Saturday, January 19, 2008

African-American Jurors, Batson, and the D.A.'s Office

On a serious note, a lot of things have been brought up lately regarding whether or not the D.A.'s office is systematically striking African-American jurors from panels. Alvin Nunnery in his Fox 26 interview regarding the "Canadian" e-mail alluded to the idea that there is an attitude within the D.A.'s Office (even going back to when he was a prosecutor) that an African-American juror is somehow "incapable" of serving on a jury as a fair juror.

It is an interesting debate, and I'm not going to enter it. As far as I'm concerned, if you believe that the D.A.'s office is racist, there is nothing that I can say on this blog that will change your mind of that. I'm also pretty sure that I won't be changing anybody's mind on the issues of the death penalty, abortion, or the fact that the Dallas Cowboys aren't really "America's Team".

But I would like to throw this out for your consideration, and I hope there is a frank discussion over it.

Proposition # 1 - In every criminal trial, both the Defendant and the State are entitled to a fair trial. That means that no juror should be seated that already has a bias or prejudice that could affect the State or the Defense's case. If you don't agree with that principle, then this post is probably going to be meaningless to you.

Proposition # 2 - an effective attorney should seek out those biases or prejudices when during jury selection, and make sure that those jurors are struck for cause (and if that fails, exercise a peremptory). If you don't agree with that principle, then you aren't an attorney.

Proposition # 3 - Historically, the Criminal Justice System has been extremely unfair and unkind (to put it mildly) to African-Americans. If you don't agree with that principle, you clearly live in a cave and aren't familiar with American History.

I'm a white male. I can remember multiple occasions as a kid where I was walking in the street where a sidewalk was provided when a police car drove by without stopping. I wasn't stopped. I wasn't searched. Nobody ever stopped my car because it looked like I was "didn't belong" in the neighborhood where I was driving. When I get pulled over for speeding, the officer (or more commonly the DPS trooper) never asks me if he can search my car.

Prosecutors are very much aware of the fact that probably every African-American member of a jury panel has been treated like crap at some point during his or her life by a member of law enforcement, or perhaps even a District Attorney's office.

It is just the Historical Shame of the Criminal Justice System, and it is a shame that cannot be erased.

Does it mean that all cops are racists? Of course not.

Does it mean that all D.A.'s are racists? Of course not.

But a jury trial in a criminal case is most often the deciding of fact around a particular incident and whether or not a Defendant is the factually and legally responsible for it.

It is not a referendum on whether or not racism exists in the criminal justice system.

A potential juror who is going to let their bad experience with law enforcement shape their verdict shouldn't be on a jury, regardless of their race. I think prosecutors are very aware of the fact that in dealing with an African-American potential juror. It isn't a concern over whether or not that juror is "incapable" of serving (as Alvin listed). It's more a matter of whether or not the law enforcement through its own bad actions, has ruined this juror's perception of the System as a whole. Does that make sense?

In other words, if a prosecutor is wary of an African-American potential juror, its going to be because that the prosecutor knows the lengthy history of wrongs committed against African-Americans by law enforcement. That prosecutor doesn't want it to affect his case.

UPDATE: After reading some of the scathing posts and notes relating to the post, I realized that I didn't really clarify what I meant in the last paragraph. I've updated what I badly stated in the original article with an additional paragraph.

I was trying to explain in this article that no prosecutor thinks that an African-American juror is "incapable" of serving, as Alvin accused all prosecutors of being. The unfortunate reality is that some times the experiences suffered by some people is to the degree that they can't be fair. What I was trying to justify in the article was the asking of questions regarding that previous mistreatment, and it should in no way be read as advocating the excluding of anyone from a jury who is qualified and fair.

10 comments:

PJ said...

The problem is that what you are describing isn't "bias" or "prejudice" at all. You are talking about systematically excluding a class of people whose experiences with law enforcement and the criminal justice system actually make them better qualified to serve.

A juror from this class of persons will be more likely to understand, say, why not to believe a snitch who is testifying only in exchange for a plea bargain with a reduced sentence. When a police officer testifies that a defendant gave a statement "voluntarily," this juror might understand that just because you signed a piece of paper in a police interrogation room does not mean you truly did so "voluntarily." In short, this juror might have a better understanding of those very things that are most responsible for wrongful convictions.

Perhaps had Dallas County, for example, not had a long history of discriminating against this class of persons, they would not have so many persons now being freed based on exonerating DNA test results. (And if you think Dallas County is anomalous in this regard, it isn't. Houston just has not had the kind of attention paid to it, nor its office the openness to DNA testing, to test its convictions.)

So, if it's convictions you're after, and not justice, then I can understand wanting to exclude such an insightful class of persons from a jury. But do not confuse insight and experience for bias. These things do not mean they have prejudged your individual case.

(Also, I vehemently disagree that the State has a "right" to a fair trial. It is putting on the trial and has made the rules for it, which is why defendants have "rights" as against it, such as a right to a fair trial.)

Anonymous said...

PJ,
You say that you disagree about the State having the right to a fair trial. If the State doesn't have the right to a "fair trial", what, (if any) limitations are there against what the defense should be able to do during a trial? The beyond a reasonable doubt standard "theoretically" puts the State at a disadavantage during trial.
I'm also curious as to how you reconcile the jury instruction in all trials (that the jurors are not allowed to rely on their own personal exeriences during deliberations, but are supposed to solely rely on the evidence placed before them during trial), and the idea that putting a person with preconceived ideas about the police to be fair game with in the Rules of Criminal Procedure?
You also make the statement that an African-American juror is "better" qualified to sit on a jury. By the mere fact that you are using the term "better", doesn't that mean that we've now stepped away from the idea of "neutral"? Under that theory, I would also think that a police officer would be "better qualified" to serve on a jury, because they clearly have an understanding as to how the system works.

You wrote: "So, if it's convictions you're after, and not justice, then I can understand wanting to exclude such an insightful class of persons from a jury."

If a prosecutor is entering into a trial then it is safe to assume that he or she is seeking a conviction. Of course prosecutors have the duty to seek justice, but if they are entering into trial, their belief is that a conviction IS justice. If they don't believe in their case, they shouldn't be starting a trial. So, yes, I concede your point on that particular sentence.

You also wrote: "But do not confuse insight and experience for bias. "

I don't think any lawyer is afraid of a juror having insight and experience, but they are often times scared of the possibility that it will become bias.
I think that trying to find that line where experience ends and bias begins is what gets prosecutors into trouble in the first place.

Mark Bennett said...

It's an excellent post, AHCL.

PJ is correct that State doesn't have a right to a fair trial (see Collier v. Poe). It has the power (through its judicial branch) to limit what the defense can do during trial, limited only by its respect for the constitutions.

This leads naturally to a jurisprudential discussion of what, exactly, "rights" are and what "powers" are, but we'll save that for another day; instead, here's a farfetched (I like to think) illustration: If the State of Texas didn't honor the Sixth Amendment the ADA (part of the State) could object to the defense being allowed to cross-examine a witness and the trial court (another part of the State) could sustain the objection. If the defense continued its cross examination the trial court (still part of the State) could order the bailiff (an armed part of the State) to make the defense stop.

The defendant could appeal, but the court of appeals (part of the State that denies the Sixth Amendment) would uphold the conviction. Then the defendant could appeal to the U.S. Supreme Court, which might reverse, but which has no armed forces to force the State to comply with its judgment. So if the State continued to reject the right to cross-examination, there would be nothing the defendant could do about it.

Do you really think that lawyers are unafraid of jurors having insight and experience? It seems to me that lots of lawyers are very afraid of a juror having insight and experience. You can see it in most voir dires (I watch lots of voir dires): a juror starts talking about his insights and experiences and the lawyer doesn't like what he's hearing and doesn't know what to do with it, so the lawyer shuts the juror down.

A Harris County Lawyer said...

Thanks Mark. I think you are right to call me out about lawyers, in fact, being afraid of a juror with insight and experience. Prosecutors would love to have a juror on his jury who had a family member that was the victim of a violent crime. That same juror would most likely scare the piss out of a defense attorney. It's just all a matter of whether or not that insight and experience is good for our side, I suppose.
Yes, I think the scenario you described in your first paragraph is as far-fetched as it is bleak. However, in either your blog or my own blog, I announced that I was not quite as cerebral as you are, so I'm bowing out of that argument. Discuss amongst yourselves . . . if you must.

Anonymous said...

This isn't much of a blog. You delete comments you don't agree with or deem inflammatory. What use is it having a blog on Harris County CJ if you don't discuss this subject. I mean, has there ever been a worst media interview or denial than that given by Trent a few weeks ago? Really now, Trent has a very lame excuse for the use of the word canadian. Very sad, really, and a black eye to all fair Texas prosecutors.

A Harris County Lawyer said...

Anon,
Sorry you don't like the blog. I've only deleted one comment, and that was because it specifically named a person that they thought was me. It was a one line sentence and other than saying that they thought it was me, offered no other thoughts on any of the topics. I also announced that I had done it, and pretty much covered the content of the statement. No other comments have been erased.
If you've posted something that you don't see on the blog, please let me know. Sometimes there are technical difficulties. I tried posting a couple of things on Mark Bennett's blog last week, and they disappeared without ever posting.
My advice is that if you've typed up a lengthy comment on something, before you attempt to post it, highlight it and click "Control-C". That will copy it, and in the event it doesn't post, you can try again by clicking "Control-V" in a new comment space to re-paste your comments.
That's the extent of my techno-knowledge, however.

pj said...

anonymous wrote: "You say that you disagree about the State having the right to a fair trial. If the State doesn't have the right to a 'fair trial', what, (if any) limitations are there against what the defense should be able to do during a trial? The beyond a reasonable doubt standard 'theoretically' puts the State at a disadavantage during trial."

The beyond a reasonable doubt standard is one of the defendant's "rights" that a State must observe to provide a defendant a fair trial. The very reason defendants have these rights is because it is the State that is putting on the trial and making up the rules. (Prosecutors in criminal actions seem to think they are simply a party to litigation and don't appear to understand that they are more than this. They are a part of the entity (the State) that has created the courtroom and made up the rules in the first place. This is a big deal when what is at stake is somebody's liberty or life.) The limitations on the defense are those the State places on it that do not offend any of the rights recognized by state and federal constitutions, e.g., rules of evidence, rules of procedure, etc.

anonymous wrote: "I'm also curious as to how you reconcile the jury instruction in all trials (that the jurors are not allowed to rely on their own personal exeriences during deliberations, but are supposed to solely rely on the evidence placed before them during trial) ..."

If jurors did not rely on their personal experience during deliberations, they would have no way to judge credibility. Literally, it would be impossible. If in the trial they heard Witness A testify to X and Witness B testify to not X, it would cause some kind of processing error unless they resorted to something outside the trial to make a judgment, e.g., demeanor and their experience with people in the real world who have lied. Jurors aren't robots, and they can't turn into them, no matter what we tell them.

anonymous wrote: "...and the idea that putting a person with preconceived ideas about the police to be fair game with in the Rules of Criminal Procedure?"

I did not say anything about "preconceived ideas about the police." I said people with insight and experience. One's insight and experience can lead to a better understanding of how, in any given case, a confession can be false or coerced, as just one example among many. A person who has and applies this insight and experience can still judge an individual case without having or resorting to any generalized, preconceived ideas. Presumably, the trial would produce evidence on which to make that decision in a given case. Like the above, they would resort to their real-world experiences to judge credibility.

Realistically, everybody has preconceived ideas about everything (including those who give undue and undeserved credibility to police testimony because of their preconceived idea that police officers are honorable and honest). So there's no way to make a justification on this ground for excluding the class of persons under discussion.

anonymous wrote: "You also make the statement that an African-American juror is "better" qualified to sit on a jury. By the mere fact that you are using the term 'better', doesn't that mean that we've now stepped away from the idea of 'neutral'?"

I think they are better, in the sense that they literally have more expertise. (And, here, I'm not talking about African-Americans, per se, but the broad class of persons whom the blog poster correlates with African-Americans.) And I don't think this has anything to do with neutrality, but with accuracy. A person who has more expertise in a given subject will make a better judge than somebody who does not, i.e., they will answer the question more accurately more times. But both can be equally "neutral," in the sense that they are equally free of bias and prejudgment of any given question before them.

anonymous wrote: "Under that theory, I would also think that a police officer would be 'better qualified' to serve on a jury, because they clearly have an understanding as to how the system works."

I think, ideally (emphasis on the ideal), they could be better in this sense, but I don't see this as being the same question. Here you are talking about a small and narrow class of persons based on their profession alone, rather than a much more generalized class of citizens, like the blog poster. One of the problems with this narrow class of persons as defined is that they are part of the State, and an intimate part of its law enforcement at that. A bias or prejudice is a much fairer inference than the extremely broad class of persons the blog poster has put up for discussion.

anonymous wrote: "If a prosecutor is entering into a trial then it is safe to assume that he or she is seeking a conviction. Of course prosecutors have the duty to seek justice, but if they are entering into trial, their belief is that a conviction IS justice. If they don't believe in their case, they shouldn't be starting a trial."

I don't disagree with what you say here, in the sense that I would not blame a prosecutor for thinking a conviction is justice in any case he or she is taking to trial. But I do think this is a narrow reading of "justice," when it comes to a prosecutor's legal and ethical duty to do it. I think accuracy is more important to justice than the prosecutor's individual judgment about the proper result. This is why I think excluding the broad class of persons under discussion is inappropriate, regardless of whether it hurts the prosecutor's case and is detrimental to the prosecutor's individual view of justice.

Michael said...

Your post argues that the conclusion “all D.A.’s are racists” is insupportable, after offering three propositions that, together, support the Harris County District Attorney’s systematic exclusion of African-American veniremen from criminal juries. A systematic exclusion of any racial group, based on its race, is racist by definition – “discrimination based on race”. Assuming, as you have in your post, that race-based discrimination may ever be appropriate, your argument has left out several propositions that are necessary to support the conclusion that district attorneys are justified in excluding African-Americans, as a class, from criminal juries. These propositions, when spoken out loud, suggest that racism is at the bottom of the exclusion, after all.

There are at least two propositions required to connect the dots from your proposition that African-Americans have historically been treated unfairly by law enforcement. While I agree with this proposition, that is not relevant to the biases or prejudices of a particular African-American venireman unless two additional propositions are also true: (1) the venireman has been treated unfairly by law enforcement, and (2) the venireman has developed a bias or prejudice because of his unfair treatment that prevents him from being able to serve fairly on a jury. With regard to the first, even assuming that all law enforcement officers treat all African-Americans unfairly (an unjustified assumption), you are no closer to establishing that a particular venireman has been treated unfairly by law enforcement because he may never have interacted with law enforcement at all. To oversimplify, stating that all A are B does not establish that all B are A. That’s not exactly the point you’re trying to make, but it’s similar. The real problem, though, is the second assumption: that an African-American, who has been treated unfairly by someone in law enforcement, is therefore prejudiced against all law enforcement personnel and is never qualified to sit in judgment of a criminal defendant. Such a prejudice would be unfounded, and illogical; are the character traits of this prejudice then assumed to belong to all African-Americans?

I agree with the previous commenters concerning the lack of a State’s right to a fair trial, but I do believe the DA is interested in winning her case (whether such a result is fair or not). But I believe that Batson, and fairness itself, allows an attorney to strike a venireman for cause based on his actual bias or prejudice, not on his membership in a class that the attorney presumes (or better, prejudges) to have a bias or prejudice against law enforcement. If you disagree, can you construct a complete argument based on race-neutral propositions to justify this policy? Or does your conclusion depend on the notion that African-Americans are incapable of separating their past experiences from the evidence presented in a criminal trial?

Mark Bennett said...

Michael, lawyers strike even those potential jurors who could serve fairly on the jury; that is what peremptory challenges are for.

Can the people who make the racist system work, and who perpetuate it, not themselves be racist? Absolutely. At some point, though, they have to accept responsibility. I think AHCL concedes that the system is racist; I think she feels some guilt about that.

A Harris County Lawyer said...

PJ, Michael, Mark, and Anon,
I'm really glad about all of your insightful comments. I mentioned on Mark's blog earlier that I don't advocate the striking of any group of people. All I was trying to illustrate in my initial posting on this topic was that the criminal justice system has created a problem within itself historically. That has led to certain groups of people feeling very disenfranchised from the System. Because of that, it creates challenges and concerns for the State during jury selection. What I was trying to subtly point out was the fact that these "challenges and concerns" were self-created. I wasn't trying to justify anything in the process. I'm sorry if it came across that way. I'm going to post on this a little more in detail later on, and maybe I'll explain my position a little better.