When I have an African-American defendant in a criminal trial, I like to ask potential jurors the following question: What do you think of race relations in the United States — are they good; bad; is there room for improvement?
Almost everyone answers that there is room for improvement. What would you improve if you could do so, I then ask. Answers vary.
Don’t bother asking the Judicial Branch in Connecticut. Jury administrators — the folks responsible for assuring that a fair cross-section of the community reports for jury duty — just don’t care about race. By wearing blinders, and refusing even to tabulate data about the race of potential jurors, these officials act as if everything is just fine and dandy along the color line.
I picked a jury in a murder case not long ago in Eastern Connecticut. In six days of jury selection, we interviewed more than 120 folks. We did not see a single African-American male, and we saw only a few black women. According to U.S. Census Bureau data, 6.5 percent of the county is African-American.
Something is wrong with this picture. Ask lawyers and judges statewide, and many will tell you people of color are under-represented on juries statewide.
Jurors are drawn from four pools; the secretary of the state submits a list of registered voters; the Department of Motor Vehicles gives a list of those applying for driver’s licenses or state identification cards; the Labor Department provides the names of those filing unemployment compensation claims; and, the Department of Revenue Services tenders the names of those filing Connecticut income tax forms.
But if you ask officials from any of these departments about the racial makeup of the lists they submit to the Judicial Branch for potential jury service, you’re in for a disappointment. They have no idea. They don’t keep this data, or so representatives of each department said when I subpoenaed them to a courtroom looking for something to tell my client about why not a single black man was available for questioning on his jury.
Perhaps an answer would be found from the Attorney General’s Office, I thought. After all, that office is responsible for issuing civil summons to people who do not show up to court for jury duty. Surprise, surprise — since 2009, not a single solitary soul in Connecticut has been prosecuted for ignoring a jury summons. (About one in 30 people simply ignore the order to come to court.)
On the questionnaire potential jurors are given, they are asked to designate their race or ethnic background to help assure that jurors are selected in a nondiscriminatory manner. But the very next sentence tells them giving the information is not necessary. Indeed, the section ends by telling jurors they needn’t answer the question at all, if doing so is offensive. The form is pure gibberish, making a mockery of the commitment to ensuring that no group is discriminated against.
Can it really be that no one in the state of Connecticut keeps statistics on the race of jurors who respond to the call for jury duty?
There is a broad, and uneasy, silent consensus among criminal defense lawyers and judges presiding over the criminal courts that juries are too often too white. We try to keep it secret by refusing to talk about it. When I’ve complained about the lack of black faces in jury panels, I’ve actually had prosecutors stand up, with a straight face, and tell the judge they could not tell the race of panel members, this after having looked potential jurors in the eye. This sort of intellectual dishonesty makes a mockery of the deep wounds caused by this nation’s racial — and racist — legacy. How many prosecutors would be as blind if a black family took up residence next door in suburbia?
If white defendants routinely walked into courtrooms to face all-black juries, I’ve a hunch that serious questions would be raised about how jurors are selected. But we seem to accept the racial disparity when it cuts against a person of color. That’s Jim Crow’s legacy.
In employment law, a set of institutional practices that routinely produces results favoring the inclusion of one group at the expense of another group might be regarded as a sign of discrimination. A disparate impact on one group, we say, raises serious questions. Young black men are kept from jury service in Connecticut. It is disparate.
What accounts for this?
Don’t suggest that it is because so many of them have felony convictions, and are therefore ineligible to serve. No effort is made to screen folks with felony convictions before potential jurors arrive at the courthouse. The net we cast for jury service is simply coming up empty far too often when it comes to race. No one seems to care why.
Mounting a legal challenge to whether a defendant has been deprived a jury representing a fair cross-section of the community, a right we all enjoy under the Sixth Amendment to the United States Constitution, is all but impossible. Since the state refuses to keep statistics, any challenge must resort to guesswork. The few cases on point regarding challenges to the array of those called for service rely on sophisticated statistical tests that cannot be performed when there is no way of telling the race of those called to jury duty.
So we end up with largely, and often exclusively, white juries deciding the fate of young black men. We don’t raise questions. We don’t even make it possible to ask meaningful questions. The state puts on blinders when it comes time to give and tell us how many people of color were summoned to jury duty.
Is it possible that we don’t know the answer because we don’t want to know the truth?
Ideally, justice is color blind. I get that. But what am I to tell the next young black man who asks where his peers are when a panel of potential jurors enters the room — we’re all equal in the eyes of the law? That is a mere truism that denies the reality that race, like class, often defines and limits a person’s life chances.
That no one in the Judicial Branch can answer the simplest of questions about the racial composition of juries in Connecticut is a disgrace. When will we learn to have candid and courageous discussions about race?
Reprinted courtesy of the Journal Register company.
I suppose I should be relieved that the nation’s top cop came waltzing into New Haven the other day talking tough about gun violence, and promising safer streets. But I’m not.
As it turns out, Attorney General Eric Holder was selling the same flawed premises of the war on drugs, a never-ending crusade that has done little to stem drug use, but plenty to fill prisons with non-violent offenders.
Operation Longevity is the name of this new initiative. It’s a tawdry form of guilt by association. At a press conference attended by Holder, Mayor John DeStefano Jr., New Haven Police Chief Dean Esserman, U.S. Sen. Richard Blumenthal and Connecticut U.S. Attorney David Fein, lawmen tried to adopt a swaggering braggadocio.
“The first person that shoots and drops a body, they’re making the choice of who we focus our attention on. We’re not making the choice,” a deputy police chief said, heedless of grammar. This new enforcement initiative is based on the notion of “group accountability,” the lawmen said.
Did they say group accountability?
Let’s get real about the law for a moment, and parse the barnyard offal from what can withstand legal scrutiny. But first, some basics on criminal law.
Almost all crimes require that a person perform some prohibited act with an accompanying state of mind. Lawyers with taste for a little bit of Latin refer to an actus reus and a mens rea. A person might commit a bad act, but lack any culpable mental state, for example; that would be legal insanity.
I assume by “dropping a body,” the new sheriff in town was referring to the crime of murder. In courts of law, murder is the simplest of crimes. A person commits murder when, with the intent to cause the death of another, he causes that death. It really is that simple. Murder is what is known as a specific intent crime. In other words, you have to have it in mind to kill another when you pull a trigger.
Suppose you kill another with something less than the specific intent to do so? If you are reckless, that is, engaging in conduct carrying a significant risk of harm while heedless of the consequences, you might be guilty of the lesser crime of manslaughter. If you were merely careless, or negligent, to some significant degree, you might be guilty of a still lesser crime, criminally negligent homicide.
These concepts lurk in the lawyer’s mind whenever one person causes the death of another. They are what are known as theories of liability.
You can be an accessory to murder if you solicit, assist, cajole or otherwise come to the aid of the person actually pulling the trigger. But, again, something other than being in the wrong place at the wrong time, or associating with the wrong people, is required to be liable as an accessory.
Finally, you might also be liable as a conspirator, meaning you entered into an agreement to engage in illegal acts, and another acts, within the scope of the conspiracy, in furtherance of your joint, and unlawful, ends.
(If your head hurts ever so slightly after this sprint through the basics of liability, you now have a partial answer to the question lay people like to throw at lawyers defending heinous accusations: How can you defend those people? Crime is never quite as simple as it looks in the boldface print of a headline.)
What’s this to do with Operation Longevity?
Prosecutors are promising to expand theories of liability in ways that bend the law in new and novel ways. If a member of my crew kills a competing gang member, just how am I liable for my brother’s actions? The criminal law abhors guilt by association. Indeed, the defense of mere presence at the scene of another’s crime is well known in the law. Operation Longevity seeks to eliminate that defense for unpopular people.
What’s particularly galling about this new initiative is that the law needn’t be stretched at all in an effort to keep guns out of the wrong hands.
In the civil courts, liability for the acts of another is imposed without the fussy distinctions common to the criminal law, at least where inherently dangerous products are at issue. Place a defective product into the stream of commerce, and you, and all others who distributed the item, share liability.
So why not a law that creates an incentive among gun manufacturers and owners to keep their guns out of the wrong hands? A firearm manufactured by Smith & Wesson is used to kill someone? Then fine the manufacturer $250,000. Don’t stop there. Fine the dealer who sold it $10,000. Fine the owners who registered the gun $5,000. All this could be done in the same manner we seize the property of drug dealers, by launching parallel civil proceedings once criminal charges are lodged.
Creating financial incentive for those who manufacture, distribute and legally possess guns to keep guns out of the hands of unlicensed users should be a law enforcement officer’s dream come true. Unlike the market for narcotics, which are often produced overseas and smuggled into the United States, we know who is creating guns, who is selling them, who is possessing them. Did someone say group accountability?
We won’t do it. We love our guns. We want to protect ourselves against dangerous criminals, those gang-bangers who “drop bodies.” But who is going to worry about the kids swept up by eager lawmen armed with this novel embrace of guilt by association? Not the gun lobby — these kids are too often black, Hispanic, broke and trapped in urban enclaves the privileged avoid.
This is more than a war on gun violence. It’s just like the drug war. Cast a wide net, arrest ’em all, lock ’em up, and throw away the key. It won’t stop the body count. But it will imprison the bodies we refuse to integrate in a healthy society.