What happens when a potential juror admits they are racist?

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Last week, a Boston criminal defense attorney representing a person of color revealed his struggle during jury selection in Fitchburg. A member of the jury said he was biased and didn’t care about black people. This juror was fired from the jury pool, but the case was tried by an all-white jury. To answer questions about how often this happens and what safeguards are in place to protect against bias in the jury box, GBH News legal analyst Daniel Medwed joined Morning Edition hosts Paris Alston and Jeremy Siegel. This transcript has been slightly edited.

Jeremy Siegel: To begin, let’s go as far as we can, at least as far as the law in the United States is concerned. What are the constitutional requirements for jury trials in criminal cases in the United States?

Daniel Medwed: The United States Constitution and the Massachusetts Bill of Rights provide that defendants have a constitutional right to trial by jury. This trial must take place in the district where the alleged crime took place, not necessarily where the accused or the victim lives, but where the events occurred. In addition, the defendant is entitled to what is called a fair and impartial jury: jurors who are unbiased and who represent a fair cross-section of the affected community. Now, Massachusetts has a very interesting and somewhat alarming history in this regard.

On the one hand, the positive side is that we were at the forefront of the states, one of the first states, to allow black men to serve as jurors. There is a case from Worcester in the 1850s where two black men served on a criminal jury. But on the other hand, we dragged our feet to fully integrate women into the process. It was not until 1949, I believe, that our state legislature passed a law positively encouraging this practice, and even then we were slow to fully implement this goal.

Paris Alston: We always hear about us as American citizens having this right to a fair and impartial jury. But let’s talk about what that actually means in practice, Daniel, because from the example we heard at the top, those things can manifest in jury selection. Even though this juror was eliminated, he still ended up with an all-white jury. And we know that an all-white jury is 16% more likely to convict a colored defendant than to convict a white defendant. How does this happen and what are some of the obstacles that can arise when trying to create a fair and unbiased jury?

Medwed: There are many obstacles. Here are two, two main ones. The first is really structural, and there’s not much you can do about it: what if the crime happens in a very homogeneous community where the racial and ethnic makeup of the population doesn’t include a lot of people who correspond to the identity of the accused? There’s not much you can do in this situation. The second scenario is much more common. Let’s say that in theory you could assemble a fairly diverse jury panel, a representative jury panel. How to flush out biases?

How do you winnow the pool so people are fair and unbiased? The lawyers and the judge have the opportunity to ask questions to the prospective jurors. This is called the voir dire process, as part of jury selection. But people are rarely open with their weaknesses, their prejudices, their prejudices. That’s what makes the Fitchburg case that you mentioned up top so interesting, because the prospective juror was quite outspoken about his racism, about his biases. Outside of this rare situation, lawyers essentially have to use their instincts and profile jurors to figure out who would be good or bad for their client.

Siegel: You mentioned how lawyers and judges can ask potential jurors questions, and lawyers have the ability to remove jurors from the class. How does it work exactly?

Medwed: Lawyers can do this in two ways. The first is called a challenge for cause. And that’s where you hit a juror for showing obvious bias or a conflict of interest. Suppose the potential juror is related to the victim or is a former police officer in a case where police testimony is going to prove vital, you can just hit him for cause. The second tool is much more nuanced and trickier. It’s called a peremptory challenge, and it’s where you can smack a juror for no articulate reason, with no explanation.

In Massachusetts, the defense and prosecution each have four peremptory challenges in a criminal case. It goes up to 12 in cases where the accused faces a life sentence, but it’s really a tool that carries the risk of misapplication.

“People are rarely open with their weaknesses, their prejudices, their prejudices.”

-GBH News legal analyst Daniel Medwed

Alston: How do we make sure they’re used appropriately and that lawyers aren’t using them as a ruse to, say, remove all people of color from a jury panel?

Medwed: Well, for many years that’s exactly what happened, especially in the long and sordid history of the Jim Crow-era South, where prosecutors were trying to create an all-white jury in the cases involving a black defendant, or where the white defendant has been charged with a crime of racial violence. In 1986, the Supreme Court tackled this head-on in a case called Batson v. Kentucky, a very famous case in which the court essentially empowered trial judges to review how prosecutors use these peremptory challenges. And if they detect a pattern of racial discrimination, they can bounce the case. They can find a constitutional violation. But despite this case, which at this point is 36 years old, it happens often.

Siegel: Let’s talk about what’s going on at the rear. Once the jury is selected, the trial is underway and they are in the deliberation room, can you detect if racism is part of the deliberations? Can jurors give the court details of what is being said behind closed doors?

Medwed: It’s fascinating, because the answer is usually no. You can’t engage in what lawyers call a post-verdict inquiry into jury deliberations lest the threat of that scrutiny chill the conversation, people say what they think or vote according to their conscience if they knew they had to be responsible to the judge next. It’s a really interesting question, and it’s kind of counter-intuitive because we have this really, really elaborate system before that where we dig up the bad evidence and leave only relevant, reliable information.

But at the back, we slam the door. We do not enter the deliberation room. Now the reason here and I’m curious if you accept it is that if we give the best possible evidence to 12 fair and unbiased jurors, more often than not they will get a fair result. And that, of course, raises the question that we have already explored. How to get 12 fair and impartial jurors?

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