TX Prosecutor Claims that his Boss "Encouraged" Prosecutors to Strike Blacks from Juries
A prosecutor from Wharton County Texas claims that he was "advised or encouraged" to strike black jurors as a matter of trial strategy. While many people believe that attorneys especially prosecutors strike potential jurors because of race, which violates Batson v Kentucky, proving such conduct has been historically difficult. This is one of the few times that I have actually heard of a prosecutor acknowledging that Batson violations are encouraged and promoted within the District Attorney's office. For another extreme example of a prosecutor encouraging subordinates to violate Batson watch this infamous training video put out by the Philadelphia DA's office 10 years after Batson was decided by the Supreme Court.
One question that attorneys in racially charged cases face is whether to attempt to conduct voir dire into racial bias. Voir dire is the process of questioning prospective jurors to ensure that those chosen to sit on the jury will be impartial and unbiased. Whether it is a good idea from a trial strategy perspective to voir dire prospective jurors when an attorney believes racial bias may have played a role in the events underlying the case is a question over which reasonable minds can disagree. Perhaps the most common view is that reflected by Albert Alschuler who suggested twenty-five years ago that any voir dire into racial bias would be "minimally useful."
In this article, I challenge Alschuler's belief that voir dire into racial bias is of minimal benefit. I argue that calling attention to the possibility of racial bias in either the actions of the individuals involved in the case or the jurors themselves can raise the salience of race and encourage jurors to view the evidence in a less biased way than if they were not paying attention to the possibility of racial bias. While I agree with Alschuler that a simple, close-ended question like "Are you going to be biased against the defendant because of his race?" is unlikely to be helpful, I believe a series of open-ended questions, asking jurors to reflect upon how racial bias, both explicit and implicit, might affect their ability to impartially consider the evidence, can be beneficial.
My article proceeds in three parts. In Part I, I review the Supreme Court's jurisprudence on voir dire into racial bias. In Part II, I examine recent social science research that may help answer the question whether calling attention to race during voir dire helps or hurts. On the one hand is a wealth of empirical research conducted over the last decade that strongly suggests calling attention to race motivates jurors to treat Black and White defendants equally. These studies indicate that when race is not highlighted, jurors tend to be more punitive and less empathetic toward Black defendants than White defendants. On the other hand are a few recent studies suggesting that when individuals are made aware of extreme racial differences in the prison population, i.e. when they are given information that suggests there are many more Blacks and Latinos than Whites in prison, Whites are more likely to support punitive criminal justice policies. I conclude in Part III that as a matter of trial strategy, it is best for an attorney concerned about racial bias to confront the issue of race head on. I argue that it is best to do so early and often, rather than waiting until just before the jurydeliberates, as it may be too late by then to change jurors' minds.
This is the latest salvo in an ongoing dispute between Judge Olu Stevens and the Kentucky Prosecutor who represents the greater Louisville area, Tom Wine. As some will recall, Judge Stevens dismissed an empanelled jury last year because it had no African-Americans. The jury panel in that case had 41 people of whom only one was an African-American. According to Judge Olu Stevens, “[t]here is not a single African-American on this jury and (the defendant) is an African-American man…I cannot in good conscious go forward with this jury.” Currently, African-Americans make-up 21% of the population in Jefferson County. This was the second time that Judge Stevens dismissed a jury due to a lack of diversity.
Not surprisingly, Wine responded to the judge’s actions with a petition to the Kentucky Supreme Court asking that court to determine whether Stevens has the authority to dismiss juries based on racial composition. Rather than await the state court’s decision, it appears that the judge has taken to Facebook to voice his views on the subject. According to the affidavit of the Commonwealth Prosecutor, Judge Stevens has made the following Facebook posts about the pending matter:
Going to the Kentucky Supreme Court to protect the right to impanel all-white juries is not where we need to be in 2015.
If people, particularly affected people, would stand up and call him [Wine] out, he would go right back in his corner
Do not sit silently. Stand up. Speak up.
History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming his entitlement to an all white jury panel
We have a chance to prove the commonwealth is about progression and not regression
We have the opportunity to stand for inclusion and not exclusion.
At least initially, the Commonwealth Prosecutor was able to get the judge recused from two pending criminal cases because of the Facebook posts. It remains to be seen whether the state high court will remove all pending criminal cases from the judge and or allow any state judge to dismiss a jury or jury panel because it lacks diversity.
This article reviews a growing body of social science research indicating that race, ethnicity, and culture can influence the judgments and behaviors of juries. The first section addresses research on jury bias, which shows that jurors often make harsher judgments of defendants from other racial and ethnic groups and are more likely to give death sentences in cases involving Black or Latino defendants and White victims. However, these effects are moderated by several factors related to the trial parties, context, and crime. Further, juror bias often involves subtle or implicit psychological processes that can be difficult to recognize and correct. The second section discusses research conceptualizing jurors as a genetic forces whose judgments and behaviors may reflect their racial, ethnic, and cultural backgrounds. This work shows that jurors' backgrounds may influence their reactions to defendants, trial judgments, and deliberation behaviors. The final section offers recommendations for future research in these areas.
This is the question being presented before the Kentucky Supreme Court. The issue arose after Judge Olu Stevens of the Jefferson Circuit Court dismissed an empanelled jury that contained no African-Americans. According to Judge Olu Stevens, “[t]here is not a single African-American on this jury and (the defendant) is an African-American man...I cannot in good conscious go forward with this jury.” Currently, African-Americans make-up 21% of the population in Jefferson County. This is not the first time that Judge Stevens has dismissed a jury due to a lack of diversity.
Whatever the lawyer fears, whether it is an issue of race in the case or unconscious biases in jurors that may affect how they decide the case, the lawyer must address the fears during jury selection. If the lawyer does not explore what the lawyer fears about the case during jury selection, the lawyer has failed to increase the odds that the jury will consider the client’s case fairly. If the defense lawyer does not mention race during jury selection when race matters in a case, racial bias can be a corrosive factor eating away at any chance of fairness for the client.
When race matters in a case, it plays a role in the outcome, just like the state’s burden of proof, the credibility of witnesses, the identification of the defendant-client, how the jury views the police involved in the case, or, if the client testifies, how believable the jury thinks the client is. Race matters to this degree because race affects the way jurors view each of these issues.
This Essay addresses the importance of a trial lawyer discussing the lawyer’s fears about a case, including issues of race, in jury selection. Part I explains why race matters and how important race-salient jury selection is, especially when race is not an obvious issue in the case. Part II argues that discussing topical issues that may affect how jurors approach a case, especially those issues in the community in which a trial is taking place, is a necessary subject for juryselection. Finally, Part III uses events in Ferguson, Missouri, in 2014, to suggest how an attorney could approach discussing a topical matter, such as Ferguson, with the panel of prospective jurors.
The goals of this paper are twofold. First, it describes and tests a basic organizing framework for when a plaintiff’s race, ethnicity, and gender are most likely to impact civil jury awards. The framework takes into account psychological and structural sources of bias, and the ways in which they can be expected to interact systematically with instructions that provide jurors with more or less discretion. Second, the paper introduces a methodological innovation to overcome one of the primary barriers to empirical field research on race bias in civil legal decisions: the absence of party demographic information. The data set is comprised of jury verdicts in tort cases combined with information from the U.S. Census Bureau regarding race and ethnicity. Statistical tests measure the relationships between race, ethnicity, gender and awards for economic damages and pain and suffering. Overall, the results were consistent with the psycho-structural framework. Where jurors had discretion (i.e., pain and suffering damages) they awarded less to Black plaintiffs than to White plaintiffs. Where jurors had less discretion (i.e., lost income) they awarded less to female plaintiffs and more to Asian plaintiffs than to male and White plaintiffs, respectively, a reflection of structural income disparities. This paper thus presents a novel and useful framework and method for understanding how structural and psychological factors lead to differential jury awards.
An Iowa judge has dismissed a 112 person jury pool (venire) because it lacked sufficient diversity. In this case, an African-American defendant is on trial for killing his white girlfriend. Of the 112 potential jurors summoned, 111 identified as white, while 1 identified as Native American. In the county (Webster) in which this case is being prosecuted, African-Americans make-up approximately 5% of the population. Interestingly, the case had been transferred to Webster County from Worth County in the hopes of obtaining a more diverse jury.
According to the judge who dismissed the pool, "the system is broken in Webster County and this court needs to fix it for Mr. Washington's rights to be upheld." The attorney for the defendant has suggested that the court use alternative methods of selecting jurors to include pulling names from local utility company billing records and examining lists of persons receiving unemployment benefits or disability payments.
The new Manhattan county clerk, former State Supreme Court Justice Milton Tingling, wants to make Manhattan juries more diverse. The former judge states that in his prior experience on the bench the individuals who showed up for jury duty did not necessarily reflect the various groups of people who lived in Manhattan. Therefore, when he takes over on 1 January, he plans to recruit potential jurors from senior centers, community organizations, and high schools. According to the future clerk,
We have people who are professional juror avoiders and I want to change that...We are the most opinionated people in New York. Everybody in Manhattan has an opinion about everything. Being in a jury gives you an opportunity to have your opinion mean something to somebody. You are not just mouthing off.