What Was Different This Time

Posted by on April 28, 2021 8:50 am
Categories: Everything Else

The jury convicted the former Minnesota police officer Derek Chauvin on the weight of the evidence before it: video footage, expert testimony, and eyewitness accounts.

But even with all that evidence, convictions don’t happen on their own. Twelve people, selected by lot from the public, must come to a unanimous decision. That jury—who it comprised, how those people saw the world—was of enormous consequence. This wasn’t just any jury, and the difference that made should invite a major reckoning with how juries—the deciding bodies of the country’s judicial system—are selected in America.

I have been studying juries for many years. I have written about juries in historic trials such as those for the Camden 28, the Central Park Five, and Angela Davis. But starting late last year, one took over my work: the Chauvin trial. Great interest in it led the Hennepin County clerk to make public the initial questionnaire sent to jurors, and District Judge Peter Cahill decided to allow television cameras in the courtroom, a first for the state of Minnesota. From voir dire—the interview between the judge, attorneys, and each potential juror before a jury is selected—to the attorneys’ opening and closing statements to the testimony of more than 40 witnesses during the trial, everything was viewable via live-stream. What I saw was a jury-selection process that substantially departed from the country’s norms, resulting in a racially mixed jury, a number of whose members criticized American law enforcement for systematically discriminating against Black people.

[David A. Graham: Chauvin’s conviction is the exception that proves the rule]

All the jurors interviewed during voir dire were familiar with the case, and some had seen the video of George Floyd’s death. To varying degrees, they all understood the weight of the case and the intense media scrutiny it would undoubtedly receive, yet many were eager to serve. When interviewed by the defense counsel, Juror 27, who identifies as Black and an immigrant and who ultimately ended up on the jury, said that he had spoken with his wife about the killing shortly after it happened. “We talked about how it could have been me,” he said. Juror 91 put it simply when she said, “I’m Black and my life matters.” That these people held these views and still served on the jury shows a path toward greater democratic representation in America’s courtrooms.

There were many reasons to think things would not go this way—that Chauvin would be tried by a mostly white or all-white jury, and that people with systemic critiques of how criminal justice works in American would be struck from the jury pool. For one, Hennepin County, where the killing took place and where the trial was held, is nearly three-quarters white. For another, studies have found that Black jurors are less likely to be called for jury duty and less likely to be selected to serve. And finally, there was the complication of having the trial during the coronavirus pandemic, which has disproportionately affected Black and brown communities. According to the former Minneapolis public defender Mary Moriarty, during the pandemic, juries have been even whiter, on average, than before the pandemic.

Yet ultimately the jury seated in the Chauvin case included four Black people, two people who identify as mixed race, and six white people. (The jury comprised 14 people, including two alternates who were both white.) Much of the credit goes to Judge Cahill, who conducted the jury-selection process. Cahill set a tone of honesty and inclusivity during jury selection, emphasizing that he would consider the totality of a juror’s answers and not focus on individual statements when determining whether a juror was qualified to serve. He expected jurors to have strong feelings about Floyd’s death, but what was most important to him was a juror’s willingness to take on the responsibilities of legal judgment, including a commitment to the conventions of a fair trial.

Evidence of his approach was apparent from the start. The selection process began in December when an in-depth questionnaire was mailed to more than 300 prospective jurors. It contained detailed questions about Black Lives Matter, Blue Lives Matter, and impressions of the police. Given how Floyd’s killing galvanized the Black Lives Matter movement, both sides in the trial had an interest in learning how jurors understood the protests and the concurrent civil unrest, including instances of looting and the destruction of property.

But stating views sympathetic to Black Lives Matter did not result in jurors getting removed from the jury pool. During voir dire, a majority of the 12 seated jurors said they “somewhat agreed” or “strongly agreed” with the statement on the questionnaire that “Blacks and whites don’t receive equal justice in this country,” implying that they believe that racial discrimination in the legal system goes beyond isolated incidents and a few bad actors. The same majority also had favorable opinions of Black Lives Matter and disagreed with a statement that the media exaggerate claims of racial discrimination.

It’s difficult to overstate how significant a departure from the norm this is. In many similar cases, a potential juror’s mere intimation of a belief in systemic injustice makes judges and attorneys nervous—especially when the juror is a person of color. When Crishala Reed said that she supported Black Lives Matter during voir dire for a 2016 case (People v. Silas) in Contra Costa County, in the San Francisco Bay Area, the prosecution asked her if that meant she supported the destruction of property. Reed answered that she did not, but the attorney did not think the response was credible and struck her from the jury, saying that she “rolled her eyes” when she answered. Therefore, the attorney later explained, her attitude and not her race was the basis for the strike. The judge upheld the strike, expressing similar concerns about whether any supporter of Black Lives Matter could fairly apply the law as a juror. In another example—the Connecticut case of State v. Holmes—a Black juror who was employed as a social worker said that he had observed clients and family members who were treated unfairly by the legal system because of their race. At the same time, he affirmed that he could make decisions as a juror based on the facts of the case and be open to both sides. After the prosecutor expressed his concern about people who use their time as jurors “to fix the system,” the juror was excused. While the dismissal was found to be appropriate on appeal, the case prompted a statewide commission to study the problem of racial bias in jury selection.

But in the Chauvin trial, the attorneys and the judge did not treat critiques of racial bias in the legal system as something that would inherently bias a juror. This was clear once voir dire began. In one instance, a potential juror—a Black man—spoke about the sadness and outrage he felt at seeing the cellphone video that had circulated around the world: “It’s another Black man being murdered at police hands,” he said. Judge Cahill said that he believed this was an “honest opinion,” “widely held,” and not necessarily an obstacle to being an impartial juror. This may seem like a small thing, but to say that jurors can hold systemic critiques and still be fair inverts the old paradigm, which saw an absence of such critiques as a harbinger of neutrality—which of course is its own kind of bias.

Additionally, during voir dire, several jurors spoke about their own experiences with police violence, and those accounts were not disqualifying, as they almost certainly would have been in other trials. Doing so is a particularly egregious practice because it ensures that for many Black jurors, past unequal treatment by the police will result in continued alienation from the legal system. Rather than allowing these jurors to draw on what they have learned through their lived experiences as citizens—one of the reasons the Founders fought to include “trial by jury” in the Sixth Amendment—judges have often conveyed to Black jurors that their experiences make them ineligible for service. But, again, that was not the case under Judge Cahill. When questioned about his perspective on the police, Juror 52, a Black man who works in the banking industry and coaches youth sports, spoke of witnessing a Minneapolis Police Department officer “body slam and then mace an individual simply because they did not obey an order quick enough.” Juror 52 was nevertheless seated.

[Adam Serwer: There will be more Derek Chauvins]

Even with Judge Cahill’s more open standards, certain political ideas do seem to have remained outside the bounds of the court’s approval. Almost all of the jurors who made it to voir dire had a negative impression of the movement to defund the police or were unable to express an opinion about it, because they didn’t have enough information. While a critique of the police and the legal system was not a bar to being a juror in this case, believing that radical changes to the structure or purpose of the police are necessary most likely was. A strong agreement with that position on the questionnaire was possibly a valid reason for the judge to dismiss a juror prior to the interview stage.

In voir dire, potential jurors can be rejected either by the judge—which is called dismissal for cause—or by the attorneys via peremptory strike. As is clear, Judge Cahill did not dismiss jurors who held systemic critiques of law enforcement. But what’s maybe even more surprising is that neither did the attorneys. The only limitation on the use of strikes is that a juror cannot be dismissed on the basis of race alone. In the Chauvin case, the defense was entitled to 18 peremptory strikes and the prosecution 10, but both sides had strikes remaining when all jurors, including the alternates, had been selected.

This suggests that both sides were being cautious with their strikes, declining to use them on jurors who appeared only slightly unfavorable to their side. The prosecution didn’t strike Juror 92, a white woman who said that she had great respect for police officers and thought that citizens should cooperate with the police, as she herself had done at traffic stops. Similarly, the defense did not strike Juror 44, a white woman who testified that “we have disenfranchised [minority citizens]. Laws were created many years ago that have not kept up with society and cultural changes.” Later, she said, “There’s inherent bias in the system.” The defense attorney forcefully pushed her to clarify whether she thought all officers were complicit in wrongdoing (she did not) and whether the media had ever exaggerated bias (sometimes), but did not dismiss her.

While we can’t know why the attorneys proceeded so cautiously with their strikes, we can clearly see the effect of that choice, and the implications for the rules that govern peremptory-strike use are enormous. The improper use of strikes to dramatically curtail the number of Black jurors has long been seen as an intractable problem. Judges have been inclined to give attorneys the benefit of the doubt when asking them to provide racially neutral reasons for the strike, as required by the procedure articulated in Batson v. Kentucky (1986), and neither prosecutors nor defense attorneys want to give up their right to peremptory strikes. The result has been—especially in certain southern states—trial after trial with all-white (or nearly all-white) juries, even in counties that are heavily Black.

This has led California and Washington State to change their procedures in the interest of more representative juries. Now, according to Washington’s General Rule 37, objections to peremptory strikes will no longer be restricted to instances of purposeful discrimination by the attorneys; rather, a judge must consider whether an “objective observer” would view race or ethnicity as a factor leading to the peremptory strike. This change opens up the possibility of a judge recognizing implicit biases in the use of peremptory strikes, and draws the judge’s (and attorneys’) attention to the composition of the jury as a whole. A judge must now pay heed to the ideal of a racially diverse jury through the fiction of an “objective observer”—one who would presumably be concerned if jurors of color kept being dismissed either for marginal reasons or for reasons stemming from the history of policing in their communities.

While Minnesota has not adopted such a rule, the actions of the attorneys and the judge in the Chauvin case evinced a similar sensibility, because they all seemed to be committed to a racially and politically mixed jury—within certain limitations. When the defense used a peremptory strike against Juror 76, a Black man who used to live in the neighborhood where Floyd was killed, the dismissal followed a familiar script and showed how, even in this case, Black jurors who are candid about their life experiences may be more likely than other jurors to be dismissed by the attorneys. The defense counsel, Eric Nelson, asked the potential juror more questions about a variety of topics—his previous jury service, his brother’s experience with the law, his military service—than he asked other jurors. Once Juror 76 recalled that the police officers in his old neighborhood used to blast “Another One Bites the Dust” from their squad car after someone in the community was arrested or shot, Nelson asked him over and over again whether he could be fair, expressed incredulity when he stated that he could, and then proceeded to ask him the question in a different way. Nelson petitioned the judge to remove the juror for cause; when the judge declined, Nelson decided to use a peremptory strike.

[Read: Why Minneapolis was the breaking point]

Another limit of the more capacious approach to jury selection came with Juror 120, who was dismissed not for his critique of the legal system but for an analogy that dominated his reaction to the video of Floyd’s death. During Juror 120’s initial questioning by the judge, he started expressing his uncertainty about whether he could truly be fair in the case. He turned to the judge and said, “Do you have any brothers?” “I do,” Judge Cahill replied. The juror went on to describe an analogy that kept coming to mind when he thought about Chauvin. “So you’re tussling with your brothers. If one of your brothers says, ‘I give up, etc., etc.,’ you stop, right?  … You have to stop when someone says, ‘No more.’” Judge Cahill suddenly grew still, touched his mask, and replied: “As the little brother to three older brothers, I know exactly what you are talking about.” Then, almost apologetically, he added, “I am going to release you.” No further discussion of the case, the police, or Black Lives Matter was necessary for the judge to decide that this juror was unfit for the case.

In many cases, a disqualifying life experience involves a prospective juror’s firsthand witnessing of police violence or coercive plea bargaining, for instance. In the case of Juror 120, however, the issue almost appeared to be one of excessive moral clarity. It illustrates the paradoxical nature of jury service—and the expectations of the ideal juror. Juror 120’s moral clarity was what made him unfit for service. In other words, for a juror, moral clarity can conflict with the openness needed to fairly consider both verdicts. A juror who is too convinced of a defendant’s guilt before hearing the evidence, as Juror 120 seemed to be, cannot be a fair juror. But Judge Cahill recognized that jurors in this trial might hold views about the reality of systemic racism and its deep moral costs while still being able to perform their role as impartial jurors. The result might in fact be greater fairness and—perhaps—healing: A fair trial by jury may be one of the best ways to foster trust in the legal system.

Watching the three weeks of jury selection and hearing potential jurors speak about their pets and favorite sports teams, in addition to their perceptions of racial discrimination, I was reminded that jurors are called to serve precisely because of their lack of expertise in the law. They are not repeat players in the courtroom with incentives to reach a particular verdict. But this has it backwards: It is because of their distance from the work of the court that they are better able to understand what it means to feel the power of law enforcement as an external force in their lives and to determine its legitimacy. The jury in the Chauvin trial included a broader perspective of life experiences than is typical in America’s courtrooms, better fulfilling the ideal of why we have juries in the first place. During jury selection, the jurors who spoke about Black Lives Matter and the pattern of police violence in this country were unusually honest about who we, as Americans, have been. And, with their verdict, they showed us where we might yet be going.

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