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.