Call me a racist, but Connecticut does not do enough to assure that criminal defendants face a jury of their peers.
I’ve just finished jury selection in a murder case in Norwich. We finally picked a panel after six full days of jury selection. One hundred and fifteen men and women sat through some portion of voir dire. As near as I can tell, there was not a black-man among them. My client, charged with murder, is African-American. What am I to tell him about a jury of his peers?
One answer is that race doesn’t matter at all. We’re all Americans. We believe in equal protection of the law. Justice is color blind.
I just don’t believe it. That’s why I confess to being a racist.
If I were facing 60 years in prison and wanted a jury to hear my side of the story, I’d be uncomfortable pleading my case to a jury composed of all black souls. I feel guilty admitting this, as though I am confessing to a secret better left unconfessed. I don’t doubt for a moment that a person of color can be fair and impartial, but the prospect of an all black jury daunts me nonetheless. I would feel as if the jury weren’t fully representative, as if people who looked like me had been excluded.
In 2010, 11.1 percent of Connecticut’s population was black. (The national figure was 13.3 percent.) In New London County, where Norwich is located, 6.5 percent of the population was black in 2010.
I would therefore have expected to see at least a handful of young black men in the jury pool in Norwich. What explains their absence? There were plenty of young white men.
Jurors are drawn from lists of registered voters, licensed motor vehicle drivers, income tax payers, and unemployment compensation recipients. It may be that young black men are under-represented from these lists for socioeconomic reasons. If you don’t have the resources to own a car, why have a license? Unemployment among young black men is a huge problem, so don’t expect to see these fellows collecting unemployment. And if you are broke, you’re not filing a tax return.
And then there is the exclusion from service for those convicted of a felony. Incarceration rates for young black men are disproportionately high. Felons can’t vote, either – one study reports eight percent of African-Americans cannot vote because of felony convictions, compared to 1.8 percent of whites. So strike young black men from the list of potential jurors on that account as well.
The United States Supreme Court held long ago that "selection of a ... jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial." We’re not doing more than paying lip service to this requirement in Connecticut.
Under state law, a defendant can only succeed in proving a violation of the fair cross-section requirement if he or she can show "systemic exclusion" in the jury selection process. It is an almost impossible barrier for defendants facing a Lilly white jury to overcome. Why the complacency about de facto Jim Crow jury pools?
I’ve heard rumblings in courtrooms throughout the state about the unrepresentative character of juries. I’ve had young black men turn to me in anger during jury selection to ask where their peers were. I suspect that if more white folk were facing all black juries something would be done about this failure to produce representative jury pools.
Perhaps we need to require jury administrators in the various courthouses throughout the state to pay more attention to the lists they administer. When a person does not show up for jury duty, how often is a summons really sent to the no-show requiring them to come to the courthouse to explain their dereliction of civic duty? Do we have any data on who is not showing up to court? Is the court system letting people opt out of the system simply by ignoring a summons. Are those who feel disenfranchised permitted to stay at home? And do we really need to exclude felons from jury service?
We build communities by providing equal opportunity and requiring participation in civic life. We’ve marginalized young black men in our economy. We’re keeping them out of the jury room. We’re putting them in prison. Is all this truly mere coincidence? I don’t think I am the only racist out there.