Commentary: Getting a Fair Trial Post-Ferguson

I got a call at 3:30 yesterday afternoon from a prospective juror who was just dismissed in a Yolo County case. The case, which is interesting in its own right, involves a black man charged with resisting arrest – with serious questions as to whether this was a resisting arrest case or an excessive force case. That issue will be determined by a Yolo County jury later this week.

The more immediate issue was the dismissal of the only black prospective juror. It seems that the Deputy DA in this case bounced the only black prospective juror among 80 people, after barely questioning the woman, who is a research scientist at UC Davis.

This immediately triggered a question of whether the prosecutor violated the standards for race discrimination set under Batson v. Kentucky, 476 U.S. 79 (1986). The other prospective jurors were excused from the courtroom, and the juror described to the Vanguard that for twenty minutes there was discussion or argument in the courtroom with the other prospective jurors waiting outside. Eventually Judge Sam McAdam allowed the peremptory challenge (the dismissal of a prospective juror without stating a valid cause for doing so) to stand.

The Vanguard was told that the DA was – not surprisingly – particularly curious about the jurors’ trust in police officers. In case that may well come down to the word of police versus the word of the defendant, trusting the police is a critical issue.

There is nothing surprising or even unusual about these issues, but they do raise a troubling point – by excluding people who may question the judgment of police officers, are we precluding the defendant from getting a fair trial?

This issue is likely to come up more and more frequently as we move forward in a post-Ferguson world, where police are being questioned as never before.

Coincidentally, on Monday morning I read a lengthy essay by a black juror in a murder case. It is a long but fascinating read that casts doubts about the efficacy of the jury system overall. (I strongly recommend you read it).

He notes, “The first thing the prosecutor did during voir dire was ask all the men of color whether we trusted cops. Every black man had a story: police harassment, spurious arrests, intimidation. They were all eliminated.”

He continues, “I was asked if I had any experiences of this kind, and I said no. It was the truth. Perhaps this was the time to mention that having witnessed the murders of Eric Garner and Walter Scott on video made personal experience unnecessary. I didn’t mention it.”

In the end, the jury composition in that particular case was not problematic, while there were only two men of color on the jury – an African-American and a Latino – there were also two Latina women, one African-American woman, and one Asian woman. The remaining six jurors were white.

But to me the interesting thing is that, for prosecutors, the question de jure seems to be trust of cops. If we eliminate everyone with a story like police harassment, spurious arrests and intimidation, are we in effect eliminating anyone who has experienced what the defendant in the Yolo County case may well have experienced?

To put it another way, would anyone think it would be proper for the defense attorney to dismiss anyone who trusted the police? Anyone who said they never had an incident with the police?

I was troubled reading the juror’s account of the murder case: “There is a glaring lack of evidence in this case. A single eyewitness, who has a sexual history with the accused, who lied under oath in previous testimony, who was high at the time of the incident. No murder weapon. Claims of an accomplice, who has never been found. No forensic evidence — fingerprints, DNA, surveillance camera footage — tying the defendant to the scene of the crime.”

He notes, “There’s a handwritten confession that the defendant claims he didn’t write. He says he signed a blank page that appeared later containing a confession. In the months since the arrest, changes have been made to local precincts that now allow them to record all interrogations on video. In this case, no video was taken.”

He writes, “The suggestion of a police conspiracy is laughable to the prosecutor, and, I will learn, to many of my fellow jurors. I suppose this is why every black man was eliminated from the jury pool. If it’s biased to presuppose police officers are corrupt, it should be considered equally biased to presuppose that they always act lawfully. Instead, it’s considered ridiculous. The presumption of innocence is dangerously misplaced.”

As the Vanguard noted in late October, the Supreme Court is looking into a case out of Georgia where state courts declined to find a Batson violation despite the discovery of notes that revealed that the prosecutor had “(1) marked the names of the black prospective jurors with a ‘B’ and highlighted them in green on four copies of the venire, the list from which jurors may be selected; (2) circled the word ‘BLACK’ next to the ‘Race’ question on five juror questionnaires; (3) identified three black prospective jurors as ‘B#1,’ “B#2,’ and ‘B#3’; (4) ranked the black prospective jurors against each other in case ‘it comes down to having to pick one of the black jurors’; and (5) gave explanations for its strikes that were contradicted by its notes.”

The question before the Supreme Court is, “Did the Georgia courts err in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case?”

In an op-ed in the New York Times today, former Deputy U.S. Attorney General Larry Thompson (2001 to 2003), argues that this case “challenges the all-too-common practice by which prosecutors deliberately exclude African-Americans from criminal juries.”

The problem is, even if the Supreme Court tightens up Batson – which they seem inclined to do based on the early questioning, it might not be enough. The prosecution can simply eliminate potentially questioning and skeptical jurors based on the question of trust of police officers.

It will be interesting to see what comes of the Yolo County case, but the broader issue is troubling and not easily resolved.

—David M. Greenwald reporting

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