Three men were convicted of the murder of Ahmaud Abery, who was jogging through his neighborhood by 12 Brunswick jurors on November 24th. The men, all white, claimed that they shot and killed Ahmaud Arbery, a Black man, in self-defense.
This verdict arrives despite efforts to tip the scales of justice in the murderers’ favor. Eleven of 12 jurors were White, and that racial composition wasn’t accidental. The defense dismissed 11 potential Black jurors during jury selection. Judge Timothy Walmsley refused to reopen the case against the prosecution for these dismissals. He acknowledged that they were likely to be rooted in racism, but he did not do anything about it.
“The jury should represent the community,” says Stephen Bright, a lawyer and professor at Yale University. “And a community that’s 27 percent African American should have more than one Black person on the jury.”
About 550 miles north, in Charlottesville, Virginia, a Black juror in the trial against white supremacists who organized the deadly, 2017 “Unite the Right” rally declared himself unconcerned with “racism against white/Caucasian people.” The defense dismissed the juror but didn’t do the same for white jurors who answered similarly. The prosecution challenged the dismissal, just as in the Arbery trial. The judge, just like in the Arbery trial refused to act.
These judges were the target of fury almost immediately. However, many activists and legal professionals believe the problem is not with the judges as such but with the law.
“None of the egregious things that have happened in any of these trials are outside of the bounds of American law,” says Cat Brooks, co-founder of the Anti Police-Terror Project (APTP). Scott Roberts, senior director of criminal Justice Campaigns for Color of Change agrees. He points out the case of Judge Olu Stevens2016: An all-white jury was thrown out on racial grounds by a man named “He” “He recognized that discrimination was happening, … and he was suspended for 90 days.”
Racial discrimination in high-profile cases, such as the Arbery murder case and the Unite the Right Civil suit, is a reflection of the daily reality within the United States criminal law system. Although the jury in both trials ruled against white defendants, it is not a guaranteed outcome.
“These are extraordinary cases. What we really ought to worry about is the day to day,” Bright says. “The criminal justice system is the part of society least affected by the civil rights movement. We still have all-white juries today, in 2021, this many years after the Civil War.”
A Shallow Jury Pool
The racialized, skewing of jury pool starts early when jurisdictions send out summons in the mail. You are less likely to receive a summons if you’re a person of colour than your white neighbors.
According to the Equal Justice Initiative (EJI), most jurisdictions use drivers’ license records and voter registration to develop a list of potential jurors. But many people who are impoverished or live in the city do not have drivers’ licenses and are not registered to vote. Both of these processes are time-consuming and require documents that many Black residents cannot afford due to structural inequality.
Black people are also at greater risk. nearly three times as likely to have a felony conviction on their record, which prevents voter registration in the vast majority of the U.S. “If you’re barred from registering to vote, then you’re barred from juries by default,” Color of Change’s Roberts says. “Given that our criminal justice system is so racially biased, … this is a vicious cycle.”
Black people and people of color face disproportionate economic hardships. Those who make it to the jury pool face additional obstacles. Low-income people tend to move more frequently, which means summons are often sent at outdated addresses. Many cannot afford to leave work to serve on jury duty. This is a job that pays less than the minimum wage in 49 US states. The result: a jury pool that skews white and wealthy — hardly representative of the overall community.
These jury pools with wealthier jurors have a tangible effect on trial results. A University of Chicago studyCompare jury pools made up of less than 22 % white men to those made up of more than 39%. Jury pools with fewer white men convicted Black defendants 12 per cent less often.
Dismissed for Cause
Racial discrimination continues after potential jurors arrive in the courthouse. Lawyers for both the prosecution and defense get to question the jury in a process called “Voir Dire,” and can then dismiss potential jurors “for cause” if they believe the juror to be biased.
This stage is where biases of individual judges can have a significant impact. Judges decide what questions each side can ask of potential jurors and ultimately rule on whether a given “for cause” reason is sufficient. Because 80 percent of federal judges are whiteThis bias can be a major problem.
For example, in Arbery’s murder trial Judge Walmsley threw out several of the defense’s most outlandish questions, such as, “Are all white people who use the n-word racists?” and “Is the Confederate flag a symbol of racism?” But he did allow the defense to ask whether potential jurors support Black Lives Matter or think the U.S. criminal legal system is biased against people of color.
The 16-page questionnaire for potential Unite the Right jurors also asked about Black Lives Matter, along with their opinions of “antifa,” support of civil rights groups such as the Anti-Defamation League or the ACLU, and whether they regard statues of Confederate generals as symbols of racism. If the defense doesn’t like an answer, they can immediately dismiss that juror. This exact scenario was described above. Juror 197A Black man who, according to the defense did not display enough concern for racism against white people was dismissed from duty.
Many jurors are excluded because of the bias allegations against police. Due to the systemic racism in the U.S. criminal justice system, Black people and others of color have more unpleasant experiences dealing with police. These experiences lead to both sides claiming that the juror of color cannot be impartial because they want to call police to the witness stand.
“It’s almost as if the system says, ‘Well, we get to discriminate against you again because you’ve been discriminated against in all these other areas of the system,’” says Lila Silverstein, a lawyer with the Washington Appellate Project, an organization that helps people who cannot afford legal representation.
The Peremptory Strike: Anything goes
If a legal team that desires and fails to achieve an all-white jury during the “for cause” stage of questioning, they have a final weapon in their arsenal: the peremptory challenge.
Each side of a case has a limited amount of peremptory challenges which they can use to dismiss a juror for any reason — that is, unless that reason is racial bias. 1986 saw the Supreme Court rule in Batson v. KentuckyPeremptory problems cannot be attributed solely to race. There must be another reason. The resulting precedent established the “Batson challenge,” in which a legal team can challenge the other side’s peremptory dismissal of a juror if they believe that dismissal is based on race.
So how did the defense team for Arbery’s accused murderers get away with eliminating 11 of 12 potential Black jurors, even though Judge Walmsley acknowledged a clear racial motivation for these eliminations?
Because “equal protection under Batson has utterly failed,” Silverstein tells Truthout.
The bar for maintaining a high standard of living is set BatsonThe challenge is almost too difficult. The peremptory strike side must provide a reason for their decision other than race. Because peremptory strikes can be based on anything other than race, the given reason can be anything: a haircut the legal team does not like, a rolling of the juror’s eyes during the proceedings, or even an earring.
“Those are all reasons that have been upheld,” Bright says. “Prosecutors have lists of reasons. So they don’t even have to have a real reason, they just look down and read a reason. And almost always, the judge upholds it.”
Judges tend to reject this because of part of it BatsonThe problem is that they legally have to accept any excuse. But that’s not the only motivation behind the dismissals.
“Most judges have to deal with these prosecutors day in and day out,” Bright says. “They may be good friends. [The judge] is not going to make a finding that the prosecutor intentionally discriminated…. I mean, that’s serious business to accuse someone of that.”
“Jury Selection Is Everything”
Discrimination against potential jurors of color disenfranchises the individual and erodes faith in the legal system, Washington Appellate Project’s Silverstein says. It violates the constitutional right to a jury of one’s peers. Worse, it can materially impact the fate of those who are accused of a crime.
As Bright puts it, “Many people think, with many cases, that [jury selection] is everything.”
Sentencencing and conviction rates are also affected by the racial composition on juries. According to the EJI, “research demonstrates that white jurors are more likely to view Black defendants as coldhearted, remorseless, and dangerous.” A Duke UniversityA study showed that juries made up of all-white people convict Black defendants 16 times more often than juries with one Black member.
Sentencencing can also be affected by the composition and composition of the juries. A National Bureau of Economic Research studyThe probability of a Black defendant getting a life sentence falls by 67 per cent when the jury is representative of the community’s racial composition.
Statistics show that juries with different backgrounds do a better job. A 2006 studyIt was found that juries with diverse backgrounds are more likely to consider racial bias during deliberation. “They deliberate longer, they’re more careful, they can make fewer factual errors and they follow the judge’s instructions better,” Silverstein says.
A Jury of One’s Peers
“Our jury selection process needs to be completely overhauled,” Brooks says.
But her police watchdog coalitionthey have to deal with the legal fallout from a racist system. “We provide trauma support for Black, Indigenous, and other people of color.” The group works hard to keep individuals out of the criminal legal system through initiatives like MH First, a hotline for mental health and an alternative to calling the police. Projects like this one help prevent people from ending up in the hands of a flawed legal system — or worse, shot by police.
Color of Change, a national organization that focuses on systemic racism from multiple angles acknowledges the difficulty of removing entrenched biases in the U.S. legal process. “This has been one of the harder things to take on,” Roberts says. “At the end of the day we need to be able to challenge these juries in the moment”
Washington State recently made it possible to accept this type of challenge. General Rule 37, which was adopted in 2018, makes it easier for peremptory strikes to be challenged. California has recently followed California’s lead.
“Unlike the Batson rule, [Rule 37] does not require proof of intentional discrimination in order for a judge to disallow the removal of a juror,” Silverstein explains. Instead, all the challenger has to do is show that an “objective observer” would think that race factored into the peremptory dismissal.
The law takes on “for cause” dismissals as well. Rule 37 says that negative experiences with the police are not enough to exclude a potential member of the jury. Lawyers must also present behavioral reasons for exclusion prior to the hearing. “If you think that a juror is not paying attention during the questioning phase, you have to raise the issue when you see it,” Silverstein says. No more looking at a list to dismiss someone. The lawyer must be proactive in establishing their concerns.
Arizona will take a different approach in 2022 and eliminate peremptory strike altogether. While this is, according to Silverstein, “better than doing nothing,” lawyers are skeptical about whether this will actually solve the problem. “Most trial lawyers … think that it’s important to have peremptory challenges,” says Silverstein. “They say they want to have the power to be able to excuse jurors who they think will be unfair, even if the judge disagrees with them.”
Bright agrees. Bright agrees. “I think we’ve seen in these cases that the judges are not as down the middle as we would like,” he says.
While these fixes could make jury selection — and judicial outcomes — more equitable, the problem goes far deeper.
Although it may reduce the disparities between the conviction rates of Black and White citizens, it will not eliminate bias that causes the discrepancy. It will not transform a carceral state. imprisons a larger percent of its populationUnlike any other country on the planet. It does not change the fact police forces exist. arrest Black people at a rate five times higher than white people. It will not reverse centuries of oppression, systemic racial disparities in wealth and income.
Brooks suggests that the criminal justice system needs to be reformed in a more comprehensive way.
“It’s about looking at how the court system was built to uphold race-based capitalism and white supremacy,” Brooks says, “and having the courage to look at those systems deeply, and reconfiguring them so that they operate in a more equitable, humane, just way.”