The People v. Representation: Why Jury Diversity Matters

The U.S. Department of Justice’s failure to indict the police officer who killed Eric Garner has revived public calls to overhaul our criminal justice system. While these calls target racial profiling and brutality, the recently decided case of Flowers v. Mississippi spotlights a more obscure, but critical issue. On June 21, the Supreme Court overturned the conviction of Curtis Flowers, a black man who had been tried for murder six times, because the Court found the prosecution’s removal of a black juror violated the Fourteenth Amendment. [1] American Public Media, who closely followed the Flowers case, discovered that prosecutor Doug Evans struck 50 percent of prospective black jurors and only 11 percent of whites across every trial against Flowers. [2] Each time Flowers had been convicted, he was “judged by either an all-white or nearly all-white jury.” [3] 

The issue strikes at the core of how we define “a jury of one’s peers.” Though not explicitly stated in the U.S. Constitution, this concept is implied by the Sixth Amendment’s right to an impartial jury and the Fourteenth Amendment’s Due Process and Equal Protection Clauses. During jury selection, also known as voir dire, attorneys of either side can dismiss a juror with a strike for cause, if they feel the juror holds a prejudice, or a peremptory strike, which the attorney does not have to justify. [4] History has borne out the horrific results of all white-juries, the most infamous case being the Emmett Till murder trial. Acquittals by all-white juries for white men charged with murdering black civilians arguably served as a perverse form of jury nullification and demonstrates how prejudice manifests in the criminal justice system. Conversely, diverse juries balance out different perspectives, which can neutralize implicit bias in jury decision-making.

Jury diversity would increase accountability in instances of excessive force. Rarely are police officers indicted for killing unarmed black civilians, but if they are, they can expect to be acquitted. Lack of minority representation on juries exacerbates this, since white jurors consistently trust the police’s judgement. Between August 2014 and December 2016, The Huffington Post reviewed 13 trials involving a police shooting and found that in 9 of the cases, ethnic minorities made up, at most, one-third of the jurors. [5] The trial of North Charleston policeman Michael Slager provided the most egregious example because only one black juror participated when African-Americans comprise about half of the city’s population. Not only does this jury fail to reflect North Charleston’s racial diversity, it is designed to hold a homogenous, trusting attitude towards police. Defense attorney Bob Rubin said in an NPR report, “In my 28 years of experience, black jurors are generally more suspicious of law enforcement than white jurors.” [6] Though current court procedures admonish any bias, such perspective is needed. Our jury system could never eliminate bias altogether. Our past experiences inform our present behavior and attitudes, which manifest differently in an intense, courtroom setting. Creating a jury pool with contrasting worldviews would best achieve the “impartial jury” ideal.

Attorney Evans was completely disinterested in that vision of jury selection. The Roberts Court argued that Evans’ history of excluding black jurors from the jury pool and “dramatically disparate questioning of black and white prospective jurors” suggests discriminatory intent. Justice Brett Kavanaugh wrote in the majority opinion, “Carolyn Wright, a black prospective juror, was struck, the State says, in part because she knew several defense witnesses… But three white prospective jurors also knew many individuals involved in the case, and the State asked them no individual questions about their connections to witnesses.” [7]

The legal precedent for this ruling is found in Strauder v. West Virginia (1880). In Strauder, the Waite Court banned racial discrimination in juries for criminal proceedings under the Equal Protection Clause, reasoning that such jury exclusion “is practically a brand upon them affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice.” [8] The Supreme Court explicitly limited the aforementioned prosecutorial power in Batson v. Kentucky (1986) by prohibiting prosecutors in criminal cases from exercising their peremptory strikes to discriminate against jurors based on race, particularly when the jurors are of the same race as the defendant. [9] The Supreme Court expanded the Batson ruling’s scope to apply to gender discrimination and civil suits in J.E.B. v. Alabama ex rel. T.B. (1994) and Edmonson v. Leesville Concrete Company (1991), respectively. [10] In addition, attorneys of either side can issue a Batson challenge to prevent any discriminatory juror removal, which can result in a new trial.

Despite the seemingly strong judicial protections for maintaining judicial diversity, one Supreme Court case weakens the ability to challenge racial disparities in jury selection: Washington v. Davis (1976). Prior to Batson, The Supreme Court narrowed the Strauder ruling by stating, “It does not follow that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.” [11] The Burger Court interpreted the Equal Protection Clause and Fifth Amendment’s Due Process Clause as safeguards against official discrimination, not disparities that may occur happenstance. In other words, the court must find intent to discriminate during jury selection for it to violate the Constitution and a jury does not have to reflect the demographics of its jurisdiction. Batson does not contradict Washington, so the latter’s threshold of intent still exists and inhibits enforcement of the former.

The Washington decision undermines our judicial system on theoretical and practical levels. Theoretically, the Court’s ruling contradicts the underlying philosophical principles of the Fifth, Sixth, Seventh, and Fourteenth Amendments, as these protections center on the defendant’s rights—embodying presumption of innocence—and levy a heavy burden of proof on law enforcement; meanwhile, the Washington decision presumes that law enforcement officials always act in good faith and also increases the threshold for a defendant and/or victim to successfully hold law enforcement accountable. Practically, the ruling misunderstands the nature of systemic discrimination. An attorney could incidentally strike all jurors of color if they provide “race-neutral” explanations. Returning to excessive force, defense attorneys in these cases can construct juries designed to be deferential to police while successfully dodging a Batson challenge. While “race-neutral” factors such as education level can be legitimate, it becomes pretextual when attorneys weigh those factors unequally when questioning all potential jurors. As seen with Evans’ removal of Carolyn Wright, using a “race-neutral” pretext, such as knowing defense witnesses, along clear racial lines ought to violate the Fourteenth Amendment.

While the Washington decision enables window dressing for an attorney’s explicit bias, the ruling also ignores how attorneys hold implicit biases that, when left unchecked, can reproduce the same disparities as malicious discrimination. Lack of bias training in the courtroom compounds unequal questioning, which in turn produces unrepresentative juries. Varying jurisdictional standards for jury selection also exacerbate disparities, as the time to select a jury can be a few days or a few hours. [12] The latter does not permit self-reflection on the part of the attorneys, nor an in-depth understanding of the potential jurors, who mostly answer Yes/No questions. This also raises the issue of bias training for judges. Once a Batson challenge is raised, judges ultimately decide whether a juror’s removal is racist. [13]

To take proactive measures to prevent racial discrimination in jury selection, we must acknowledge that no juror, lawyer, or judges can ever be impartial. Unconscious biases affect us all and we must reform current court procedures to address more than overt racism, which includes overturning Washington v. Davis

[1] Flowers v. Mississippi, 588 U.S. __ (2019)

[2] Gilbert, Curtis, Dave Mann, Rehman Tungekar, and Parker Yesko. "Reversed: Curtis Flowers Wins Appeal at U.S. Supreme Court." APM Reports. June 21, 2019. Accessed July 24, 2019.

[3] id

[4] Gabriel, Richard. "Understanding Bias: Preserving Peremptory Challenges, Preventing Their Discriminatory Use, and Providing Fairer and More Impartial Juries." The Civil Jury Project at NYU School of Law. Accessed July 24, 2019.

[5] Wing, Nick. "When Killer Cops Go On Trial, Their Fate Is Mostly In White Hands." HuffPost. December 16, 2016. Accessed July 24, 2019.

[6] Green, Emily. "Finding A Jury Of Your Peers Actually Is Pretty Complicated." NPR. December 27, 2014. Accessed July 20, 2019.

[7] Flowers v. Mississippi, 588 U.S. __ (2019)

[8] "Strauder v. West Virginia." Oyez. Accessed July 20, 2019.

[9] "Batson v. Kentucky." Oyez. Accessed July 20, 2019.

[10] Gabriel, Richard. "Understanding Bias: Preserving Peremptory Challenges, Preventing Their Discriminatory Use, and Providing Fairer and More Impartial Juries." The Civil Jury Project at NYU School of Law. Accessed July 24, 2019.

[11] Washington v. Davis, 426 U.S. 229 (1976)

[12] Gabriel, Richard. "Understanding Bias: Preserving Peremptory Challenges, Preventing Their Discriminatory Use, and Providing Fairer and More Impartial Juries." The Civil Jury Project at NYU School of Law. Accessed July 24, 2019.

[13] Edelman, Gilad. "Why Is It So Easy for Prosecutors to Strike Black Jurors?" The New Yorker. June 5, 2015. Accessed July 24, 2019.