Race in the Jury Box: Affirmative Action in Jury Selection

Chapter 6

149 Chapter 6 SHORTCOMINGS OF PROCEDURALLY BASED REMEDIES Jury Representation from the Beginning to the End of the Jury Selection Process “As a result of my own trial experience and what I have learned from jury research, I believe I would be ineffective as a lawyer if I did not make both race-conscious and gender-conscious strategic decisions on behalf of criminal defendants. This includes decisions relating to jury selection.” —Abbe Smith, a criminal defense lawyer C urrent laws guiding jury selection offer no affirmative mechanisms or procedural remedies to ensure the presence of members of diverse racial and social groups in the final jury. This chapter thus attempts to demonstrate that affirmative action strategies are the only viable alternative for securing such diversity in the trial jury. By focusing our lens on all stages of the jury selection process, we hope to illustrate that the traditional, non-affirmative jury selection system handed down from the past fails to produce a heterogeneous final jury. To do this, we will show that current procedural remedies, as well as non-affirmative reforms designed to improve representative imbalances—all the way up to the jury panel stage of jury selection—neither lead to fair cross-sectional jury representation nor guarantee the diversity of the final jury on the basis of race, gender, social class, or other cognizable characteristics. As an alternative, we argue that peremptory inclusion at the voir dire stage of jury selection not only aims to create racially and socially diverse juries, but is the only viable alternative and unfailing strategy to ensure the placement of members of diverse groups in the trial jury. The purpose of this chapter, then, is twofold: (1) to provide systematic and critical analyses of jury participation and representation at each of the distinct jury selection stages, encompassing a general population, jury qualified pools, jury eligibles, jury panels, and actual trial jurors; and (2) to assess the composition and representation of the jury by examining prospective jurors’ sociodemographic backgrounds and ideological profiles, illustrating that such jury profiles and backgrounds do not reflect a balanced representation of the composition of the community population at the various and composite stages of the jury selection process. 150 RACE IN THE JURY BOX As we demonstrate in the examples that follow, trial participants in final juries not only fail to reflect a fair representation of the general population, but by and large they represent particular racial and social segments of the community population—namely, white, male, married or retired, well-educated, middleaged , middle-to-high income earners, employees in large firms, and individuals with supervisory responsibilities (Fukurai, Butler, and Krooth 1993). Even if the non-affirmative jury selection system produces a fair cross-sectional representation in final juries, it might also fail to produce a racially and socially diverse jury. This is because the proportion of racial minorities in most jurisdictions is so small that they may be procedurally and legally excluded from the final twelve-member jury. As the large proportion of criminal defendants are racial minorities, this lack of minority jurors’ participation in the final jury often fails to produce not only the chance for equitable findings, but also the perception of racial justice and racial fairness of judicial decision-making in the eyes of minority populations. All this leads to a simple conclusion: Affirmative action in jury selection is the unfailing strategy to ensure minority participation in final juries. And this is what we aim to illustrate in this chapter. We begin with a brief overview of constitutional law mandating the empanelment of juries, addressing the fair cross-section doctrine that is the focus of contemporary jury selection procedures. We then address the many ways that patent, race-neutral procedures that are used to compile jury master lists and draw names from them, actually fail to secure representative or racially diverse jury pools. By examining jury representation of various groups from a general population, as well as those brought together in qualified jury pools, jury panels, and final juries, we attempt to critically analyze the cumulative effects of screening mechanisms from the beginning to the end of the jury selection system. As we will see, such methods and their impact at different stages of jury selection are the controlling factors that shape jury composition and its fair cross-sectional representation of demographic and socioeconomic segments of the community. THE GOAL OF RANDOM SELECTION AND...