The Flawed Nature of Juries

Featured image: Chicago residents protest the Chicago Police Department as a result of their involvement in the death of Laquan McDonald.

Tuesday, 16 October 2018, Chicago, IL – In October 2014, a 17-year old black teenager named Laquan McDonald was shot 16 times by Jason Van Dyke, a white Chicago police officer. A graphic dash-cam video released one year after the shooting documented the incident. McDonald was walking down a busy road, holding a knife. As he turned away from the police cars, Van Dyke shot and killed him, seemingly for no reason.

In response to the footage, the city of Chicago swelled with protests against racial discrimination and police violence. The Chicago police chief and Cook County state’s attorney were both fired, and a Department of Justice investigation discovered widespread brutality and racial discrimination within the Chicago Police Department.

For Van Dyke’s trial, a 12-person jury of peers was selected, as usual. But there was only one black juror on the jury, even though the population of Cook County, Illinois, is over a quarter black. A majority white jury was widely expected to acquit, if not be less harsh on, a white defendant. This was not the case. The jury found Van Dyke guilty of second-degree murder and aggravated battery, the first time a police officer in Chicago had been convicted of murder in over five decades.

But for most cases, the story is more grim. And in this post, we are going to look at some of the cases that went the other way due to glaring racial disparities in our judicial system.

How juries are formed

Potential jurors are selected from what’s known as a jury pool, usually a list of registered voters or licensed drivers. Once potential jurors have been selected, a process known as voir dire follows. Voir dire is a French phrase meaning “to speak the truth”. The process involves lawyers from both sides questioning potential jurors. The purpose of voir dire is to filter out potential jurors that might harbour bias against the defendant or plaintiff/prosecution. If a lawyer has good reason to believe a juror may be biased, they can obtain permission from the judge to dismiss the juror with cause.

Additionally, there is almost always what’s called peremptory challenges, a dismissal of a potential juror without cause. There is a limited number of peremptory challenges awarded to both sides. This is where things get pretty controversial, because even though Batson v. Kentucky (1986) determined that lawyers may not use their peremptory challenges to discriminate on the basis of race or sex, they still do and everyone knows it.

Race and juries

The racial composition of a jury determines virtually everything about the verdict. Unsurprisingly, in cases with black defendants and all-white juries, the jury is harsher, makes worse judgments, makes more inaccurate statements, and discusses less of the case facts. And if that black defendant were to receive a death sentence, there is a 72% chance in all-white juries, 43% chance with one black juror, and 36% chance with two black jurors.

In other words, if the majority of the jury is the same race as the defendant, the punishment is less harsh. And that matters. A big reason O.J. Simpson was acquitted of murder was because the jury that rendered the verdict had nine black members out of 12.

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O.J. Simpson during his trial

Much less well known is the case of Emmett Till. In 1955 in Mississippi, two men named Roy Bryant and J.W. Milam were accused of kidnapping and subsequently lynching a black boy named Emmett Till. A few days after the accusation, Till’s body was found at the bottom of a river, beaten, shot, and tied to a cotton gin with barbed wire.

Now just to be clear, Bryant and Milam were arrested and charged with murder. Multiple witness had reported the two men kidnapping the boy and had seen the back of Milam’s truck “dripping with blood”. Despite the witnesses and evidence (i.e. the dead body found at the bottom of the river), a jury of 12 white men rendered a verdict after a paltry one hour and five minutes of deliberations. The two men would walk free.

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Bryant and Milam

To add insult to injury, 50% of the juries that delivered death sentences in Houston County, Alabama between 2005 and 2009 were all white. The other 50% of juries had only one black juror, even though the county is also over a quarter black.

Batson v. Kentucky (1986)

Amazingly, it wasn’t until 1986 that discriminating against jurors on the basis of race officially became illegal. That year, a federal lawsuit was filed after a prosecutor had used his peremptory challenges to remove all of the black people from the pool of potential jurors. The case went all the way to the Supreme Court, which determined that peremptory challenges could not be used to racially discriminate against jurors.

Nowadays, if one side suspects the other of using their peremptory challenges illegally, they can file what is called a Batson Challenge. In that case, the lawyer accused of discrimination would be required to provide a race neutral reason as to why they don’t want the juror.

The problem? A judge will accept literally any reason. For example:

  1. Having a 70’s hairdo
  2. Being a hot girl that might be attracted to the defendant or defence council
  3. Wearing a Malcolm X Hat
  4. In favour of the O.J. Simpson verdict
  5. Being a man wearing earrings in both ears
  6. Wearing a Bad Boys’ Club jacket, pink hat, and snakeskin belt

There’s even a leaked 1987 training video from the Philadelphia DA’s office that explains how to strike black jurors and get away with it. He tells the viewer to “choose a reason that you can articulate” in order to avoid any problems with Batson challenges.

This pattern of excluding black jurors continues to this day, and as a result, Batson Challenges are widely regarded as pointless and ineffectual.

Conclusion

But there are signs of change. The murder conviction of Jason Van Dyke in Chicago was the first murder conviction of a Chicago police officer in over fifty years. That’s a big deal. And it’s not like professional jurors would be any better, either. They would still be susceptible to bias and discrimination simply because they’re humans. And there’s also the unique problem that professional jurors may become the targets of relentless lobbying by special interests, tainting their impartiality.

Change will come if we work together, and as our humanitarian and moralistic standards climb higher and higher, bringing about that change may become easier and easier in the future.

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