No, Black jurors aren’t ‘biased’ when it comes to shootings of Black people
Jury service cannot only be for the white, the lucky, and the obstinately stoic in the face of racial injustice. The jury seated in the Ahmaud Arbery trial – a Black man who was shot and killed by three white men in Glynn county, Georgia – makes a mockery of the need for a randomly selected jury. Of the 12 person jury, 11 are white and just one is Black, in a county where more than 25% of the residents are Black.
That Black jurors were dismissed because of the way they answered a series of questions about their life experiences and perceptions of racism seems particularly ironic given that only one question was asked of Ahmaud Arbery (“What were you doing back there?”) before he was pursued by three men with guns.
Initially, 12 Black jurors out of 48 were deemed to be qualified by Judge Timothy Walmsley. To live in Glynn county and not be aware of the killing of Ahmaud Arbery was an extremely unlikely occurrence and almost all jurors had seen the cell phone video taken by Roddie Bryan. The judge questioned them about the media they consumed and found them able to “set it aside” (the preferred locution of the court) and be open to verdicts of guilty and not guilty.
In the next stage of jury selection, the defense attorneys proceeded to dismiss 11 of the 12 Black jurors through the use of peremptory strikes, the limited number of dismissals given to each side to use against jurors whom they perceive to be unfavorable. While attorneys have great latitude in their use of strikes, they cannot base strikes on the race or gender of the juror, as detailed by the supreme court in Batson v Kentucky (1986).
In the Arbery trial, the defense counsel stated that they had used peremptory strikes against 11 Black jurors because those jurors had a problematically “fixed view” of the case. Black jurors, under oath during voir dire, are caught in a difficult position – they are asked to speak candidly about their thoughts about the crime, but then dismissed for not meeting the hidden standards for peremptory strikes the court has set for them.
Juror 253, a Black woman, supposedly expressed this fixed view with statements such as, “no one needs to have their life taken,” and “I believe it was wrong … There should be another solution instead of ‘Bam!’”
While these statements suggest that she had strong opinions based on what she knew about the killing of Ahmaud Arbery, it does not represent the totality of her capacity for legal judgment. In order to avoid dismissing jurors, particularly Black jurors who have disproportionately had negative interactions with the police and experienced racial discrimination first-hand, it is necessary for the court to take even more care in separating out moral and legal judgment.
To ask the juror to lead the judge or the lawyers in making this distinction through their carefully crafted answers is to get the process backward. Judges must convey their confidence that such a separation is possible and what exactly it entails, including how the life experiences and conscience of a juror can be a legitimate part of the deliberation process. Attorneys must then not be allowed to undermine Black jurors’ right to serve by implying that their intimate acquaintance with the scourge of racial violence in America impedes their ability to be fair to the defendants.
After the prosecution brought up their concerns about the improper dismissal of Black jurors, the judge acknowledged, “There appears to be potential discrimination in the panel” but that he was bound by the precedent set in the state to allow peremptory strikes against any juror if attorneys give a plausible race-neutral reason. Other states have attempted to address this longstanding problem of seemingly race-neutral reasons given for dismissing Black jurors leading to all white or nearly all white juries.
Support for policies encouraging the separation of moral and legal judgment should also come from social movements, including Black Lives Matter groups and social media. In a post on Twitter, Lee Merritt, the attorney for the Arbery family, wrote, “Register to Vote. Show up for jury duty. Remember this phrase: ‘I can be fair.’”
Kevin Gough, defense attorney for Roddie Bryan, one of the men on trial, accused Merritt of tampering with the jury process by implying that jurors
should say that they could be fair regardless of what they believed. This obscures the deeper point. What Merritt perhaps should have tweeted is, “Remember you CAN really be fair,” to communicate to potential jurors that they can, in fact, be honest about racism they have experienced and seen, and honest about their ability to uphold the standards of a fair trial in this particular case.
This requires that jurors have reflected on the elements of the adversarial trial that they think are worth preserving even if they might want dramatic changes to the way the criminal system both over-punishes certain crimes (where Black people are the defendants) and under-punishes others (where Black people are the victims).
In pre-trial motions, the defense lost their request that the jury not see a photo of a Confederate flag vanity plate on Travis McMichael’s truck. The defense feared that the image would induce the jury to view him as racist and likely guilty of a racially motivated murder. While all attorneys must advocate for their client, there must also be a way to evaluate the possible racial motivations for this crime.
Even racists deserve a fair trial, but in the interest of avoiding one type of injustice (a guilty verdict based on prejudice), the court cannot enable another: a trial where the racial context for the crime is not adequately considered.
By removing Black jurors who were “biased” toward seeing patterns of racial violence in America, the court is removing bias from a picture – the crime in question – whose very essence may in fact be the most horrible extremes of distorting bias.
Sonali Chakravarti is a professor of government at Wesleyan University. She works on questions of emotions, the law and democratic institutions. She is the author of Sing the Rage: Listening to Anger after Mass Violence