When I wrote last week about seeing a jury panel in Norwich from which black males were entirely absent, I assumed there must be some reasonable explanation. So this week, when I subpoenaed state officials to an evidentiary hearing, I was stunned by what I learned. No one, apparently, has a clue about how and whether the state is doing more than playing lip-service to producing juries that represent a fair cross-section of the community.
How, I asked senior jury administrators from the Judicial Branch, am I to explain to my client, a young black man accused of murder, the fact that not one African-American appeared to be interviewed as a juror? The Judicial Branch hasn’t a clue. It doesn’t keep records on race or ethnicity. The standard juror questionnaire informs potential jurors that demographic information is requested, but no one needs to respond to questions about their race or ethnicity if the question is offensive.
Question: How do you assure representative juries when you choose willful blindness over the truth?
Perhaps, I thought, the administrators of the various pools from which jurors are drawn would have answers. The Secretary of State’s Office, from which lists of registered voters are generated; the Department of Revenue Service, from which list of taxpayers are gathered; and the Department of Motor Vehicles, from which lists of those seeking state identification cards are provided, all had a simple and elegant answer: We don’t keep statistics on race.
As of the time of this writing, only the Labor Department, which garners list of unemployment claimants, could offer the promise of any information, but, a lawyer for the department told me, they didn’t think there was information about the racial makeup of lists of potential jurors sent to the Judicial Branch.
So here is where things stand: The Judicial Branch obtains lists of potential jurors, but makes no effort to determine whether the lists yield representative juries. The administrators of the various pools from which venire people are drawn have no idea. We simply summon people to court and hope for the best. The lists reflect a bias in favor of taxpayers, voters and folks with a declared stake in the world as it works right now. News flash: The world isn’t all peaches and cream. Why not include those struggling at the margins?
Criminal defense lawyers statewide whisper about the racial bias jury panels. Black men are as rare a Summer’s snow on most panels.
I thought I might be able to learn a little something about the racial composition of the panels by finding out about the race of those prosecuted for failure to respond to a jury summons, which is, after all, a violation of the law. It turns out hundreds of names of so-called delinquents are sent to the Attorney General’s Office each year. Guess how many of these folks have received a summons for violating their civic duty in the past three years? Zero.
Huh? I thought service was a civic duty? I guess we only want the right sorts of people to show up.
The state is quick to declare that these mere numbers mean nothing. We need to do a statistical analysis of the panel to determine whether there is some sort of disparate impact, or racial bias, at work. But if the state refuses to keep any statistics on the potential jurors who do get summoned, it is impossible to do more than speculate about the composition of those who show up to serve. Just try proving a case based on speculation, go ahead.
I know what I see. One panel after another devoid of black men. Try asking questions about where they all are, and you’ll be met with incredulity: I had a prosecutor say on the record he couldn’t tell the race of the panelists. Open your eyes, I say. Or imagine how you’d react if you walked into a courtroom to face a jury of 12 souls with skins as dark as my client’s. Some part of you would feel betrayed, I am sure of it.
Start putting young white men on trial before all black juries and watch how quickly folks scramble for an answer to how this happens. I doubt tolerance for willful blindness would exist for long in such a world. But we tolerate the imbalance when it cuts against a black man. Why?
The Judicial Branch isn’t prepared to act on this topic without legislative guidance. I am calling on the General Assembly to convene a task force on how to create more representative juries in Connecticut. We would do better if we wanted to do so. It shouldn’t take litigation to force the issue, although, I suppose, the challenge of attacking this in justice is an invitation worth accepting.
Reprinted courtesy of the Connecticut Law Tribune.
Call me a racist, but Connecticut does not do enough to assure that criminal defendants face a jury of their peers.
I’ve just finished jury selection in a murder case in Norwich. We finally picked a panel after six full days of jury selection. One hundred and fifteen men and women sat through some portion of voir dire. As near as I can tell, there was not a black-man among them. My client, charged with murder, is African-American. What am I to tell him about a jury of his peers?
One answer is that race doesn’t matter at all. We’re all Americans. We believe in equal protection of the law. Justice is color blind.
I just don’t believe it. That’s why I confess to being a racist.
If I were facing 60 years in prison and wanted a jury to hear my side of the story, I’d be uncomfortable pleading my case to a jury composed of all black souls. I feel guilty admitting this, as though I am confessing to a secret better left unconfessed. I don’t doubt for a moment that a person of color can be fair and impartial, but the prospect of an all black jury daunts me nonetheless. I would feel as if the jury weren’t fully representative, as if people who looked like me had been excluded.
In 2010, 11.1 percent of Connecticut’s population was black. (The national figure was 13.3 percent.) In New London County, where Norwich is located, 6.5 percent of the population was black in 2010.
I would therefore have expected to see at least a handful of young black men in the jury pool in Norwich. What explains their absence? There were plenty of young white men.
Jurors are drawn from lists of registered voters, licensed motor vehicle drivers, income tax payers, and unemployment compensation recipients. It may be that young black men are under-represented from these lists for socioeconomic reasons. If you don’t have the resources to own a car, why have a license? Unemployment among young black men is a huge problem, so don’t expect to see these fellows collecting unemployment. And if you are broke, you’re not filing a tax return.
And then there is the exclusion from service for those convicted of a felony. Incarceration rates for young black men are disproportionately high. Felons can’t vote, either – one study reports eight percent of African-Americans cannot vote because of felony convictions, compared to 1.8 percent of whites. So strike young black men from the list of potential jurors on that account as well.
The United States Supreme Court held long ago that "selection of a ... jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial." We’re not doing more than paying lip service to this requirement in Connecticut.
Under state law, a defendant can only succeed in proving a violation of the fair cross-section requirement if he or she can show "systemic exclusion" in the jury selection process. It is an almost impossible barrier for defendants facing a Lilly white jury to overcome. Why the complacency about de facto Jim Crow jury pools?
I’ve heard rumblings in courtrooms throughout the state about the unrepresentative character of juries. I’ve had young black men turn to me in anger during jury selection to ask where their peers were. I suspect that if more white folk were facing all black juries something would be done about this failure to produce representative jury pools.
Perhaps we need to require jury administrators in the various courthouses throughout the state to pay more attention to the lists they administer. When a person does not show up for jury duty, how often is a summons really sent to the no-show requiring them to come to the courthouse to explain their dereliction of civic duty? Do we have any data on who is not showing up to court? Is the court system letting people opt out of the system simply by ignoring a summons. Are those who feel disenfranchised permitted to stay at home? And do we really need to exclude felons from jury service?
We build communities by providing equal opportunity and requiring participation in civic life. We’ve marginalized young black men in our economy. We’re keeping them out of the jury room. We’re putting them in prison. Is all this truly mere coincidence? I don’t think I am the only racist out there.