To whose advantage is an all-white jury? Certainly not to society at large and not to defendants of color.
On the front page of The New York Times this week, legal correspondent Adam Liptak explored this question: “Are criminal juries warped by racism and bias?”
Researchers studying areas in Alabama, Louisiana, and North Carolina have documented prosecutors using peremptory challenges to strike black jurors at double or triple the rates of other potential jurors.
Liptak notes that keeping blacks off of juries not only raises the question of fairness – especially given how frequently the defendants in all-white jury cases are black – it also robs African Americans of one of Democracy’s most important civil rights, jury duty.
But, as Liptak reports, many prosecutors and defense lawyers nonetheless defend peremptory strikes because they allow attorneys “to use instinct and strategy to shape unbiased and receptive juries.” One expert the journalist cites, Dale Cox, acting district attorney in Louisiana’s Caddo Parish, says that explanations other than racism may well account for the disparity between white and black jury members. Jury selection is more art than science, Cox says.
We wholeheartedly agree that the art of effective jury selection depends on refined instinct and strategies forged by extensive real-world courtroom experience.
That said, it is flat out dumb for any attorney to strike a potential juror based primarily on race. Doing so not only reeks of bigotry and harms public confidence in our judicial system, it often results in seating an unfavorable (white) juror in the mistaken belief that ethnicity is the key determinate in how jurors will vote.
In our extensive experience, involving hundreds of prosecutions, race is not the primary indicator of how a prospective juror will view the evidence.
For example, in her work as a prosecutor, Shelley Albert often tried drug cases. In such instances, the street or neighborhood where a prospective juror lived – not race – counted heavily in her selection process. “What I wanted were the moms (often members of a racial minority) who each morning and afternoon had to walk their kids past the broken crack vials on the street,” she recalls. From a prosecutor’s perch, Shelley says, “The people most affected by crime become some of the best jurors.”
When there are important biases that are likely to sway how jurors vote, they are seldom only skin deep. Carole Gold’s intuitive gift allows her to assist counsel in ferreting out the unseen – but highly relevant – biases and unconscious emotions that do prejudice prospective jurors.
Carole draws on her intuition, coupled with years of legal experience, to detect intolerance, hidden agendas, and bias. Her insights apply not only to potential jurors, but also to unseen motivations that drive witnesses, opposing counsel, and even the judge.
As Liptak (whose primary beat at the Times is covering the Supreme Court) points out, the nation’s highest court generally allows lawyers to dismiss potential jurors without offering any explanation – unless the lawyers are accused of racial discrimination.
Some legal veterans, seeking to reduce discrimination, argue that the best solution is to pare the number of peremptory challenges that each side is permitted or eliminate such challenges altogether.
Doing so might create the appearance of reducing courtroom bias, but would do little to banish it.
For that, lawyers and their clients need to sharpen their voir dire skills, utilizing cutting-edge techniques designed to surface intolerance that is both deliberately and unknowingly masked.
As more lawyers come to recognize and embrace the important role that trained legal Intuitives, such as Carole, play in exposing meaningful partiality among jurors and witnesses, we can anticipate jury pools where race and ethnicity play a steadily diminishing role.