How Attorneys Use Race To Pick A Jury

We are not yet living in a post-racial culture, no matter how many (mostly Caucasian) people think that’s the case.  Racism still rears its ugly head in when it comes to who gets loans, who gets hired, who gets selected for college admission, who gets an apartment, and who gets arrested.

Racism, or more specifically stereotypes about race, also play a role in selecting a jury.  A criminal defense attorney’s job is to do what’s best for her client, a defendant who is generally black or Hispanic.  Conventional wisdom has it that a defense argument is more likely to appeal to a jury of the defendant’s racial peers, as opposed to “peers” of other races.

Finding a jury that not only is open-minded to the argument being made but that has also experienced some of the slights, presumptions, and racism that the defendant experienced could make the difference in acquitting or convicting, particularly in cases involving cross-race identification or police misconduct.

That’s not to say all white people are racist and would convict a black defendant, or that all black people will acquit a black defendant merely because of his race.  But depending on the theory of the defense, having a jury that’s walked in the shoes of the client is generally advantageous.

In 1986, in a case mostly aimed at the improper use of peremptory strikes by prosecutors seeking to empanel only white jurors, the Supreme Court decided Batson v. Kentucky.  Batson stands for the proposition that peremptory challenges cannot be made based on a person’s race alone.

If a prosecutor shows a pattern of kicking off black jurors during voir dire, he must now give a “race neutral” reason for having kicked a particular person off.  If he can’t come up with a reasonable race-neutral explanation, that juror will be reseated.  The same goes for defense.  (I’ve been “Batsoned” for kicking off too many middle-aged, white men.  However, there are always a lot more of them in the venire than people of color.)

This issue came before the Supreme Court again last week in the matter of Curtis Flowers.  Flowers had been convicted of murdering four people in Montgomery County, Mississippi, in 1996.  He’s been facing the death penalty since 1997, when he was convicted the first time by an all-white jury, but his convictions keep getting reversed.

In total, Flowers has thus far been tried six times.  All of the trials resulted in either convictions or mistrials.  The convictions were tossed on appeal due to prosecutorial misconduct in selecting a jury. The most recent conviction, in 2010, is now before the Supreme Court for the same misconduct, but this time it’s more nuanced.  This last jury comprised both white and black jurors. However, because the prosecutor’s track record in picking a jury in the earlier cases had been so bad, the Supreme Court is wondering whether, even though the prosecutor sat a black juror, there was implicit prejudice where he asked black jurors more questions than their white counterparts during voir dire.

Is “disparate questioning” (questioning black people more than white) proper if done with the ulterior motive of kicking people off based on race?

The argument goes that if an attorney asks a potential juror enough questions, he’ll eventually find some “neutral” reason to back up a peremptory strike.  The “race neutral” explanation could be as simple as, “She (the juror) folded her arms and wouldn’t look at me when I continued questioning her.” Or, “When I asked her the fifth question, the juror appeared hostile.”

The way that questions are asked often predicts the answer.  When judges conduct voir dire, jurors often nod their heads in agreement to appease the judge.  Similarly, attorneys can tweak their questions to jurors to elicit answers that give them a race-neutral basis to kick that juror off.

Take a young black juror the prosecutor wants to kick off. He’ll target him with questions like, “Have you ever been stopped by police for no reason or known anyone who has?” Most young black men will answer, yes.  Follow-up: “That made you angry, right?”  “Police treat black men differently, don’t they?” “You really can’t judge police fairly, can you?”

Even if the potential juror answers, “Nope, I can be completely fair,” the prosecutor could still use the fact that the man had been stopped by police as an excuse for a peremptory strike.  This even if the defense has nothing to do with a “cop’s lying” theory.

In the sixth trial of Flowers, APMreports.org analyzed the jury questioning and concluded that the prosecutor posed 3.5 times as many questions to black jurors as white jurors.  The conduct of prosecutor Doug Evans was so questionable since he started prosecuting Flowers in 1996 (he has been the lead prosecutor at every trial) that even conservative Justice Samuel Alito Jr. called his methods of selecting a jury “unusual and really disturbing.”

In the first four trials, Evans used all his peremptory challenges to strike only black people from the panel.  In the fourth and fifth trials, the jury was split on racial lines, with black jurors voting for acquittal while non-black jurors voted for conviction.  Jurors in the sixth trial in 2010 convicted Evans after deliberating only 30 minutes.  Only one seated juror was black.

According to news reports, Montgomery County has a 45 percent black population.  Yet the venire did not reflect this.

Another issue criminal justice advocates must consider is why venires fail to reflect the proportionality of the racial makeup of a community.

In my jury practice, on some days all white venires (save for one or two people) will come through the door.  On other days, there’s a far greater mix of races more in keeping with the diverse make up of New York City.  Part of this anomaly is due to which neighborhoods get called on which days. I’m told that jury subpoenas go out to whole neighborhoods at a time, so all Tuesday jurors might come from say, the Upper East Side (mostly white neighborhoods), while a Thursday jury might pull from Hell’s Kitchen, the Upper West Side, or the Lower East (more diverse).  The neighborhood that gets called determines the venire makeup.

It doesn’t seem right that the makeup of a jury should be based on the crap-shoot of which day the trial starts.

Small changes in the administration of summons could improve the likelihood that a defendant gets at least the possibility of a jury of his peers on any day of the week.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.