There are only two things I can remember when my co-counsel and I were talking right before jury selection began: he told me only an idiot can’t come up with a viable excuse to beat a Batson challenge, and a few hour later, he lost a reverse Batson challenge. We talked about the jurors we wanted on the jury for the case, but contrary to what people assume, voir dire isn’t about selecting a favorable jury for our side as much as denying a favorable jury for the prosecution.
Based on anecdotal experience, I’ve long argued that voir dire is voodoo. There’s never been much doubt that prosecutors employ their peremptory challenges to toss minorities off the jury, just as defense lawyers use them to get rid of cops’ wives and white people who live in gated communities with perfect lawns. It’s not that we’re certain of how they think, what they’ll do, but that voir dire isn’t magic. We can make assumptions based on extremely limited information, and they almost invariably compel lawyers into making decisions based on stereotypes. We have little more to go on.
Wake Forest crimlaw professor Ronald Wright has done a study of jury selection, and now offers statistical proof that what everyone has always known to be the case is the case.
Folk wisdom, among those familiar with the song and dance, is that prosecutors use these challenges to remove nonwhite jurors, who are statistically more likely to acquit, while defense attorneys — who can step in only after the pool has been narrowed by prosecutors — typically counteract by removing more white jurors.
Is the experience of thousands of lawyers “folk wisdom”? An exceptionally well-crafted statistical analysis of whether the sun rises in the east would prove the early morning observations of a great many folks. But Wright now puts percentages to the “folk wisdom,” at least for the state of North Carolina, to the extent that’s relevant to any other state.
Based on statewide jury selection records, our Jury Sunshine Project discovered that prosecutors remove about 20 percent of African-Americans available in the jury pool, compared with about 10 percent of whites. Defense attorneys, seemingly in response, remove more of the white jurors (22 percent) than black jurors (10 percent) left in the post-judge-and-prosecutor pool.
The data also show variety within the state: Prosecutors in urban areas, which tend to have larger minority populations, remove nonwhite jurors at a higher rate than prosecutors do in other parts of the state.
To be honest, the numbers are lower than I would have expected. But no one who has ever picked a jury in a criminal trial will be surprised by them, including this aspect.
Finally, we discovered, to our surprise, that judges also remove black jurors “for cause” about 20 percent more often than they remove available white jurors.
That this surprised Wright is . . . surprising. There are reasons for removal, and we fight about them all the time, but the reasons are invariably the same. First, note that these are not “jurors” being removed, but potential jurors. Before they are subject to voir dire, questioning, by the lawyers, they are asked “routine” questions by the judge, such as what they do for a living, whether they are (or know) cops, whether they’ve been arrested or had bad experiences with the police that would prevent them from fairly judging the testimony of a police officer.
Guess who’s more likely to be a cop, be related to a cop, be friends with a cop? Guess who’s more likely to live in a “high crime” neighborhood, have been arrested, have bad experiences with cops?
When the dust settles at the close of jury selection, defense attorneys’ actions in the last leg of the process do not cancel out the combined skewed actions from prosecutors and judges. The consistent result is African-Americans occupying a much smaller percentage of seats in the jury box than they did in the original jury pool.
To be fair, we never really had a chance. Black people comprise about 13% of the population, and jury panels tend to be selected from voter registrations and drivers’ licenses. Then, in most states, people convicted of felonies are ineligible. So the pool of potential jurors is already stripped to the bone of minorities, and the gap is filled with nice folks who have never experienced getting tossed against a wall for no particular reason, to whom police tend to be polite and helpful public servants who are there to help.
Wright offers a solution to his problem.
To address the problem, state courts could adopt rules such as the one that the Washington Supreme Court approved last April. The new rule makes it easier to stop juror removals rooted in implicit racial bias by outlawing peremptory challenges defended with explanations highly correlated with race, like “prior contact with law enforcement” or “living in a high-crime neighborhood.”
Neither the words “outlawing” nor “implicit” are words I would have chosen. It’s not implicit, but pretextual. Hiding racial stereotyping behind euphemisms like “implicit” is a feel-good gimmick, but nonsense. Black jurors are assumed to be friendlier to the defense because they’re black, and because they’re black, their experience with the cops and legal system is assumed to be negative. And while this isn’t necessarily the case, it’s far more likely than not, and so we go with it for lack of real knowledge.
As for “outlawing,” the basis for the strike will shift slightly to the right by the follow-up question, whether the “prior contact with law enforcement” will cause the potential juror, the black guy, to be disinclined to believe the cop. If he says “yes,” then there’s cause. If he says “no,” then the justification for the peremptory strike will be that he was dishonest on voir dire. Either way, he’s a goner.
And then comes the real kicker, that even when you get a jury with some minorities on it, they still convict because, as it turns out, nobody really likes “criminals” all that much after all, and while minority jurors are certainly more open to the defense, the same assumptions that prosecutors employ, and that Wright similarly if tacitly employs, that black jurors will vote to acquit, doesn’t turn out to hold as true as one would expect. They may give the defense a fairer shake, but it turns out that stereotypes are just that, and don’t really tell us squat about any particular individual juror. Statistics are great, but they don’t sit on the jury.