As the trials of the officers charged in the death of Freddie Gray begin in Baltimore this week, the nation finds itself looking at the selected jury announced today: five black women, three black men, three white women, and one white man (with three white men and a black man as the alternates). This jury will determine the "truth" of what happened that morning in Baltimore. And in our Norman Rockwell vision of the American jury, we will want to believe that in deciding questions of guilt and innocence, it should not matter which 12 citizens are randomly selected to serve on a jury. After all, a fact is a fact and like two scientists peering into the same microscope, it should not matter whether one scientist grew up in public housing and the other in an affluent suburb.
If only it were so. Criminal trials may make great plot devices that move crisply along in the hands of a skilled screenwriter, but their reality is far messier. Rarely do we have "CSI" moments where the case is neatly solved; instead, the truth is frequently obscured by witnesses' conflicting memories and gaps in the evidence. In its search for the truth, a trial often resembles a Turkish bazaar more than a "Perry Mason" episode: Witnesses offer up different versions of the same events, and as the case shifts and changes based on the latest piece of evidence, the lawyers haggle with the jury over why they should buy their version of the "truth." Not surprisingly, then, a trial often will turn on which witnesses and evidence the jurors choose to believe, and as empirical studies of jurors have taught us, that may very well turn on the jurors' life experiences and world perspectives.
The law tries to accommodate this reality in part by providing each side a certain number of peremptory strikes to remove potential jurors who they believe will not be sympathetic to their case and evidence. Given that lawyers usually know little about the potential jurors, prosecutors and defense attorneys often turn to proxies such as a potential juror's occupation, where they live, whether they have tattoos, if they wear a necklace with a cross. Sometimes the proxies border on the comic, like a lawyer's advice from the 1930s to pick jurors with "good sized mouths." But all too often, especially in death penalty cases, the proxy had been a potential juror's race as prosecutors used their peremptory strikes to remove every potential black juror so that the trial's end scene was an all-white jury condemning a black defendant to die. In part because of cases like this, the Supreme Court in 1986 barred lawyers from striking jurors based solely on race.
The Supreme Court's ruling, however, raises a question that we need to ask: If we know that life experiences and worldview affect how jurors perceive the evidence, won't a juror's race play a possible role in how they perceive the evidence? In fact, jury studies have found that race often tends to correlate with how a juror perceives a case. The presence of a single African-American male on a jury, for example, reduces the chance of a death sentence by 40 percent, while the presence of five or more white males increases the odds by 40 percent. And particularly relevant for the upcoming trials, black jurors on balance are less likely than white jurors to believe a police officer's testimony.
It is perhaps not shocking then that despite the Supreme Court's ruling, the case law since then is replete with lawyers striking jurors based on race but trying to justify their use of strikes as being "race neutral" with verbal gymnastics of an Olympian level. One prosecutor, for instance, after striking a black juror argued it was not the juror's race that led him to strike the juror, but that the juror had a hyphenated last name which the prosecutor believed showed an anti-establishment disposition.
But even if an individual's race may shape in part how they perceive the world, strong reasons exist to try to ensure that the criminal justice system does its best to keep race out of the jury selection process. First, although studies show that jurors of a particular race are more likely to see an issue one way, that doesn't mean that an individual juror will see the issue that way; indeed, I have interviewed jurors from cases where the strongest voice in the jury room for the death penalty was in fact an African-American male.
Second, the jury system works best when we ensure that the entire cross-section of the community is represented. The strength of the jury is that when it comes time to deliberate, 12 jurors will be debating and arguing the evidence from different angles. But that type of group deliberation only works if we make sure that jurors are not being excluded from jury service because of race, gender, or ethnicity. Perhaps most important, the jury system can only maintain legitimacy if the community has confidence that a jury represents all viewpoints. One reason that the riots broke out after the acquittals of the officers in the beating of Rodney King was that the 1992 trial had been moved out of the city of Los Angeles to a suburb where the jury was predominantly white, making it far easier for the public to impugn the verdict as racially tainted.
The judge in Officer William Porter's trial walked a tightrope during jury selection. Both the prosecution and defense attorneys will now be trying to convince the newly selected jury to hear their narrative of what happened that day as the "truth." And while it may be disconcerting to realize that criminal trials frequently do not produce the truth in Hollywood fashion with a clear "a-ha" moment, our best hope of providing juries the means to untangle the evidence and assess the witnesses' credibility is to put 12 citizens in the jury room who will look at the evidence from every angle and listen to each other.
This racially balanced jury is a good start.
Scott E. Sundby is a Professor of Law at the University of Miami School of Law and has interviewed jurors as part of the Capital Jury Project. He is the author of "A Life and Death Decision: A Jury Weighs the Death Penalty."