at best. Criminal justice is another agent of evil 1%  in America IMO.

    The radical Republican party is the party of oppression, fear, loathing and above all more money and power for the people who robbed us.

    by a2nite on Sun May 20, 2012 at 09:13:43 AM PDT

  •  Actually... (1+ / 0-)
    Recommended by:
    Denise Oliver Velez
    "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.
    Defendants are spending big bucks on scientific jury selection research (jury consultants) to study this vary issue (along with a few others).  Sadly, they do so to warp and corrupt the system - for example, for the express purpose of making the decision to keep minorities off of jury pools, rather than the purpose of strengthening our criminal justice system...
  •  Is it possible for a juror to object? (2+ / 0-)
    Recommended by:
    Denise Oliver Velez, bumbi

    Hypothetical question:   If a person were chosen to be on a jury and they felt it was not impartial, for whatever means, could they object?  I think I would try that if I were part of an all-white jury selected to try a person of color.

    A hundred years from now...Watering lawns will seem as crazy as throwing diamonds on our lawns; we're throwing the world's most important resource - clean drinking water - on the ground. - Univ. of TX Professor Michael Webber

    by politik on Sun May 20, 2012 at 09:22:25 AM PDT

    •  When the jury goes to deliberate, a juror can (2+ / 0-)
      Recommended by:
      Denise Oliver Velez, bumbi

      send a message to the judge via the bailiff if there is an impropriety. For example, if jurors were instructed not to read about the case and a juror brings in an article espousing the defendant's guilt or innocence.  

      I think it would be a mistake to assume the jury is not impartial before the trial started.  Once deliberations are underway if a juror says, "Well of course he/she is guilty--all those people are thieves" (or whatever) maybe a note to the judge would be in order.

      "'s difficult to imagine what else Republicans can do to drive women away in 2012, unless they decide to bring back witch-hanging. And I wouldn't put it past them." James Wolcott

      by Mayfly on Sun May 20, 2012 at 10:02:14 AM PDT

      [ Parent ]

  •  If one is "unstable" because they are single. Then (1+ / 0-)
    Recommended by:
    Denise Oliver Velez

    all single/ non-married persons should NOT be selected for jury duty - Period!

    If you are going to do an absurd assumption of facts not in evidence - why not go all the way.

    PLEASE Stop Mitt (the Pitts) Romney from stealing the Presidential Election!

    by laserhaas on Sun May 20, 2012 at 09:23:17 AM PDT

  •  Well done Denise. (6+ / 0-)

    This is something I feel very strongly about. Almost no one gets tried by a jury of their peers. It would make a huge difference if they did (as they should, as we are promised).

    The trial itself had been an ugly thing. Experiencing it was surreal, the players strutting on a stage, all self-important in their suits and ties, engaging in antiquated and often nonsensical ritual while presuming to mete out justice as if they would know it if it bit them. People speak of the law with a reverence it often does not deserve, forgetting that it is an artifice, a rough approximation of right and wrong cobbled together over many decades and centuries by a long series of committees and commissions comprised of horses asses and fools as like as not. Compared to NASA it is a farce. Thank what gods may be that we weren't relying on the law to get us safely to the moon and back.

    The law promises a jury of ones peers, but of the twelve average Alabama citizens on my jury, not one was a hippie or a member of the counter culture, so none of them were my peers. They might as well have been Ukrainians or Kalahari Bushmen for all of our cultural similarities. All the prosecution had to do was whisper hippies and heroin and they had twelve upstanding citizens of the State of Alabama raring to hang my young ass, which they proceeded to do...figuratively speaking. I suppose it could be argued that they actually cut me some slack. It hardly seemed like it to me at the time, but more about that later.

    excerpted from a work in progress

  •  No easy solution for a number of reasons. (3+ / 0-)

    First, the jury reflects the demographic of the jurisdiction in which it is tried.  It is no surprise that here in New Orleans, for example, you will see far more minorities on juries in Orleans Parish than you will in some suburbs that have larger white majorities.  I'm not sure how one remedies that.  

    Second, I'm sure you're aware that since Batson, theoretically, a prosecutor may not use race as the basis for a peremptory challenge.  However, other characteristics of potential jurors may clearly be used -- by both sides.  Typically, jurors fill out questionnaires, and are subject to questioning by good lawyers.  If a juror shows distrust for the police, that's a perfectly legitimate reasons for the prosecution to use a peremptory, just as a tendency to think very highly of the police -- that they wouldn't lie on the stand, for example -- may be a basis for a defense lawyer to use a peremptory.  Since those kind of views have a tendency to correlate to race, in a case where, for example, the credibility of a police officer is at issue, it's hard to see how you get away from a situation where the prosecution uses more peremptories against African Americans, and the defense uses more peremptories against whites.  It's not a race issue as much as a the pre-existing views of potential jurors -- a fact that both sides legitimately take into consideration (based on things like the jury questionnaires)  in using peremptories.  

    It's also true (and I know this from my involvement in trying cases) that certain demographics tend to have certain views.  There's no denying that.  And one of those demographics that can affect views is race.  I am not saying that all members of a race think alike, but certain views are more prevalent among some racial/ethnic groups than others.  Any jury consultant will tell you that.  When it comes to picking a jury, BOTH sides will use those views, and that typically results in BOTH sides using peremptories more heavily weighted to one race.  I've seen it in cases in Orleans Parish, where the jury pool is more balanced racially, in civil cases, at least.  Often the plaintiff strikes more whites, and the defense (especially if the defense is a big company) strikes more African Americans -- not strictly because of race, but because of other views that were revealed through the questionnaire that correlate in some way to race or ethnicity.  Remember, I'm not saying causation, just correlation -- the way that other demographics, like age, or income level, or education -- also correlate to certain views.  If it's a case where, for example, a married same-sex couple, and your views of them, may be central to a case (such as a survivor suing for damages for the death of his husband), the plaintiff is going to end up striking more elderly people, the defense more younger people, because those demographics correlate to views on same-sex marriage.    

    As another sort of superficial analysis, if you read all the accounts of the O.J. Simpson criminal case, the jury consultants on both sides told both sides that African American women  (more so than African American men, and far more so than either white women or men) were the most likely to go into the trial favoring acquittal.  The prosecution ignored that advice, and did not strike African American women because Marcia Clark felt that, in the past, she had had a rapport with African American women on other less "charged" cases.  The defense took that advice to heart, and the jury ended up with something like eight African American women.  If you look at accounts of the trial, there's evidence that race played a role in which jurors (after being seated) were "targeted" to be removed by which side, and some evidence that Judge Ito looked at the race of jurors being excused in trying to achieve some parity.  That was not because any of the parties were overtly racist -- all  just realized that, because of the issues that would be central in that case, race would correlate with certain pre-existing views.  

    Unless and until we reach a point in society where OTHER views that lawyers consider relevant in a potential juror are more evenly distributed across race/ethnicity, I'm not sure how one compensates for this issue, other than perhaps eliminating peremptory challenges and restricting lawyers on both sides to challenges for cause.  I don't think defense lawyers want to lose peremptories, and of course, you have to provide both sides equal latitude in choosing juries if you are going to have something approaching a "fair" trial.  You wouldn't want George Zimmerman's lawyers, for example, to have 20 peremptories, and the prosecution to have only 2.  

    Even if you completely eliminate peremptories, of course, you'll still have the issue of the race/ethnicity of the jurisdiction where the defendant is being tried.  

    •  I am not interested in discussing OJ. (3+ / 0-)
      Recommended by:
      bumbi, a2nite, commonsensically

      I am however interested in your comments about this part of the daary - since you are in NOLA.

      Such is the case in Louisiana.

      Juries wind up being composed of only those who support the death penalty, called a "death disqualification."

      "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

      by Denise Oliver Velez on Sun May 20, 2012 at 10:33:09 AM PDT

      [ Parent ]

      •  So you ignored 3/4 of my post? (2+ / 0-)
        Recommended by:
        Be Skeptical, VClib

        As for "death disqualification," it's not that jurors have to "support the death penalty."  And it's not unique to Louisiana.

        To serve as a juror in any case, you have to state that you can follow the law.  If you state that you can't follow the law, you are dismissed for cause.  

        In a capital murder case, the law says that one of the things jurors must consider -- if all the prerequisites are met - is the death penalty.  If a potential juror says that they could not consider imposing the death penalty under any circumstances -- i.e., no matter what the evidence is, no matter what the circumstances, I would never be able to impose the death penalty --  they are stating that they cannot follow the law, which requires that they consider -- not impose, but at least consider -- the death penalty.  So they are excused for cause.  

        A juror who says, I cannot say that I would never vote for the death penalty, I would certainly consider it, but I would be very reluctant to do it -- that juror is stating that he/she will follow the law, and is not excused for cause.  

        This is part of a larger principle that jurors must state, under oath, that they are willing to follow the law as jurors.  If they can't do that, they are excused for cause.  

        •  No. I am at home grading papers (1+ / 0-)
          Recommended by:

          and have no interest in discussing OJ Simpson - which oddly gets brought up whenever someone brings up racial jury inequity.

          It derails the topic.
          I answered the segment relating to this diary.

          If you look at the linked website - folks say they would consider it.

          Don't you think it stacks the deck if only jurors who are pro-death penalty can be seated?

          "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

          by Denise Oliver Velez on Sun May 20, 2012 at 12:51:44 PM PDT

          [ Parent ]

          •  It's a missatement to say "pro death penalty" (1+ / 0-)
            Recommended by:

            All the have to say is they would consider it --  NOT that they would impose it.  They can say, "I would consider it.  "  If asked if they would impose it, and they say, I don't know until I hear the evidence, that's fine.    The only way they get bumped is if they say, "I would not consider it under any circumstances, no matter what" of something along those lines.  

            As long as it is the law that the death penalty is a potential sentence for the case being tried, I don't think that "stacks the deck."  Putting someone on a jury who says "I will not consider a penalty that the law tells me to consider, no matter what" impermissibly stacks the deck against the death penalty -- since the jury needs to be unanimous, putting one jury who says that he/she will not consider a penalty that the law says must at least be considered effectively takes that potential penalty off the table before the trial even begins.  That's not a situation the law can tolerate.

            Before the trial begins, the jurors must at least be willing to say, I will follow the law and consider what the law tells me to consider, and not consider what the law tells me not to consider."  Examples of what the law says they CAN'T consider is the fact that the defendants does not testify.  If you had a juror who says, I know what the law says I can't consider it, but if the defendant does not testify, in my mind that will be evidence of guilt -- that juror would be excused for cause.  That's the same thing as a juror who says I won't even consider the death penalty under any circumstances, even if the law tells me I must.  

            The basic premise is that potential jurors, prior to trial, must agree to do what the law says.  

  •  I used to get (7+ / 0-)

    called up for jury duty a lot when we lived in SF. I was always went and was always weeded out during the  process. The lawyers ask a lot of questions that seem aimed at figuring out if your ideology and POV are going to be malleable to their case. I always assumed that I got knocked off early on as I'm liberal. Not really into punitive for punitive sake. The questions asked where telling and although I had no idea what the cases were it wasn't hard to figure out what they were looking for. Guess being a woman figured into it also.

    I had a strange one time job in SF for a firm of lawyers who were pretrial testing out their jury selection strategy. A panel of their legal staff and a physiologist  would ask me questions, abstract in a way, about how I felt about punishment, authority or the degrees of severity of different crimes. They also asked how I felt about wealthy people, art collectors, the importance of property/ownership, civil servants. I gathered the case was about art fraud. I was a Guinea pig for figuring out who and how they would eliminate jurors.

    It was an eye opener because I saw that they were testing how to select emotionally, ideologically, even politically, jurists that would acquit their client. I got the job 50$ an hour from a market research client of my husbands, they called it a 'market research' job. This to me makes the system an inside job, where the jury is selected not from the general public but for their biases, POV and seems to be extremely perverted as far as justice for all.

    Not to mention the fact that if you are rich enough you can buy yourself an ideal jury. The playing of people's bigotry fear and biases, does nothing but make a mockery of trail by your peers. Market research my ass, justice should not be a market. It also should be decided by people worst traits, biases, fears and prejudices.

    Thanks for the great dairy, pointing out the often overlooked aspect of who and how verdicts are decided. If you look at the prison population you can see what a farce it has become. I really liked the all women jury picture.          


  •  The study was not about jury selection. (1+ / 0-)
    Recommended by:
    Denise Oliver Velez

    I think people here, perhaps even the diarist, missed that.  

    It was about whether the presence of non whites in the jury pool, that is. prior to the selection of the jury for the trial, affected verdicts in trials pf black defendants.    It says nothing about whether blacks in the pool were excluded from the jury except to note that there was no evidence of attorney misconduct.  In the two counties studied, blacks represented less than 5% of the eligible jurors from which the pools are drawn.

    Points being made about exclusions of non whites jurors during the jury selection process may well be valid and important but it's not what this study was about.

    •  I am aware of what one study was about (3+ / 0-)
      Recommended by:
      a2nite, bumbi, sethtriggs

      but other links point to selection.

      The headline cannot describe the entire diary.

      "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

      by Denise Oliver Velez on Sun May 20, 2012 at 10:28:12 AM PDT

      [ Parent ]

      •  A better title: "Injustice and jury composition." (2+ / 0-)

        That encompasses the problems of juror pools and selection.

        I am curious.  In the Duke study, why do you think having at least one non white in the jury pool made a difference--not the presence of one on the six-person jury itself, but in the pool of 27?

        One other thing.  Can you really assume the 16% difference in the proportion of guilty verdicts reflects more injustice (i.e., more innocents found guilty)?  To what extent could this also be due to more guilty defendants being found innocent?

        Of course, perhaps even more likely, it may not be about guilt or innocence at all, just different standards of what is considered convincing evidence.

        I suppose the most accurate, but bloodless, title should be "Trial outcomes and jury composition."

  •  Powerful (2+ / 0-)
    Recommended by:
    Denise Oliver Velez, Sychotic1

    I always learn so much from your diaries.  Thank you for your thorough research on such an important topic!

    Minor correction:

    An all-white jury in Pottstown, Pennsylvania acquitted white teens of serious charges for the beating and death of Mexican immigrant Luiz Ramirez.
    The trial actually occurred in PottsVILLE, PA, which is the Schuylkill County seat.  Pottsville is a small, >95% white, economically depressed coal town in East Central PA.  PottsTOWN is a larger and much more diverse suburb of Philadelphia.

    Don't worry, PA also has a Lansdowne, Lansdale, and Lansford.  We're used to creating confusion ;)

    "as long as there last name is not obozo, i am voting for them." -- some wingnut blogger

    by SteelerGrrl on Sun May 20, 2012 at 10:22:21 AM PDT

  •  I have been on a couple of juries and kicked off (4+ / 0-)

    a few more.  I found that in the few juries I was in that the men tended to believe the prosecutions case even when there were holes in it (didn't support one or more points) and that the women tended to not want to be adversarial against the men, who were very pushy.

    Obviously, this never holds 100 percent true as I am a female and I am pushy as fuck all.

    "I watch Fox News for my comedy, and Comedy Central for my news." - Facebook Group

    by Sychotic1 on Sun May 20, 2012 at 11:03:12 AM PDT

    •  Your last sentence deserves a rec all on it's own! (3+ / 0-)

      A very important oft' overlooked topic, I know more
      about what happens when they end up in jail.
      The deep, deep institutionalized racism is
      horrifying, and I didn't see the half of it.

      "The devil laughs when the poor give to the rich," Benvenuto Cellini, goldsmith, sculptor 1500-1571

      by bumbi on Sun May 20, 2012 at 11:35:37 AM PDT

      [ Parent ]

  •  I agree (1+ / 0-)
    Recommended by:
    Denise Oliver Velez

    I am not in favor of "all anything" with regard to juries.

    What is the remedy?

    •  Oh, and I forgot to present this (1+ / 0-)
      Recommended by:
      Denise Oliver Velez

      I have lived in my county since 1978.  I am a registered voter but I have never been called to jury duty.  I'm a registered democrat and my district is predominantly republican.  

      Does this play a part in jury pool selection?  Enquiring minds want to know.

    •  I don't have solutions (2+ / 0-)
      Recommended by:
      tardis10, a2nite

      other than ones presented by people that know far more about the system than I do.

      EJI offers detailed recommendations for ensuring full representation of people of color on juries throughout the United States within five years. These recommendations include:

      • Dedicated and thorough enforcement of anti-discrimination laws designed to prevent racially biased jury selection must be undertaken by courts, judges and lawyers involved in criminal and civil trials, especially in serious criminal cases and capital cases.

      • Prosecutors who repeatedly exclude people of color should be subject to fines, penalties, suspension, and other consequences to deter the practice. Community groups can hold their district attorneys accountable through court monitoring, requesting regular reporting on the use of peremptory strikes, and their voting power.

      • The criminal defense bar should receive greater support, training and assistance in ensuring that state officials do not exclude people of color from serving on juries on the basis of race.

      • States should strengthen policies and procedures to ensure that racial minorities are fully represented in jury pools. State and local governments should expand their jury lists and use computer models that weight groups appropriately.

      • The rule banning racially discriminatory use of peremptory strikes announced in Batson v. Kentucky should be applied retroactively to death row prisoners and others with lengthy sentences whose convictions or death sentences are the product of illegal, racially biased jury selection but whose claims have not been reviewed because they were tried before 1986.

      "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

      by Denise Oliver Velez on Sun May 20, 2012 at 12:40:12 PM PDT

      [ Parent ]

      •  Okay, thanks (1+ / 0-)
        Recommended by:
        Denise Oliver Velez

        Doubt this wil be the case in our country any time soon, however.  How difficult would it be to monitor and enforce?  Terribly, I'm thinking.

        •  Can I say this? (1+ / 0-)
          Recommended by:
          Denise Oliver Velez

          Denise, thank you for responding to and/or acknowledging people's posts to your diaries.  I've spent over a year here as an "observer" not getting involved in the conversation and I often wondered why just so may of the front page diarists didn't respond or acknowledge the posts made for and against their presentations.  I've noticed that you do this and I applaud you for that.  

          Thank you for the "interaction".

          •  you are welcome. (1+ / 0-)
            Recommended by:

            Many front pagers who are staff have a slew of responsibilities  - hence no time to spend in making responses.  

            The "culture" I come from here on Dkos is from Black Kos where we have a warm and lively exchange twice a week, and I would not be comfortable doing things differently on this side of the page.

            Plus - the reason I got involved in blogging at the advanced age of 60 a few years ago was the conversation.
            I live in a fairly isolated place, and simply interacting with students twice a week is not what I want.  Finding Daily Kos was a blessing -even those moments of disagreement on here are interesting.

            So thank you for being open to having a dialogue!

            "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

            by Denise Oliver Velez on Sun May 20, 2012 at 01:51:27 PM PDT

            [ Parent ]

  •  This is a great diary and casts much needed (2+ / 0-)
    Recommended by:
    Denise Oliver Velez, a2nite

    light on a very disturbing issue.  Until there is equal justice for all, justice is just an empty word.  Really well done.  Thank you.

    "Too often we enjoy the comfort of opinion without the discomfort of thought." - John F. Kennedy

    by helpImdrowning on Sun May 20, 2012 at 02:40:19 PM PDT

  •  Truly Impossible (0+ / 0-)

    To find a jury of my peers.Even laughable at best . My case may not possibly have a racist bent,Just how could anyone could of lived my life since I left South East Asia.A normal citizen jury could be the best they could come up with truthfully

  •  I'm inclined to blame lawyers just as much.. (0+ / 0-) all white juries.

    If a terrible lawyer is on the case, the jury will often have no choice but to go against them.

    I'd be very interested in seeing this same study done, but analyze the minority status of the prosecution and defense lawyers as well.  It's not difficult to imagine a prosecutor throwing a softball in a case against a white person who killed a minority.

    Either way it goes, it's all pretty disgusting.

    Would the courts ever change to the point that they would conceal the ethnicity of defendants in cases?  That would be tough to do.

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