As the United States Balkanizes into hostile political and racial demographics, one obvious victim ahead is our jury system. I have no clue as to how the jury system will be modified, but I do not see how it can possibly survive in its current, flawed form, however important it is to democracy.
Our jury system will likely collapse once Americans believe that we cannot rely on jurors to render fair judgments based exclusively on trial evidence and bench instructions — both carefully restricted — rather than on political ideology, race, or other pre-existing allegiances.
What a recent Supreme Court decision reveals
In Foster v. Chapman, the justices found that a Georgia prosecutor unlawfully used voir dire challenges to keep African-Americans from a jury in order to enhance the chance of sending an African-American defendant to prison or the gurney.
This case might be the first in which a death row inmate’s attorneys were able to get access to the prosecutors’ incriminatory notes, but it could hardly be the first case in which attorneys on one side or both used challenges to alter the racial make-up of the jury, or to eliminate jurors with unhelpful political or religious views.
The Supreme Court showed a rare single-mindedness when they issued their 7-1 Foster v. Chatman decision on May 23, 2016.
What principle brought the justices together?
It was their unanimous insistence that potential jurors not be kept from serving because of race. “The “Constitution forbids striking even a single prospective juror for a discriminatory purpose” (Snyder v. Louisiana, 2008).
The lone dissenter, Justice Thomas, apparently agrees with this race-blind principle, as his dissent was only on what some of us non-lawyers wrongly dismiss as a mere technicality.
The elephant in the courtroom
The prosecutors who rigged the jury against Foster were properly criticized by the Supreme Court, of course, but their exclusion of jurors by race does not necessarily mean that the prosecutors were racists.
My assumption is that jury selection is driven by a desire to win the case, not by personal biases.
Had the prosecutors been prosecuting a white defendant, they might have sought to seat as few white jurors as possible. Had Foster’s prosecutors been African-Americans themselves, they too might have sought to challenge as many African-Americans as possible.
The fault, dear juror, lies in ourselves
A courtroom attorney cannot indulge personal racial prejudice nearly as easily as a juror can. And the ease with which a juror can indulge in prejudice, or decide a case so as to resist perceived prejudice, is the elephant in the courtroom.
In other words, the problem in criminal trials probably lies far less in the faults of attorneys than in the faults of jurors (and their quirky mix of flawed human nature, personal experience, political stance, favorite media, culture and subculture).
Are some cases won or lost in voir dire?
Probably. The marketing material for The Texas Criminal Defense Lawyers Association’s voir dire seminar next September says that “Jury trials are won and lost in voir dire. Voir dire is not just your only chance to eliminate unfavorable jurors legally, but also your best chance to persuade the jury that your story of the case is the truth.”
One reason a single juror matters: nullification
Curiously enough, a few days before the Foster decision was released, Allison Jackson, a Texas defense attorney, posted a blog encouraging jury nullification. I imagine that the judges and prosecutors in her Fort Bend County, Texas, were highly annoyed by this.
To one Texan annoyed at getting a jury summons, she suggests ” . . . take your summons in your hot little hand and ride the Metro for free down to the courthouse complex. Go to the Jury Assembly Plaza and tell everyone who will listen about jury nullification.”
Allison Jackson does important and doubtless inadequately compensated work (defending indigents), and she sounds charming, smart, quirky and imaginative, a good conversational partner. She describes herself as “. . . a book snob, a wine equal-opportunist, a good cook and a bad singer. She collects teapots, witty intellectuals, and mugshots of famous people. Before she was a lawyer, she was a cake decorator, aspiring literary critic, and superlative diner waitress. She has practiced law in Texas and Micronesia.”
Charming, yes, but not convincing in her defense of nullification. She gives examples of nullification historically used to prevent injustices (e.g. against the recovery of fugitive slaves) or to prevent pointless convictions (e.g. during prohibition). But she does not mention the problem.
The dark side to nullification
There is a dark side to jury nullification, of course, although I understand why a defense attorney might not want to be reminded. At a minor level, one juror can subvert justice (and I do not mean subvert a bad law) by preventing the conviction of a someone guilty of committing a serious crime.
For example, imagine a Ku Klux Klan Grand Dragon who gets through voir dire and ignores solid evidence and judicial instruction, maybe even a credible confession, in order to refuse to convict, let’s say, a white gunman who murders several members of a Charlestown church — just because the gunman is white and the victims were not.
Now imagine nullification writ large
A far bigger problem will arise when a movement influences enough jurors to effectively protect an entire class of criminals.
In the 1990s, some right-wing militias in the west called for gun-rights supporters to never convict anyone of any gun-involved crime (even if obviously guilty) as a way to resist gun regulation. I imagine militias might rethink their position these days if the defendant is a swarthy Muslim who shot up a school or restaurant, but you never know.
About the same time, an African-American group in Washington, D.C., called on African-Americans to use jury nullification to never convict any black male defendant, because the criminal justice system treats African-Americans grossly unfairly. In this case, nullification (like cultural pressure against what is derided as snitching) seems a way for a community to protect criminals at the expense of the community itself.
How it worked in the South
I hardy need to point out that in the Jim Crow South, white juries in effect used jury nullification to protect whites who had lynched African-Americans. That is an example of an entire class of criminals being protected.
A grim future?
The Black Lives Matter movement and the Blue Lives Matter backlash suggest a future in which guilty verdicts will be increasingly rare. We can all imagine a few big-headline acquittals which will increase some people’s sense that the system has failed. Imagine the grim consequences of that loss of confidence.
Once the police and citizenry in a locality start attacking each other because of a loss of faith in the justice system, we will be trapped in our own nightmare version of feral cities in Mexico and Brazil and elsewhere.
So much for the Magna Carta
Trial by one’s peers seems, like habeas corpus, on its way out, not (like habeas corpus) by presidential overreach, but because of intrinsic flaws exacerbated by current events. If only the Supreme Court could control the excesses and errors of jurors, not just the excesses and errors of attorneys.
August 16, 2018 update
As I write, a Virginia jury is deliberating the fraud and tax case against Paul Manafort. My worry is that one stubborn, Trump-drunk juror will decide to strike a blow, by refusing to convict, against the FBI, Robert Mueller, the so-called “deep state,” liberals, etc. That juror might imagine becoming a hero to his or her own hero, Donald Trump, and to right-wing media, and that juror might be right.
If the Manafort trial ends without a conviction because of jury nullification, and the nation understands that, how could there ever be a conviction of any corrupt, criminal, or treasonous associate of President Trump? Nullification would be advocated by some as a patriotic and heroic act of defiance (and oh how the alt-right romanticizes defiance!).
An ordinary juror could issue a political pardon far more easily than a president.
Given that perhaps 30% of Americans are low-information True Believers (in Trump, FoxTV, Russian troll emails, Infowars, etc.), any jury of 12 citizens would likely include at least one True Believer who would refuse to vote for conviction, no matter how obvious the evidence.
I hope that the Manafort jurors do the right thing, basing their decision on the evidence and court instructions. The United States cannot stand a systemic political sabotage the judicial system. Our judicial system needs reform, not paralysis.