How do you find an impartial juror in the information age?
The temptation must be great to speed up jury selection, but judges should exercise caution to ensure justice is done.
How do you select an impartial jury when nearly all potential jurors have been exposed to cases that have generated national prominence? Judges have been in the spotlight in recent weeks with how to accomplish this delicate task in high-profile cases in Brunswick, Georgia, Charlottesville, Virginia, and Kenosha, Wisconsin.
In Brunswick, three white men are accused of chasing and fatally shooting Ahmaud Arbery, a 25-year-old Black man out for a jog. The events were captured on apparently incriminating cellphone video. Since the video will be the star witness and was seen by virtually everyone in the county of 85,000, it took 11 days to qualify 65 people, from which a jury was selected Wednesday night.
The 12 jurors and four alternates include just one person of color, a Black man.
How did the jury become nearly all white? Both sides had a right to use socalled peremptory challenges to strike jurors for any reason at all, so long as the strikes were not based solely on the juror’s race, religion or sex. The defense used its challenges to eliminate eight otherwise qualified Black candidates. The prosecution objected that there was a clear racial bias motivating the challenges. But even after lamenting the results, Superior Court Judge Timothy Walmsley ruled that, in each of the eight instances, the defense had a legitimate, race-neutral reason to eliminate the juror.
Even before the problems caused by peremptory strikes, two forces combine to create a perfect storm around jury selection in a case of white men killing a Black jogger. Race is one, given the possible racial motivations the defendants might have had for thinking a Black man in the neighborhood was a burglar. Walmsley was entirely right to allow lawyers to question potential jurors about their attitudes on whether the criminal justice system treats Black people fairly.
The cellphone video was the other factor complicating jury selection. Walmsley could have automatically eliminated any person who had seen the video. But this might have left on the jury only people who didn’t care enough to follow the lead stories of the day. One woman remains in the Brunswick trial jury pool because she goes “out of my way not to read news or politics.”
Walmsley had no real choice but to allow people who have seen the graphic video to serve as jurors. He disqualified those who said their minds were made up that the defendants were guilty. But he followed a troubling provision of Georgia law that considers jurors to be impartial, no matter what they know before trial, so long as they say they can be fair.
In Charlottesville, jury selection wrapped up last week – but took longer than expected – in the civil trial of organizers behind the “Unite the Right” rally for allegedly inciting racial violence in 2017 over the removal of a statue of Robert E. Lee. Nine plaintiffs are seeking damages for physical and emotional injuries they allegedly suffered.
Given the racial issues, Judge Norman Moon took time to drill down into a potential juror’s views on issues such as the Civil War, the Confederacy, Black
Lives Matter and Southern pride. He dismissed one juror who felt that some Black Lives Matter protesters were troublemakers. He dismissed another who called white supremacists terrorists. But what does it mean to be neutral about white supremacy? Or to have no opinions about Black Lives Matter protests? No wonder the plaintiff ’s attorney said, “We have had such a difficult time ... to find qualified jurors.”
When white supremacy is on trial, it is not even clear what it means for jurors to be impartial, or whether they should be.
Suppose a potential juror says, “I am Jewish, and I consider white nationalism to be a threat, but I can be fair.” Should the judge take the juror’s word? Does the judge get a fairer jury by eliminating all who have settled opinions about white supremacy?
Exercising caution
In Kenosha, jury selection surprisingly took only a day in the trial of Kyle Rittenhouse, an 18-year-old charged with killing two men and wounding a third when protesters gathered after a police officer shot Jacob Blake, a Black man.
Kenosha County Circuit Judge Bruce Schroeder managed to seat a jury quickly despite acknowledging the case had become “very political” due to passions ignited by the Second Amendment right to bear arms. Rittenhouse came to the protest with an AR-15-style assault rifle. Schroeder dismissed one juror who thought that bringing a military assault rifle to a protest was already evidence of guilt. He dismissed another who said his belief in the right to bear arms was so strong that he would disregard evidence challenging Rittenhouse’s use of his weapon at a chaotic event.
But Schroeder cut questioning of other jurors short, saying, “I don’t want to get sidetracked into other issues. I don’t care about your opinions on the Second Amendment.”
In a case all about whether Rittenhouse fired a rifle in alleged self-defense, Schroeder had to balance moving jury selection along while leaving time to probe each juror’s views on the right to bear arms. One day might not have been enough to accomplish such a thorny task.
Together, the ongoing trials in Brunswick, Charlottesville and Kenosha show why jury selection can be long and difficult. We may want trials to proceed quickly, but we should be careful about what we wish for. The genius of the American system of criminal justice is that even accused individuals whose guilt appears certain are entitled to test the government’s case on a fair and neutral playing field. That commitment protects all of us, the innocent as well as the guilty, from the prodigious power of government.
When white supremacy is on trial, it is not even clear what it means for jurors to be impartial, or whether they should be.