It was a short first day in the trial of officer Jeronimo Yanez, charged in the killing of Philando Castile during a traffic stop in Falcon Heights last summer. The jury pool of about 50 people is getting the afternoon off to finish questionnaires about their potential as jurors.
There’s no question on it asking the jurors their race; that’s illegal in Minnesota and elsewhere. So reporters were left today to look at individuals and try to figure out race and ethnicity.
Various reports from the courtroom said a half dozen of the 50 people in the first jury pool appeared to be African-American; another handful appeared to be people of color. For comparison sake, the demographic makeup of Ramsey County is 70 percent of the population is white, and in Hennepin County, 75 percent of the population is white.
The makeup of the jury will be inspected closely, of course, because of allegations that race is at the heart of many shootings in which African-Americans end up dead at the hands of police.
A Huffington Post investigation in December found that in nine of 13 trials of police officers, the jury consisted of one-third or fewer of people of color. The investigation, however, did not include the Freddie Gray jury — made up of a majority of people of color — which couldn’t reach a verdict, leading to charges being dropped against all Baltimore police officers in Gray’s death.
A majority white jury is no guarantee justice can’t be done; a majority people-of-color jury is no guarantee it can be, but the need for diversity on juries has been a concern since the U.S. Supreme Court ruled in 1986 that it’s unconstitutional to exclude potential jurors on the basis of race.
Some studies since have shown why. “White mock jurors are more likely to be biased by a defendant’s race in cases in which race remains a silent background issue at trial than in cases in which the nature of the trial emphasizes race as an important issue,” Tufts University jury expert Samuel Sommers says about his research using mock juries.
In 2001, the Minnesota Supreme Court issued the results of its task force looking at updating rules to reflect the growing diversity of Minnesota. It concluded jury compensation should be raised, potential jurors should be allowed only one excuse not to serve, and jury terms shortened.
There wasn’t a lot the task force could do about one aspect of jury makeup, however: the challenges to a juror that attorneys use when selecting a jury after voir dire, the questioning and examination of the potential juror. It said attorneys can’t base it on race, which, of course, everyone already knew since the U.S. Supreme Court had said so long ago.
Here’s the problem: It’s nearly impossible to prove an attorney is doing that.
To comply with the U.S. Supreme Court guideline for striking a jury pool member from a jury, all an attorney has to do is state a non-discriminatory reason for doing so.
That earned the scorn in 2002 of William Martin and Peter Thompson — then professors at Hamline Law School — who described the means by which courts can tolerate racism in jury selection.
A prime example of the nonsense that passes as equal justice in the Minnesota court system is found in State v. Gaitan. In Gaitan, the prosecutor excused the only person of color in the jury venire. When challenged, the prosecutor stated that the juror was excused because of lack of education and difficulty understanding some terms. The trial judge who presided over the voir dire disagreed and sustained the Batson objection reinstating the juror.
The trial judge, however, allowed the prosecutor to research the issue overnight. The next morning, the prosecutor returned with two additional “race- neutral” explanations and additional elaboration for its previously rejected argument. The trial judge then changed its ruling and denied the Batson objection. The supreme court affirmed the ruling.
If the stated reasons for excluding a person of color do not work, the prosecutor now can spend the night researching the laundry list of acceptable reasons until coming up with one that does work. Certainly, most venirepersons of color would fit some acceptable category.
In that 1995 Minnesota Supreme Court case, then-Justice Alan Page was one of two justices who dissented, saying he feared for what it would mean in the future.
The decision “allows prosecutors to engage in mischief that will interfere with the achievement of the goal of identifying their genuine reasons for exercising peremptory strikes,” Page said.
These are the sorts of questions that get asked long after juries have done their work, of course, and we’re nowhere near that now with a trial that hasn’t even started yet.
For now, the main question is whether there are enough people disconnected from the publicity the case has generated since last summer who haven’t formed an opinion?