Why jury diversity matters

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?

  • AL287

    Yanez’s attorneys tried mightily to get the venue changed to a different county which I didn’t think was such a farfetched idea.

    The problem remains that postings of videos on YouTube, Facebook, Twitter, etc.border on trial by vigilante. We no longer have a controlled news cycle and plaintiffs and defendants face increasing chances of getting a biased jury.

    If that was the reasoning by the courts for keeping the trial in Hennepin County, I don’t ever want to be on the wrong side of the law.

    This is also why we no longer have balanced journalism in the U.S. Every news organization wants the bloody/violent video to increase viewership and advertising.

    Blind Justice is weeping under her blindfold.

    • // This is also why we no longer have balanced journalism i

      This doesn’t really make much sense to me. You’re saying the video of the shooting shouldn’t have been shown?

      When was this period of “balance” as a journalism ethic? And what does it look like… a cup from column A and a cup from column B?

    • MrE85

      Lots of places have “controlled news cycles.” Unfortunately, they are controlled by the government. I prefer our way, despite its faults.

    • Laurie K.

      I have to think that when deciding the issue of a change in venue the judge took into consideration how much of the “pretrial publicity” the defense complained of was actually generated by defense counsel. I recall a fair amount of posturing and attempting to portray Mr. Yanez as innocent. They also made a point of bringing up that Mr. Castile had been stopped over fifty times for traffic violations in nearly every appearance with the media.

      • Polluting the jury pool? Interesting tactic.

        • Laurie K.

          My jaded thought is that the defense used pretrial publicity in an attempt to argue the need for a change in venue but in the event that the change of venue was not granted, it gave them an opportunity to taint the victim to potential jurors. Change of venue is still an option if the judge finds that through voir dire the majority of the jury pool has firm opinions regarding guilt based on the media coverage.

    • X.A. Smith

      1. When was the news cycle controlled, and who controlled it?
      2. When did we have balanced journalism in the U.S.?
      3. How can you tell if she’s weeping if there’s a blindfold covering her eyes?
      4. Is it possible you’re imagining all of this, to some extent?

      • AL287

        #1 We did not have 24/7 news coverage until the advent of cable television. Networks signed off the air at midnight sometimes earlier. It gave consumers of the news time to process and discuss but judging from your post, you’re not old enough to remember when there wasn’t 24/7 TV.

        2. Because of #1 journalism was much more news than sensationalism as it is now with everyone and their uncle “putting their oar in.” If we wanted sensationalism, we went to the movies.

        3.Lady Justice is an allegorical personification of the moral force in judicial systems.[1][2] Her attributes are a blindfold, a balance, and a sword. She often appears as a pair with Prudentia, who holds a mirror and a snake. Lady Justice is also known as Iustitia or Justitia after Latin: Iustitia,[3] the Roman goddess of Justice, who is equivalent to the Greek goddess Themis and Dike.—-Wikipedia

        The refusal of the Senate to give Merrick Garland at least a hearing shows how far afield we’ve wandered from the purpose of the judicial branch of the government.

        4. I’ve taken the MMPI and the interpretation of it states clearly that I am not suffering from any mental impairment. In other words, I’m not crazy.

        • X.A. Smith

          You didn’t really directly address any of my questions.

    • Jack

      The trial is actually in Ramsey County. That’s where the shooting took place.

      It would be interesting to see if any residents of Falcon Heights or St. Anthony were summoned for jury duty in this case. (St. Anthony is split between Hennepin and Ramsey County.)

  • MrE85

    I wish that I could feel confident that this trial could result in a just and true verdict, but I just can’t. My faith in our system has been shaken, especially in cases such as this one. I would love to be proven wrong on this one.

    • AL287

      Perhaps if justice were truly “blind” as in owing no allegiance except to what is in the written law and the evidence presented by both sides you would feel differently.

      Unfortunately as the passing years have shown, there is one standard of justice for the wealthy and another standard of justice for the poor, the overwhelming majority of whom are persons of color.

      It will be interesting to see if Yanez’s “color” (Latino) will make any difference in his trial. It shouldn’t but there we are.

      No matter how well meaning, the release of an earlier recording of a different traffic stop by Yanez and his fellow officers concern is prejudicial and could mean the difference between a conviction and an acquittal.


  • Jack Ungerleider

    Maybe the answer in a case like this is not to try and find people who don’t have an opinion on the case, but to find people who can “compartmentalize”. Who are willing to follow the rules and judge this by the evidence presented in the courtroom. Ask yourself this question: can justice be served when the jury is made up of people who haven’t followed current events since last July?

    • Laurie K.

      Why not? I am just curious why you think being up on current events somehow makes you uniquely qualified to be a juror.

      • Jack Ungerleider

        My point was not to say those people are uniquely qualified. But in a case like this, where there is context surrounding the events, should knowledge of that context disqualify a person? The way the process is often portrayed the attorneys on both sides would prefer to disqualify anyone who knows anything about the case or other events that may have influenced the police officer’s thinking at the time of the incident.

        • Laurie K.

          That’s the $100 question though – most, if not all, of these jurors will have some knowledge (or “context”) of the events. That’s not an issue. What is an issue is whether there is something about the knowledge that they have that will make it improbable that they will be fair and biased and consider ONLY the evidence presented – not anything they have learned through pretrial publicity.

  • Al

    “When challenged, the prosecutor stated that the juror was excused because of lack of education and difficulty understanding some terms.”

    We use similar euphemisms when describing race in a lot of areas. “Lack of education,” “at risk,” “low income.” Use these terms, and 9 times out of 10, the speaker intends for you to think of people of color.

    • Page’s dissent carried the transcript of the initial exchange:

      THE COURT: Ms. Keena, I need a race neutral reason.

      MS KEENA: Her education level, her ninth grade education level. She was having a very difficult time understanding a lot of the terms that we were using.

      THE COURT: I guess I didn’t really get a reading that she was having trouble with the language.

      MS KEENA: Well, I did. I mean the difference between consume and drinking.

      MR. MAUNU: Your Honor, I believe

      MS KEENA: Do I have to go through an entire trial explaining? I mean we won’t know if she understands a term or not?

      MR. MAUNU: It was my observation that she was responsive to the questions and gave the appropriate answers.

      MS KEENA: After explanation, and after rephrasing the questions.

      MR. MAUNU: She has lived in this country for several years and she is employed and she speaks English.

      THE COURT: The objections of the defendant are sustained.

      • Not knowing the exact particulars of the case, and why any such distinction matters, IMHO “drinking” is simply one type of “consuming”. Lawyers love to split hairs, don’t they? :/

  • Gary F

    Would they allow anyone with a valid permit to carry on the jury? Should they?

    • KTN

      I had jury duty a while back, we were being interviewed for a felony gun case. We were asked about being permitted. Not sure how much weight it carried, but both lawyers wanted to know.

      • Gary F

        If race matters, then other civil rights like the 2nd Amendment matter. He had a valid permit to carry and the jury should reflect that.

        • There’s nothing in case law that supports that.

        • KTN

          I don’t know in my case if anyone in the pool was rejected for possessing a permit or not – hard to say. I was not selected because my old man was a police officer (at least I think that’s why).

  • wjc

    For more on the jury selection issue, try the linked episode of the “More Perfect” podcast. Fascinating stuff including information on seminars that have been offered on how to “legally” get around the race rules.


  • Zachary

    What’s the old joke – ‘The only people on Juries are the ones who weren’t smart enough to get out of Jury Duty’?

    Snark aside – I really don’t envy the people ultimately selected for this trial. I think it’s got a high probability of lasting a while, and/or sequestering. Jury duty takes its toll on people’s lives – and especially one of this high profile.

    I truly hope/pray/trust that an impartial jury – who is able to do the job required – can be found.

    • Kassie

      I would love to picked for jury duty and would love this sort of trial. And I’m a perfect fit. No family, my job would continue to pay my wage so I wouldn’t have a financial hardship, and I can be impartial.

      • Zachary

        Right, but how many of the 50 in the pool also have those?

  • kennedy

    The legal duty of a lawyer is to represent the interest of their client. When selecting a jury, I would expect that to mean a lawyer should try to get a jury most sympathetic to their side of the case. Lawyers use juror questioning and past experience (including personal bias) to predict the most and least sympathetic jurors. This applies to prosecuting and defending attorneys. If both do their job well, jurors with strong personal bias regarding the case would be excluded. Theoretically those that remain would have the least bias and be best able to judge the case based on it’s merits.

    I do agree that diversity in a pool of people makes the group more able to understand events, situations and context. However, it seems that adding requirements that protect or exclude jurors based on demographics would affect the ability of attorneys to do their jobs.

  • D.Robot

    Wait a minute…. If jurors can’t be asked what their race is, why did I have to fill out a demographic sheet when I served on a jury in MN in 2015? I actually left the race section blank and was pulled aside and told I had to fill it in. I didn’t fight it, I just went along with it, but surely someone was interested in my race. I assumed jury candidates were chosen randomly, but proportional to the city demographic…because that’s kind of how it looked to me.