A Jury Of Whose Peers?

I never had a problem with Batson, per se. Of course the prosecution shouldn’t discriminate against potential jurors on the basis of race. But its rationale concerned me, creating a right on the part of individuals, potential jurors, to be free from discrimination. The right to a fair and impartial jury of one’s peers belonged to the accused, not the public.

And then the other shoe fell, as it obviously would, that the same right could be infringed by the defense, since the right no longer was limited to the defendant, but was now a public right. Reverse Batson was born, and the defendant’s ability to strike jurors was, like the prosecution’s, subject to the invented right of someone who wouldn’t go to prison.

Since then, more outsiders’ rights have found their way into the well. Victims, who are nothing more than witnesses in criminal proceedings that exist only to vindicate societal condemnation of criminal conduct, enjoyed the appeal of emotion to stake out their real estate in the trench, entitled to intervene, sometimes to benefit, when the prosecution representing the government didn’t serve their personal vision of “justice.”

As the concept of a jury slip slides further from its sole function of fact finder for the sake of the defendant, will it be forgotten why juries exist at all?

They were a racially diverse group – six white Americans, four Black Americans and two mixed-race Americans – that include a dog lover, a sports fan, a single parent, an insurance agent, a nurse and a retiree. But one thing remains a mystery: their names.

What if it wasn’t a racially diverse group? Maybe because of who was called for duty? Maybe because of who beefed about how serving would make their life unpleasant? Maybe because of their experiences which would prevent them from being impartial? Maybe because it was harder to find black people who never saw the video? Maybe because it was harder to find black people who didn’t have a bad experience with police and were biased against them?

So what? The Constitution gives no one a right to a jury of any particular racial makeup. But far more important, it doesn’t give the general public a right to a jury in a highly controversial trial a say about who sits on the jury. What if the jury was all white? What if the jury was all black? It might be better for post hoc acceptability that the jury was racially mixed, if blacks were disproportionately represented, but that was purely kismet. Neither public nor pundits get a say in jury selection. For now.

Anonymous juries continue to be rare, accounting for only about a dozen a year out of more than 100,000 jury trials nationally. But with the rise of social media and the ease of internet searches, concerns over juror safety could lead to more anonymous juries, a shift that some legal scholars said could jeopardize the transparent nature of the legal system.

The rationale for anonymous juries was based on protecting the jurors, personally, and the integrity of the verdict. The concern involved a mob, but the word referred more to the defendant’s “thing” than ours. Would a mafia boss, a cartel jefe, ask a friend to have a nice chat with a seated juror about the comfort of their children? Would fear of such influence weigh on their verdict?

The threat was real, and so a new rubric was created to protect the identity of jurors when the threat of harm, of influence, was sufficiently credible to overcome the specifics of their identity. It prevented background research into who they are, a critical component of voir dire since potential jurors sometimes omit details of their lives that are material to their selection, and even lie about their views on occasion. But when the threat of harm was sufficient, judges concealed their identities despite the defendant’s constitutional right to a jury of her peers.

But as so often happens, some remember the rubric and forget the rationale.

“It’s been a slow and constant march toward this, and if in the end no one knows who’s on the jury, people can lose faith in the system and see it as a faceless machine,” said Gregg Leslie, executive director of the First Amendment Clinic at Arizona State University’s law school in Phoenix. “Protecting privacy on a blanket basis will undermine the idea of an open and accountable society.”

Transparency and accountability are on the list of warm and fuzzy buzzwords that evoke a knee-jerk reaction in the insipid, and so are promiscuously employed by the nefarious and simplistic alike to rationalize their wants and dreams. Faith in our jury system isn’t dependent on public approval of the identities of jurors, but on our system. The public doesn’t get a strike or a Batson challenge. The public doesn’t get to investigate potential jurors for their errant twits or problematic word choices when they were grade schoolers. The public has nothing to say, no role whatsoever, in the selection of jurors. Not yet.

So why claim that an anonymous, at least to the public, jury, “will undermine the idea of an open and accountable society”? The key word here is “accountable,” as Ashe Schow succinctly points out.

Media outlets tried to give the public as much information as possible about the people who would decide former police officer Derek Chauvin’s fate — an act that will likely be cited by the defense team when trying to appeal the verdict.

Giving so much information about the jury could have led people with a moderate amount of internet sleuthing skills to discover the identities of some of the jurors. Had Chauvin not been found guilty of murdering Minneapolis man George Floyd, that information likely would have been used to punish those jurors for reaching the “wrong” verdict.

Much was made of the external influences on the jury as it wasn’t sequestered during trial. They knew that there was a strong probability that cities would burn based on their verdict. They learned other police actions during the course of their service. And, while there is no basis to believe that they were improperly influenced beyond righteous speculation, they may well have been concerned that their identities would be revealed after the trial and someone who disagreed with their verdict might, in this climate and given the newfound tolerance for violence, put them or their loved ones at risk.

To be sure, “accountable” is being applied to the jury, a clear indication that members of a jury should be identified so that they can be hounded afterward should the mob not get its way, though I’m sure that’s not what Leslie meant.

It is, however, an unfortunate consequence of today’s society, which is far too invested in trial-by-media, with a verdict decided before any actual trial is started.

Protection of jurors, as well as the integrity of the verdict being based not on fears of outside violence but on the evidence introduced at trial, may have been justified in light of one mob. But a jury of one’s peers is a right due the defendant, and only the defendant, and not the other mob who now cries for its right to accountability, just in case certain cohorts of the public feel the jury didn’t reach the correct verdict to provide the transparent “justice” to which they feel entitled.

12 thoughts on “A Jury Of Whose Peers?

  1. B. McLeod

    Most people in this country today don’t even realize trials are supposed to be for the defendant(s). They have become that procedural nicety that is sometimes grudgingly suffered as a precursor to “holding defendants accountable” for whatever. And of course, that’s only when the mob is pressing on from getting their target fired/evicted, etc., to actually demanding imprisonment.

  2. Steve White

    Hopefully if this is off topic it will be of enough interest to defense attorneys to be tolerated, as it does related to “victim’s rights” .
    There was an organization in California lobbying for victim’s rights called Crime Victims United of California.
    CVUC, it turns out, was a Sacramento (California State Capital) sub office of the LA District Attorney.
    The entire office was made up of DA staff. No citizens who simply were interested in the same agenda. The staff at the office identified themselves by their alleged past victimhood, which was often by proxy, (“My uncle was a victim” , without specifying the crime) and NEVER stated they were full time DA employees.
    As far as I know, not one media outlet ever reported this. I found out by doing independent research online and drove to Sacramento (only 2 hours from me) to verify and get some more info.
    I have no idea about the legality of the DA using his office money to lobby the legislature, but it seems pretty clear the DA himself did not believe in it’s propriety, since he did his best to hide it.
    It seems to me – if someone believed it is good to convict a lot more cops of misconduct, which i think is part of the “more work to be done ” President Biden et al spoke of – then lobbying for the “right” of people sympathetic to the prosecution to be on those juries is a logical step towards that goal. The defense bar needs to keep their eyes open.

    1. B. McLeod

      Did that stop the Grinch? Ha! The Grinch simply said, “If I can’t find a victim. I’ll MAKE one instead.”

      1. Steve White

        Of course, as DA for LA county, he could have found hundreds of real victims to promote, but I assume he was afraid real people might go “off message” – real people might want criminals punished but not favor taking away due process protections.
        But the other benefit of claiming victimhood, which I think we see used by #MeToo actitivists, is you can shame the media and public into asking no questions of an alleged victim.

        1. Jeff Davidson

          I know, just a cool story, but it emphasizes Steve’s point. A friend of mine was a crime victim who’s father was murdered in the attack that injured her. She went off-message, and was threatened with jail for it. Her name is SueZann Bosler, and her father was Bill Bosler.

  3. Richard Kopf


    With roughly 30 years of trying federal criminal cases to juries under my belt, and a fair amount of thinking about the purpose of juries, it my opinion that the hoi polloi have absolutely no right to demand that jurors be held “accountable” to the masses. Period. End of story.


    PS “Reverse Batson” went off the rails when it suggested that prospective jurors have a personal stake in how criminal defense lawyers select juries. Thank God this has not become a practical problem.

    1. SHG Post author

      I lost a reverse Baton challenge once. The defendant was Dominican in the Bronx and the jury was mostly black.

  4. Noel Erinjeri

    Point of clarification: does “reverse Batson” refer to defense strikes of minority jurors to make the jury more white; or to either side striking white jurors to make the jury more minority?

    I always used it in the latter sense, but His Admiralness used the former. It confused the hell out of me–I had to go back and re-read the post.

    1. SHG Post author

      Any strikes based on race by the defense can be reverse Batson. If it’s white people to get a black jury, boom. If it’s black people to get a white jury, boom. If it’s black people because there is friction between Dominican and black people in the Bronx, boom.

      –Your Admiralness

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