Jury Duty, Minority Issues, Trials

Jurors Get Serious About 'Black Lives Matter'

Black or white, everyone wants their neighborhoods to be safe. They just don't want to be stopped arbitrarily because of the color of their skin.

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BlackLivesMatter signIt’s too soon to say it’s a phenomenon, but in recent months I’ve noticed a trend — jurors openly expressing black-lives-matter concerns during voir dire. They see a young black male, the defendant, sitting next to defense counsel and when asked if they can be fair and impartial, say they can’t.  They do not want to be part of any jury sending a defendant to jail when they’re told in voir dire that the entire proof is based on just the word of police.  Even when the judge instructs them that sentencing is not their concern and that they must, in fact, put it out of their minds, they state they cannot.  They are then instructed to leave the panel.

What’s even more interesting is the jurors who say they can be fair but who clearly are factoring in black-lives-matter concepts.  Those jurors are staying on juries and often acquitting in cases where the only basis of “proof beyond a reasonable doubt” comes from the testimony of police.  When there is no video, no DNA, no forensics, no outside witnesses — just police saying they saw the defendant do something — defendants have been winning.  It seems jurors (at least in NYC) are expecting more before they’ll convict young black males based on a cop’s word alone.  Prosecutors, however, haven’t yet acknowledged this shift or changed their decisions on who to prosecute because of it.

I attribute this shift in juror attitudes to the following: Racism still exists in how and who gets prosecuted.  People who live in large urban areas and who travel and work elbow-to-elbow with people from different races and ethnic backgrounds are more conscious of the subtle (and not so subtle) role race plays in urban policing.

Even though the overwhelming majority of people living in Manhattan are Caucasian, in my anecdotal experience, almost 98% of the cases prosecuted are against black or Hispanic men.  While the NYPD and other police forces have taken steps toward integrating their staff, most police I cross-examine in court are still white.

As the public becomes aware of all this, due in part to the Black Lives Matter movement, prosecutors will have to work harder to win convictions in these cop-as-sole-witness cases.

I’ll give you an example.  I won a case recently — a one-off alleged drug observation sale where a police sergeant testified that he saw my client drop a pebble-size bag of crack to the ground for a buyer to retrieve.  (The cop was on a roof but was using binoculars.)  The buyer was apprehended with the crack.  When my client was stopped, he had no drugs on him, but did have over $300 in crumpled bills in his pocket. The jury acquitted.

A colleague recently won a tough gun-possession case where the defendant ran and tossed a gun under a car as cops approached him.  His defense was temporary innocent possession of the weapon.   After acquitting him, the jurors said just because the defendant ran didn’t mean he was guilty.  Many black men would be afraid of police quickly coming toward them. And of course, they reasoned, the defendant would get rid of the gun, otherwise he himself might have been killed.

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An interesting report was filed in the Southern District of New York last week that goes hand-in-hand with this positive trend.  According to a federal monitor appointed to examine police stop-and-frisk tactics that were alleged to be racially driven and not based on probable cause, there has been a drastic decline in the high rates of stops of black and Hispanic men for no reason since the report was commissioned.  In the three years the monitor studied, 2013 to 2015, the number of stops declined from 191,851 to 22,563, according to the New York Times.

This is not to say that police have actually arrested fewer people, but they are stopping and frisking fewer innocent people of color — people who have done nothing, but who had been stopped merely because of their skin color and the neighborhood in which they resided. According to the report, now when police stop and frisk, they are more likely to have a justified reason (like probable cause).  Because of this, they are more likely to find contraband or     weapons on the person stopped and thereby make a lawful arrest.

This is how it should be.  Black or white, everyone wants their neighborhoods to be safe.  They just don’t want to be stopped arbitrarily because of the color of their skin.

The connection of this to jury trials is simple.  For many years, black and Hispanic people have been kicked off juries for acknowledging during voir dire that they could not be unbiased towards police — many had been stopped, or knew people who had been, by them for no reason.  If fewer black or Hispanic people are stopped unlawfully, the more likely they will be able to sit on juries.  The more people of color on a jury, the more likely they are to convince other jurors, not of color, to see the world as they’ve lived it.

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Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at tonimessinalw@gmail.com or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.

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