Guilty or not guilty. This is how Americans have helped keep crime in check for two and half centuries. But the US jury system isn’t perfect.
For instance, it wasn’t until 1968 that women were allowed to serve on juries in all 50 states.And while it’s been illegal to exclude African Americans from jury duty for more than 135 years …… they remain dramatically underrepresented, even today.
Each year, over 30 million people are sent a summons in the mail. From that, an estimated 1.5 million are selected to serve on a jury. And it’s during that selection process when most of the problems emerge. Attorneys have a certain number of “strikes”, or peremptory challenges, where they can remove jury candidates without any explanation. For decades, it was perfectly legal to use these strikes on a discriminatory basis – and that’s exactly what prosecutors did.
Cassandra Stubbs (Director of the ACLU Capital Punishment Project): “The prosecutor’s time after time after time was choosing white jurors and striking black jurors of colour courts were routinely saying there was not proof enough of discrimination.”
The issue finally came to a head in 1986. The Supreme Court made it illegal to strike based on racial or sexual discrimination. But what has that really changed? Turns out, prosecutors found ways to still discriminate.
Stubbs: “In the 1990s prosecutors in North Carolina received a cheat sheet about how to go to court and defend against claims of racial bias in a way that would allow them to pick a discriminatory jury.”
The racial bias continued to be mostly unchecked and underreported well into the 2000s. Finally, a report in 2010 revealed the shocking reality. Between 2005-2009, prosecutors in Houston County, Alabama had excluded 80% of blacks who qualified for jury service on death penalty cases.
Stubbs: “We see that death penalty trials are infected from the beginning to the end w/ racial bias both in who is charged we know overwhelmingly that prosecutors are far more likely to seek the death penalty when the victim is white. It’s a white lives matter more when we actually look at how the death penalty is applied and that should be very troubling to all of us.”
Adding to the issue is a group of experts called “trial consultants.” These are people who have boiled jury selection down to a science.
Adam Benforado (Professor of Law at Drexel University): “I think that that’s one of the biggest challenges we face in the coming years is actually from the trial consulting industry.”
Trial consulting began in the early ’70s with good intentions.
Benforado: “People who were at the forefront where do-gooders who wanted to make the system fair. Balance the scales and remove racial bias. Now the influence of money has meant now the game is making as biased a jury as possible.”
That’s what happened in 1994 during the O. J. Simpson murder trial. The defence team hired jury consultant Jo-Ellan Dimitrius. She closely examined the opinions and backgrounds of each of the 304 jury prospects. And discovered something important enough that it was reenacted in the show “The People v. O. J. Simpson: American Crime Story”
In the end, Dimitrius helped the defence gain a jury of 1 black man, 1 hispanic man, 2 white women, and 8 black women.
We all know what happened next: the jury found Simpson not guilty on two counts of murder. Now, you could argue that Simpson’s attorneys were simply giving him the best possible defence. But unlike attorneys, trial consultants are not necessarily licensed and are not required to uphold a standard of ethics in the courtroom.
And many criminal justice experts argue that this type of “scientific jury selection” crosses the line.
Gregory Hurley (National Center for State Courts): “Jury consultants are really not there necessarily to create an impartial jury they’re there to pick a jury that they feel is going to be most favourable for their client. But the other side is doing the same thing and the idea is through that battle an impartial jury will eventually be developed… It’s not a system that is perfect but it is a very effective system that’s been around a long time.”
But does that mean we can’t do any better? Some judges are at least trying. The National Center for State Courts discovered that many state courts are giving jurors more liberty.
Hurley: “Experimenting w/ things like allowing jurors to ask questions of witnesses, allowing jurors to take notes, ensuring that jurors had copy of the court’s instructions w/ them in the jury deliberations room.”
The hope is that jurors who understand the case as best as possible will rely more on the facts than their own, biased opinions during deliberation. But won’t fix the bigger issue
Stubbs: “With the problem of jury selection, in particular, there’s really no reason to have peremptory challenges. And I think that we as state and federal court systems should be moving towards getting rid of peremptory challenges because they’re really just an opportunity to discriminate.”
No matter how you look at it, there’s a lot of work yet to be done. But with each new ruling, we have a chance for real justice.
The American Society of Trial Consultants was not available for comment.
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