Diving into the Jury Pool

January 15, 2010 10:44 AM

On September 20, the U.S. Supreme Court will hear argument from a defendant convicted in 1993 by an all white jury in Grand Rapids, Michigan. The issue is whether the county's system of jury selection violated the defendant's Sixth Amendment right to be tried by a jury drawn from a fair cross section of the community. At the time of the 1990 census, African Americans composed 7.8% of eligible jurors in Kent County and 18.1% of eligible jurors in Grand Rapids. The defendant asserts, however, that they were routinely excused. All briefs can be reviewed here. Unless the Court chooses to decide the case on purely procedural grounds, it could set precedent with a significant impact on daily local jury selection.
posted by bearwife (78 comments total)

Without reading the article, I'm assuming the defendant is African American? Or as I prefer to say, American?
posted by blue_beetle at 10:53 AM on January 15, 2010 [1 favorite]

I have no opinion on the merits of the "sytematic exclusion" claim, but I will note that if you have a bag full of many, many marbles, and 7.8% of them are aggies, and you draw twelve marbles completely from the bag completely at random, you stand well over a one in three chance of drawing no aggies at all.
posted by Flunkie at 10:59 AM on January 15, 2010 [8 favorites]

Any defendant, regardless of race, is entitled to a jury drawn from a jury pool representative of the community from which the case is tried, to paraphrase the respondent's (defendant's) brief.
posted by bearwife at 11:04 AM on January 15, 2010

I'm really torn by this whole issue... I understand and sympathize with America's blatant and inarguable history of racism and prejudice, especially in court cases, but the idea that twelve people can't be your "peers" unless one of them is the same skin color as you seems like a terrible slippery slope. Like Flunkie said, there aren't unfathomable odds that a jury pool would be entirely the high-majority race.

Furthermore, the case says "whether a man's murder conviction should have been thrown out because there were too few African-Americans in a county's jury pool." That flat-out implies that blacks on the jury would increase the liklihood of acquittal. Can I support the inverse of a flat-out belief that an all-white jury would convict? I don't know if I can... or at the very least want to.

Assuming there were blacks in the voir dire, then the problem here seems to be with the preemptory challenge system. Lawyers in America don't have to explain their challenges. I was struck from a jury pool once merely by saying I went to college. I'm not a lawyer so I don't really know the historical argument for why this is a necessary policy in American court cases.
posted by XQUZYPHYR at 11:04 AM on January 15, 2010 [3 favorites]

Also, is it right to assume that a jury made up of all X jurors can't be impartial?

I'm kind of playing devil's advocate here, but that's the flip side of these arguments - the implication that a jury can't be impartial/render a fair verdict unless the makeup fits a certain diversity profile reflecting that of the defendant. That can be seen as discriminatory in itself.
posted by cmgonzalez at 11:06 AM on January 15, 2010

I will note that if you have a bag full of many, many marbles, and 7.8% of them are aggies, and you draw twelve marbles completely from the bag completely at random, you stand well over a one in three chance of drawing no aggies at all.

Right. But if we proceed by first picking 50 marbles including, say, 4* aggies, from which we will then pick 12 together that we can see and agree upon, and the first thing I do is take all the aggies out, you might be led to conclude that a random sample of the bag is not what I had in mind.

* - Or 20, depending on how one marbles get put in the bag in a Grand Rapids courtroom.
posted by el_lupino at 11:09 AM on January 15, 2010 [8 favorites]

Grrr. "how marbles get put in the bag"
posted by el_lupino at 11:11 AM on January 15, 2010

But we're not talking about coin flips or drawing marbles or anything resembling pure chance. The allegation is that there were in fact black jurors in the pool but they were routinely diverted or dismissed.
posted by Rhomboid at 11:13 AM on January 15, 2010 [1 favorite]

GRRRRRRRRR 10 marbles. That's it. I'm going back to bed.
posted by el_lupino at 11:17 AM on January 15, 2010 [1 favorite]

el_lupino hits on a major flaw in the "randomly uniform" argument. However, it's also worth noting that randomness is not the defining criterion of a "fair jury". The jury is supposed to be fair and impartial... if a genuinely random selection process chose twelve Klansmen for a black defendant, that would not be an acceptable jury even though it was formed in an unbiased way.

That would seem to support the argument that we should make reasonable efforts to select a racially representative jury, whenever it's even plausible that the defendants' and the jurors' races might influence the jury's decisions.

(IANAL, but this is my understanding of the concept. Correct me if I'm wrong.)
posted by Riki tiki at 11:19 AM on January 15, 2010 [2 favorites]

Are jurors selected as representatives of class demographics? Education levels? Interest in manga? Seems like you could endlessly select different criteria by which to identify people in unique demographic groups.
posted by billysumday at 11:19 AM on January 15, 2010

But if we proceed by first picking 50 marbles including, say, 4* aggies, from which we will then pick 12 together that we can see and agree upon, and the first thing I do is take all the aggies out, you might be led to conclude that a random sample of the bag is not what I had in mind.

That's why I said that I had no opinion on the systematic exclusion claim, el_lupino. If there was systematic exclusion of black potential jurors, that seems unfair (though I don't know whether or not it's also illegal). But I don't know whether that happened or not.

From the article, it seems like the allegation is not that the prosecutor did that, but that the judge did that: I'm not sure if I'm understanding it correctly, but it says of the sixty-to-one hundred person pool, three people were African-American, and none of those three made it to the "final 37 considered for his trial's panel". I'm guessing that "the final 37 considered" were those that the prosecutor and defense attorney selected twelve from, and the sixty-to-one hundred were those that the judge either accepted or dismissed based on things like "I know one of the witnesses" or "I have to take care of my aunt". Is that correct?

In any case, given eighty people, there's a pretty good chance (about 15%) that if you select 37 of them at random, you won't get select of a certain three.
posted by Flunkie at 11:22 AM on January 15, 2010

The allegation is that there were in fact black jurors in the pool but they were routinely diverted or dismissed.

What needs to be shown is that they were routinely diverted or dismissed without a legitimate reason. Just to speculate, it could be that in many cases the black potential jurors lived in the same neighborhood as the defendant or that they themselves had been convicted of crimes.

That said, it's probably just racism, but the defendant is fighting a seriously uphill battle. McCleskey v. Kemp is going to be a hard precedent to overcome. On the other hand, McCleskey was an awful, awful case and maybe the Court is ready to overturn it. Personally, I doubt it.
posted by jedicus at 11:23 AM on January 15, 2010

From the first link: Of the 60–100 potential jurors that comprised Smith’s panel, three were African-American. The fourteen jurors eventually selected were all Caucasian.

If there had been routine excusal of, say, twenty or thirty black jurors, I would be upset too. But to say three jurors were "routinely excused" sounds odd. The jury pool, however, certainly doesn't seem representative, but isn't that selected at random? Is this case going to suggest we no longer randomly select for jury duty?
posted by scrowdid at 11:23 AM on January 15, 2010 [1 favorite]

In any case, given eighty people, there's a pretty good chance (about 15%) that if you select 37 of them at random, you won't get select of a certain three.

I meant, "... you won't get any of a certain three."
posted by Flunkie at 11:24 AM on January 15, 2010

Flunkie> I have no opinion on the merits of the "sytematic exclusion" claim, but I will note that if you have a bag full of many, many marbles, and 7.8% of them are aggies, and you draw twelve marbles completely from the bag completely at random, you stand well over a one in three chance of drawing no aggies at all.

Except that African-Americans were 18.1% of the eligible jurors, so there's only a 9% chance of having a jury of 12 with no African-Americans.
posted by UrineSoakedRube at 11:31 AM on January 15, 2010 [1 favorite]

Oops -- I just noted the number for Kent County. Never mind.
posted by UrineSoakedRube at 11:31 AM on January 15, 2010

Can you imagine the uproar if a white convict complained that his trial wasn't fair because all the jurors were black? Not saying that it would be an entirely parallel case (let me tell you I've yet to hear a white person make a convincing case for being victimised by systemic or institutionalized racism, though I've run into way too many bigots who really thought that way) but claiming a white jury is automatically a racist one is a pretty offensive claim.
posted by orange swan at 11:33 AM on January 15, 2010

This is one where I can see both sides of the argument; one the one hand, you have the defendant asserting, essentially, that white people aren't his peers. On the other hand, you have the fact that the justice system in this country is racist to the point of insanity; the justice system that white people see, and the justice system that black people see, are often very different things. Many, many white people I've talked to about this, for instance, just categorically refuse to believe that police are willing to lie, some on a routine basis, to 'get' someone that they believe is guilty. "And then the defendant dropped the drugs on the ground" is code for "we searched this person illegally", and I'm not sure that white people really get this.

So, while I hate, hate the idea that whites and blacks aren't peers, I'm not sure that, for the purposes of a jury, they really are.

I don't know how this plays out with regard to other minorities. The abuses I'm aware of have usually involved black defendants, not Hispanics or Asians or what have you. I don't know if this because the system isn't as stacked against them, or because I just haven't read as much about their issues.

Remember that big kerfluffle awhile back about a local mayor who got his house busted into by a SWAT team, and all his dogs were shot dead? That shit happens every day to black people, and you don't see the media talking about it much.
posted by Malor at 11:38 AM on January 15, 2010 [8 favorites]

Can you imagine the uproar if a white convict complained that his trial wasn't fair because all the jurors were black?

Has that ever happened? When the exclusion of whites from a jury because they are white becomes a topic, I'll be happy to discuss it, but too often complex issues of race are diverted into foundering backwards because of an overeliance on an imagined "what if" that simplies race to a looking glass.
posted by Astro Zombie at 11:47 AM on January 15, 2010 [9 favorites]

foundering backwaters, rather, although I'm not convinced that makes any more sense.
posted by Astro Zombie at 11:48 AM on January 15, 2010

I have no opinion on the merits of the "sytematic exclusion" claim, but I will note that if you have a bag full of many, many marbles, and 7.8% of them are aggies, and you draw twelve marbles completely from the bag completely at random, you stand well over a one in three chance of drawing no aggies at all.

But how about if Aggies are 18.1%, rather than 7.8%. Whats the chance of drawing no aggies at all?
posted by hal_c_on at 11:51 AM on January 15, 2010 [1 favorite]

Also, is it right to assume that a jury made up of all X jurors can't be impartial?

Is the concern being raised that the jury wasn't impartial because of their race? Or is the concern that they aren't his peers, and therefore less likely to understand his motivations?
posted by zarq at 11:54 AM on January 15, 2010

From inside:

Before trial, however, Smith challenged the system of jury selection, claiming systematic exclusion of African American jurors in violation of his Sixth Amendment right to an impartial jury. See id. at 330. A 1990 Census showed that African-Americans comprised 7.8% and 18.1% of eligible jurors in Kent County and Grand Rapids respectively. See id. It also showed that Grand Rapids’ population comprised of 85% of the African-American population of Kent County. See id. Of the 60–100 potential jurors that comprised Smith’s panel, three were African-American. See id. The fourteen jurors eventually selected were all Caucasian.

So they had 60-100 potential jurors...and only 3 of them were African American, although 7.8% of the county was African American? That doesn't sound right.

This point was brought up BEFORE the trial...and the judge didn't really do anything to fix the situation...so yeah, of course this is a valid point!
posted by hal_c_on at 11:56 AM on January 15, 2010 [1 favorite]

So they had 60-100 potential jurors...and only 3 of them were African American, although 7.8% of the county was African American? That doesn't sound right.

Could be any number of factors, depending on the how many jurors were in other pools, on trial in other cases, called in sick, postponed their appearances, etc.
posted by roomthreeseventeen at 12:04 PM on January 15, 2010

So they had 60-100 potential jurors...and only 3 of them were African American, although 7.8% of the county was African American? That doesn't sound right.

Why not? Assuming "60 to 100" means "60", there's about a 30% chance of getting three or less.

And if it means 100, there's still a 4% chance. This admittedly sounds small, especially compared to "30%", but (1) it's assuming the highest number of "60 to 100", and (2) it's not really all that small. One out of 25 trials will be this way, if the pool is entirely at random. I assume that "25 trials" is not really a big number of trials for an entire county with a population of almost six hundred thousand people.

Taking the average, 80, it's about a 12% chance. More than one out of every ten trials.
posted by Flunkie at 12:10 PM on January 15, 2010

But how about if Aggies are 18.1%, rather than 7.8%. Whats the chance of drawing no aggies at all?

Then it's a little over nine percent, which is still not all that small a number, though it may sound that way.

More importantly, 18.1% is not the appropriate percentage to calculate based upon. It's a totally irrelevant number; the percentage of potential jurors who are African-American is 7.8%. That there is some other group of people, other than "potential jurors", of whom 18.1% are African-American is not relevant.
posted by Flunkie at 12:13 PM on January 15, 2010 [1 favorite]

Let me make sure I understand the argument:

The argument isn't so much a matter of "I, the defendant, think that race matters", as it is "I, the defendant, noticed that the prosecution ruled out an entire demographic from the jury pool, which to me demonstrates that he may think race matters, and that has given me pause." Right?
posted by EmpressCallipygos at 12:20 PM on January 15, 2010

No, EmpressCallipygos, I don't think that's right. I believe that there were no African-Americans among the people who the prosecutor and the defense attorney were allowed to choose from.

I could be wrong about this, but that's the way I read it.
posted by Flunkie at 12:22 PM on January 15, 2010

I was an alternate on a murder trial last spring. Jury selection took nearly four days. Since I was the last potential juror called, I had a lot of time to try to figure out why some people were dismissed and not others.

For some, it was easy - insufficiently fluent in English, the guy who was in private practice as a criminal defense lawyer (and had been both a prosecutor and a public defender earlier in his career), the guy who owned his own business and was so twitchy and annoying about having to serve that the judge dismissed him to save us all from his endless BlackBerry-checking, I'm sure - but for others, it was impossible to know. The lawyer guy was obviously dismissed for cause, as were the folks who didn't speak great English, and the guy who said he'd be skeeved out because he lived a block from the murder site (the murder occurred more than a decade ago).

As the attorneys used their peremptory challenges, I began to realize that, at least for some of them, they were dismissing people not because that person was somehow lacking, but because they were hoping for something "better" when the next potential juror got called. Each side was trying to build a team, one that would serve their side better than the other side.

The defendant was Latino. As far as I know, none of my fellow jurors were; I don't remember if or how many of the jurors called for voir dire (and then dismissed) might have been. He was found guilty, and the case is being appealed, but not on these grounds.
posted by rtha at 12:23 PM on January 15, 2010

rhta, you pointed out something that some others have overlooked; lawyers don't need to say *why* they're using preemptory challenges. Plenty of research has been done on what type of person tends to be sympathetic to a certain side of a case, or type of defendant, or whatever. The idea that we're entitled to a jury of our "peers" is really just shorthand; lawyers cherry-pick jurors on a daily basis.
posted by craven_morhead at 12:36 PM on January 15, 2010 [1 favorite]

Realistically, if the trial is for murder, the jurors should be 1/2 murderers and 1/2 innocent.
posted by blue_beetle at 12:37 PM on January 15, 2010 [6 favorites]

Supposing they did find in the defendant's favor here, I wonder what it would do to voir dire and the whole jury selection process.

What would they do if they have 60 jury candidates, 5 of them are black, and for some reason none of those five are suitable? Should the court go out and just get more (randomly selected) jurors, or would it need to go and specifically get more black people to replace the black candidates that were excluded? I'm not sure how well that would work.
posted by Kadin2048 at 12:38 PM on January 15, 2010

but the idea that twelve people can't be your "peers" unless one of them is the same skin color as you seems like a terrible slippery slope.

I don't think anyone is arguing they're not his "peers" just that they're less likely to be unbiased.

---

Anyway, does anyone here seriously think Robeters/Thomas/Scalia/Alito/Kennedy will have a problem with Jury selection? These are the guys who voted against Ledbetter

So while this is an interesting case, I'm sure the SCOTUS will find for the state/county/whatever.
posted by delmoi at 12:51 PM on January 15, 2010

I did jury duty about three months ago and got called to the voir dire for an attempted murder trial. The defendant was a young black man in his early 20s, judge was a black man, both the prosecutor and the defense were white women. I'm a white guy in my early 30s. The jury pool of about 100 was mostly African American since it's Baltimore (about 65/35 split between black and white).

The judge asked everyone in the pool whether they had 1. Ever been the victim of a crime and 2. If they had immediate family members in law enforcement or correction. The people that answered affirmatively had to answer a few questions from the judge, then about 25 of them were excused because their brother was a cop or they had recently been robbed.

Then the judge asked us to come stand in front of the jury box when our number was called. No questions were asked, you just walked up, stood in front of an empty seat and the clerk asked "Acceptable to the defense? Acceptable to the prosecution?" and the attorneys would say yea or nay. To make a long story short, I was the first number called, got rejected by the defense, of the twenty people called after me, all four white guys were rejected and on the fifth the prosecutor asked to approach. Defense reversed and accepted the last white guy they had rejected and the chose the rest of the jury. I don't recall exactly, but I think the final count was one sketchy looking white guy in his 50s, one early 40s black guy, one black guy in his 20s, with the rest of the twelve plus two alternates black women between 40 and 60ish.

Without knowing the criteria, it looked like the defense ideally wanted middle aged black women and absolutely did not want white men. Younger black men were acceptable, but not ideal, but the prosecution absolutely did not want young black men, but didn't seem to have any other strict criteria.
posted by electroboy at 12:54 PM on January 15, 2010 [2 favorites]

I've yet to hear a white person make a convincing case for being victimised by systemic or institutionalized racism

So you disagree with Regents of the University of California v. Bakke? On what grounds? You really don't think saying "X number of seats are not for white people, period" is institutionalized racism? And anyone who disagrees with you is a "bigot"?

Actually, I have a better idea: let's not use a discussion of an important issue to throw out insults. Voir dire is an opaque and potentially unjust system. I think its discussion merits better than that.

In terms of the 18.1 vs 7.8 discussion, murder is a felony in every state I know. In Michigan, felonies are tried in county-level Circuit Courts, so the jury pool would have been drawn from the entirety of Kent County. 7.8% is the correct number. Assuming that the pool was randomly uniform, we can expect 7.8% of the jury pool to have been black as well. A naive preliminary estimate at probability would be (0.922)^12, which gives us a 37.8% chance of an all-white jury. Now, jury pools are small enough that each selection would significantly but minorly change the pool of remaining jurors to be selected, so each white juror selected would in fact increase the likelihood that the next juror selected would be black; so the overall percentage is slightly lower than 37.8%. However, that is counteracted by socioeconomic distribution: black potential jurors are slightly more likely to be wage-workers than white potential jurors, and therefore be put under harsher economic stress by jury service and be excused at a slightly higher rate. This is consistent with the linked article: "He argued that Kent County's prospective jurors in 1993 were routinely excused because of child care, a lack of transportation or a conflict with work." My intuition is that these minor adjustments nullify each other, but I could of course be wrong.

I guess based on the fact that they were excused for cause based on their own concerns (as opposed to the prosecutor's peremptory challenges), and based on the fact that probabilistically speaking this isn't that unlikely an outcome, I don't feel that concerned about it.

But to focus on the legal issue itself, the law that this turns on regards the composition of jury pools, not ultimate jury selection. I would be interested to see a simulation (or also if someone smarter than me computed the probabilities): in 10,000 runs of filling an array of size 60 with random integers 1 - 1,000, how many times are there three or fewer array elements containing a number less than or equal to 78?
posted by jock@law at 12:55 PM on January 15, 2010 [1 favorite]

It's extremely clear that most people commenting didn't read the facts of the case and are just assuming this must be the result of some anti-African-American racism. Leaving aside the actual question before the Supreme Court which appears to be a technical question having to do with absolute vs relative disparity in terms of jury composition, the facts are nothing like what people are suggesting.

This case, it appears, has nothing to do with using peremptory challenges to exclude black folks from the jury. There were two primary reasons that blacks were under-represented in this jury pool. First, African Americans were more likely to request and be excused for non-statutory reasons like hardship. For example a single mother could claim that being in a lengthy trial would pose an unfair hardship since she is the sole caretaker and earner for her family. Since African Americans are more likely that their white counterparts to be single parents and from lower income brackets, people requesting hardship exemptions and such skew African Americans.

I strongly suspect that if judges refused to grant these hardship exemptions people would be (rightfully) claiming that a racist system was disproportionately harming the livelihoods of African Americans. You can't claim a system is racist if it excuses too many black people who request an exemption AND that it would be racist if it didn't.

The second reason appears to be that federal district juries were picked before state circuit courts. And african americans ended up on those juries. So, in fact, black jurors were not being preferentially excluded from juries; if anything they were preferentially selected and they simply ran out of black jurors.

It's easy to yell THATS RACIST but this case is not simple. What do you propse? Not grant the hardship exemptions? Put a limit on the maximum number of black people that can be on a jury? Bus in people from other states? What?
posted by Justinian at 1:03 PM on January 15, 2010 [9 favorites]

Yeah, it seems like the pool problem is the issue, and I think Justinian has a good point. If the issue is getting particular people into the courtroom to begin with, what's the fix?
posted by craven_morhead at 1:08 PM on January 15, 2010

In my case, a fair amount of the jurors were eliminated because of the have you been the victim of a crime/do you have family in law enforcement questions. That certainly eliminated a lot of the African American pool, although to be fair it also eliminated quite a few of the white jurors. Combined with the cherrypicking by the attorneys, it seemed to almost guarantee a strange sample of the potential pool.
posted by electroboy at 1:10 PM on January 15, 2010

array of size 60 with random integers 1 - 1,000, how many times are there three or fewer array elements containing a number less than or equal to 78?

= sum_{i=0 to 3} (60 choose i) (922/1000)^(60-i) (78/1000)^i
posted by esprit de l'escalier at 1:22 PM on January 15, 2010

I strongly suspect that if judges refused to grant these hardship exemptions people would be (rightfully) claiming that a racist system was disproportionately harming the livelihoods of African Americans. You can't claim a system is racist if it excuses too many black people who request an exemption AND that it would be racist if it didn't.

Sure you can. If it's excusing too many because of a prejudice against them, and the alternative is excusing too few because it disproportionately causes hardship to them, then there's nothing inherently contradictory about seeing racism in both of those things.

And I'm not saying that that's so, but if it is so, then perhaps an answer would be to modify the system such that, when applied without prejudice, it does not disproportionately cause hardship among them. For example, increase the amount of money paid to jurors, provide child care, institute draconian punishment for employers who are found to have strongarmed employees into begging off of jury duty, et cetera.
posted by Flunkie at 1:22 PM on January 15, 2010 [5 favorites]

(can you tell I'm getting into poker?)
posted by esprit de l'escalier at 1:24 PM on January 15, 2010

I would be interested to see a simulation (or also if someone smarter than me computed the probabilities): in 10,000 runs of filling an array of size 60 with random integers 1 - 1,000, how many times are there three or fewer array elements containing a number less than or equal to 78?

If I ran the numbers right, you'll end up with fewer than 3 elements <= 78 just about 1/3 of the time.
posted by TBAcceptor at 1:29 PM on January 15, 2010 [1 favorite]

If the jury is not diverse, you must reverse!
posted by Artw at 1:31 PM on January 15, 2010 [3 favorites]

How about <=3 elements?

Get your mind out of the gutter.
posted by jock@law at 1:32 PM on January 15, 2010

≤3 elements.

Get your mind out of the ASCII.
posted by grouse at 1:34 PM on January 15, 2010

Get your mind out of the ASCII.

How about out of the C? :-)
posted by jock@law at 1:34 PM on January 15, 2010

So they had 60-100 potential jurors...and only 3 of them were African American, although 7.8% of the county was African American? That doesn't sound right.

In New York State, at least, African Americans are statistically less likely to respond to a jury summons than whites. I think the last time this was studied was 1994, so the data might not be sound anymore, but at the time, African Americans were consistently underrepresented in jury venires in every county other than Brooklyn. A paper by the Capital District Black Bar Association found that this was partially due to juror non-compliance and partially due to the high degree of transience in majority-black zip codes leading to a higher rate of undeliverable summons.

There’s a strain of legal thought, mostly rooted in Justice Murphy’s aggressively egalitarian views on juries, that holds that a jury must be “impartially drawn from a fair cross section” of the citizenry. For a while, in the 1970s, it looked as though the Blackmun/Brennan/Marshall wing of the Court might push though a requirement that jury venires which markedly underrepresented a cognizable class were presumptively invalid, which would probably have necessitated remedial measures to create a more representative pool, but this view lost steam in the 1980s.
posted by Phlogiston at 1:37 PM on January 15, 2010 [1 favorite]

For example, increase the amount of money paid to jurors, provide child care,

This might work in Mayberry or something but here in Los Angeles it's not remotely possible. Where are you going to come up with the tens of millions of dollars necessary to do this? My rough estimate is that you're talking around 100million for Los Angeles Superior Court alone, per year.
posted by Justinian at 1:49 PM on January 15, 2010

Be that as it may, Justinian, it's a fundamentally different objection than "you're not allowed to claim it's racist."
posted by Flunkie at 1:51 PM on January 15, 2010 [1 favorite]

Also, if you're asking me specifically where I would get a hundred million dollars to better the equality of our society and our legal system in particular, the answer is that I would do so by decreasing the annual military spending of our country from nine hundred billion dollars all the way down to nine hundred billion dollars.

That's just me, though, and I'm not really sure what it has to do with this post.
posted by Flunkie at 1:57 PM on January 15, 2010 [1 favorite]

it's a fundamentally different objection than "you're not allowed to claim it's racist."

People are allowed to claim anything they want. The implicit part of my sentence was "if you want to engage in a useful conversation." I hope you'd agree that the great majority of previous comments were not making nuanced points about the subtle inequities that racism can present in the context of this case but were mostly just making huge, unsupported assumptions about the facts. It was those comments I was addressing.

That's just me, though, and I'm not really sure what it has to do with this post.

I suppose that depends on whether you are interested in ideological purity or actually addressing the problem in an incremental and realistic way. If, as you suggest, we address the problem by making jury selection less of hardship on the poor, we have to come up with the money to do that. In the context of our current political and judicial system. I would suggest that handwaving about slashing the military budget and funnelling the money to this is not realistic.

But, like I said, I guess it depends on if you're trying to come up with ways to address the issue or just interested in bitching about it. In which case I would solve the problem by inventing a Hogwarts Sorting Hat that can pick sort people infallibly into Guilty and Not Guilty. PROBLEM SOLVED.
posted by Justinian at 2:13 PM on January 15, 2010

(Also, state courts are a state budgetary issue. The military is a federal budgetary issue.)
posted by Justinian at 2:14 PM on January 15, 2010

Probability of getting 3 or fewer
pbinom(3,size=60,prob=.078)
[1] 0.3020253

Probability of getting fewer than 3
pbinom(2,size=60,prob=.078)
[1] 0.1434534

In the other county
pbinom(3,size=60,prob=.181)
[1] 0.002945828
pbinom(2,size=60,prob=.181)
[1] 0.0006311099
posted by a robot made out of meat at 2:18 PM on January 15, 2010 [1 favorite]

Having a bigger pool would help
pbinom(c(3,2),size=100,prob=.078)
[1] 0.04244168 0.01334166
(this is all in R if anyone is wondering)
posted by a robot made out of meat at 2:22 PM on January 15, 2010

As I'm sure you're aware, the federal government gives state and local governments money to help with all sorts of things that fall under the purview of those state and local governments, including for certain aspects of our legal system.

As I'm sure you're also aware, even ignoring the above fact, decreasing the federal tax burden of an individual increases the potential state or local tax burden that he or she could reasonably be expected to have, assuming that their overall tax burden is reasonable to begin with.

Finally, the part of your post that I was responding to was not you merely responding to less-than-nuanced points in the posts of MeFites who didn't read the article; it was you responding to such points, plus you responding to additional points that you imagined people would make in another situation, arriving at you saying that "you can't claim" that this situation is racist, ostensibly because of the interaction between the less-than-nuanced points of MeFites who didn't read the article plus the other points that you imagined people would make.
posted by Flunkie at 3:05 PM on January 15, 2010

rhta, you pointed out something that some others have overlooked; lawyers don't need to say *why* they're using preemptory challenges.

First, this isn't a case about peremptory challenges at all, so that's irrelevant. Second, that statement happens to be wrong in this context. Lawyers are not permitted to exercise their peremptory challenges to exclude jurors on the basis of race. (See Batson.) The discrimination at issue here is far more insidious and systemic, if it's actually occurring.
posted by The Bellman at 3:17 PM on January 15, 2010

Get your mind out of the ASCII.

I believe the phrase you're looking for is: "Get your head out of your ASCII".
posted by The Bellman at 3:19 PM on January 15, 2010

This might work in Mayberry or something but here in Los Angeles it's not remotely possible. Where are you going to come up with the tens of millions of dollars necessary to do this? My rough estimate is that you're talking around 100million for Los Angeles Superior Court alone, per year.

One thing I remember from the OJ trial was that CA hardly pays it's Jurors anything.

MAYBE IF YOU CAN'T AFFORD TO PAY YOUR JURORS YOU NEED TO STOP TRYING TO PUT SO MANY PEOLE IN JAIL. HELLO.
posted by delmoi at 3:26 PM on January 15, 2010

CA can't afford shit for anything. They should declare it bancrupt and sell it to some libertarians or something.
posted by Artw at 3:28 PM on January 15, 2010

One thing I remember from the OJ trial was that CA hardly pays it's Jurors anything

I served on the jury of a 3 month long murder trial on the high-security floor of the main Los Angeles Superior Court Courthouse. They reimbursed me for gas. More or less. Care to guess what kind of jury you end up with when you are paying like $3 a day to people for long trials? Note that food is not included and there is no refrigerator to store food in. So, basically, you are paying them for the privilege of serving on the jury.
posted by Justinian at 4:39 PM on January 15, 2010

Maybe they should take the Heinlein approach. "Service guarantees citizenship - would you like to know more?"
posted by Artw at 4:41 PM on January 15, 2010

Ooo, bold and all caps.
posted by smackfu at 5:18 PM on January 15, 2010

The Libertarian Republic of California will be all bold and allcaps, all the time.
posted by Artw at 5:20 PM on January 15, 2010

Forgive me if someone mentioned this already, but aren't jury pools drawn from the voter registration rolls? I presume the pool of registered voters does not reflect the same demographics as the general population (in part influenced by disproportionate incarceration rates, in part because of immigration, but for other reasons as well I imagine)
posted by serazin at 7:10 PM on January 15, 2010

Forgive me if someone mentioned this already, but aren't jury pools drawn from the voter registration rolls?

Depends on the location I think. Here in Los Angeles registering at the DMV (e.g. for a driver's license) signs you up for jury duty.
posted by Justinian at 7:37 PM on January 15, 2010

Interesting. I imagine drivers license holders are also not totally representative, but probably more so than voter rolls.
posted by serazin at 7:43 PM on January 15, 2010

Forgive me if someone mentioned this already, but aren't jury pools drawn from the voter registration rolls?

New York uses voter registration, DMV ID records, state income tax filings, unemployment and welfare rolls and volunteers, and the lists are updated regularly. I believe that there was an attempt to use utility bill lists, as well, but that this proved legally infeasible, for some reason.

Our former Chief Judge, Judith Kaye, made a project of jury reform from the beginning of her tenure. She favored creating as inclusive a list as possible, did away with service exemptions for lawyers and judges, and openly expressed the view that peremptories should be abolished.
posted by Phlogiston at 8:11 PM on January 15, 2010

Forgive me if someone mentioned this already, but aren't jury pools drawn from the voter registration rolls?

depends on the jurisdiction - in 1993, i'm pretty sure that jury pools in michigan were drawn from the voter registration rolls - in the last few years, they've moved to using driver's licenses and state i d cards

i can't give you a link, but it's my recollection that this is not the first time jury selection in s w michigan has been questioned in appellate court, and in fact, hundreds of cases were sent to retrial - on the other hand, i think someone should look at the actual evidence involved and consider whether any kind of reasonable doubt existed so that the composition of the jury would have made some kind of distance

all i can say is that if i was ever called to serve on a jury involving a murder case, i'd have to be damned sure before i sent someone to prison for life for it - and i came pretty close to that once
posted by pyramid termite at 8:58 PM on January 15, 2010

difference, not distance - oh, demon alcohol ...
posted by pyramid termite at 8:59 PM on January 15, 2010

Speaking as somebody whose doctoral dissertation entailed the first videotaping in history of an American civil jury, who's published many scholarly articles on deliberative dynamics, and who's done a stint as a litigation consultant, I can say with little hesitation that the jury system is ridiculous. It's hallowed and mythic and ridiculous. The demands it places on jurors are absurd and its expectations are also absurd. Add horrible, cancerous American race politics to it? Dear God.

I have no respect for it at all. I'm so happy to live in a country where bench trials are, at least, an option in criminal trials, and woud not shed a tear to see the entire institution removed from our Anglo-North American legal system.
posted by ethnomethodologist at 9:21 PM on January 15, 2010 [1 favorite]

ethnomethodologist wrote: woud not shed a tear to see the entire institution removed from our Anglo-North American legal system.

You don't think it can be fixed?

I've known a few people who have served on juries, and hearing it from their side, with the evidence they got to hear relayed to me, I've generally been in agreement with them as to the verdict returned. Of course, none of them were on a murder trial or anything like that, just the more garden variety felonies.
posted by wierdo at 9:43 PM on January 15, 2010

Of course, none of them were on a murder trial or anything like that, just the more garden variety felonies.

I served, like I said, on the jury of a pretty serious case here in Los Angeles. 16 year old kid was executed (allegedly) by a couple members of an extremely notorious prison gang because he was going to testify against an affiliated dealer. Trial lasted quite a while.

My impression? If justice is served in a lot of these cases it is only by sheer random chance. The lives of three defendants and justice for a 16 year old kid who was shot five times in the head at point blank range depended on a group of people who couldn't follow the most basic of directions, couldn't fill out the simplest of forms properly, couldn't remember who the participants were, couldn't follow the most straightforward of logical arguments, and couldn't make the most basic of deductions or inferences. No, I'm not kidding.

As far as I could tell, it was all about gut reactions to the most superficial of qualities of the defendants, lawyers, and witnesses.

God help me if my life is ever in the hands of a jury of such "peers".
posted by Justinian at 10:23 PM on January 15, 2010

IANAL but a lot of my friends are. Even here in Australia, lawyers are absolutely going to try to end up with a jury that favors "their" side. There's a lot of theories and speculation about what factors will favor which side, but it seems that neither prosecutors nor defendants like educated jurors. Prosecutors think that they are more likely to pick unreasonable holes in cases; defense lawyers think that they're less sympathetic. Anyway, funny story:

A relative of mine in Louisiana has a prosecution lawyer friend who is ... well, he's racist. Anyway, Racist Friend was in court and challenging potential jurors. The defense stood up and said "Your honor, I object. He's challenging all the black candidates." The judge leans over and says "Is this true, Racist Friend? Are you challenging all the black candidates?"

Now, Racist Friend is not very bright, but he's good at spotting landmines in his path, so he says "Uh, no your honor, I was challenging them for cause." The defense says, "OK, why did you challenge her?," pointing to some schoolteacher.

"Because I thought that she might be prejudiced against my client, what with him being poorly educated."

"Why did you challenge him?," pointing at a mechanic.

"Because my client is better dressed than him and I thought he might be biased."

"And him?"

"He's dressed too well."

And so it goes, until the reasons are things like "He looked at me funny." But he did in fact have an answer of sorts for all the objections, and the judge ruled that as long as he had a non-racist answer the defense couldn't claim that the jurors were being dismissed unreasonably. And from then on it was accepted that prosecutors could get away with dismissing anyone they wanted to, because after all - how hard is it to say that you don't like the way the juror is dressed? So Racist Friend apparently set a precedent, despite being not only racist, but rather dim.
posted by Joe in Australia at 5:42 AM on January 16, 2010

I'm so happy to live in a country where bench trials are, at least, an option in criminal trials

Wait, what? You say that like it's not an option in the U.S.
posted by jock@law at 1:06 PM on January 16, 2010

From a game-theoretic viewpoint, jury selection on the surface seems like it would lead to a fair division. That is, the final jury would be equally acceptable to both the defense and prosecution. Kind of similar to the cake-cutting problem or the ultimatum game. The defense has as much power in the ideal case as the prosecution.

The problem here I think is the skewed distribution of jurors in the pool. Like others have said, we need to make jury duty less of a burden for everyone.
posted by formless at 10:47 PM on January 16, 2010 [1 favorite]

There are various constraints that make it even more interesting from a game-theory viewpoint. You only get a certain number of challenges (this varies by jurisdiction) and you may not know the identity of each potential juror (again, varies by jurisdiction). So you have to be careful when exercising your challenges - you don't want to waste them by using them too early or too late.
posted by Joe in Australia at 2:24 AM on January 17, 2010

In case anyone is still checking on this thread, here is the (pdf format) transcript of the oral argument before the Court.

Here is how the editor of the Jury Bulletin for the National Center for State Courts reported the argument:


The U.S. Supreme Court heard oral arguments in the case of Berguis v. Smith on January 20, 2010. The editor was present to hear the arguments. There were two key issues in the case. First,whether the Michigan Supreme Court had violated clearly established federal law when it determined that the defendant was afforded a jury panel that was a fair cross section of the community. Second, what the standards are for determining if a panel has met the constitutional threshold for being a fair cross-section of the community.
The court spent most of their time considering the second issue presented. The state of Michigan was the petitioner in this case, asking that the Court reverse the 6th Circuit and order that the conviction be reinstated. The petitioner had argued that the Court should adopt a rule that would cause a jury panel to be presumptively constitutional if the racial/ethnic composition of actual jury panels was within 10% of the composition of the jury eligible population in the jurisdiction. This position was favored by Justice Scalia who asked, what's wrong "with picking a number. Rather than leaving it up to the courts of appeals or the district courts to use different numbers, different times -- I don't have to review all of these cases all the time. Why don't we pick a number? You want 10, right?"
However, other members of the Court questioned the constitutionality of a single bright line rule. The rationale is that such a rule would mean that if a jurisdiction had a population consisting of a small percentage of a protected class, than their complete absence from jury panels would not be a constitutional violation. Justice Sotomayor stated, "I don't think that any court has suggested that the complete absence of the protected group in that kind of number wouldn't give rise to a fair representation claim. That's why this Court, the Michigan court, and many others have said that the absolute disparity test just can't be used in every circumstance."
The importance of this case for state judges and jury managers is that the Court as a whole signaled a willingness to consider the concept of using a comparative disparity test to evaluate whether jury panels are constitutionally a fair cross-section of the community. The Court also heard arguments and seemed to be aware that granting a high rate of hardship excusals can skew the racial composition of a jury panel. Even if these issues are only addressed in the dicta of the opinion, they may appear in a future case. T
posted by bearwife at 5:56 PM on January 26, 2010