Along with more than 50 strangers, I filed into a San Diego courtroom a few years ago. I ambled to my seat in the jury box, plucked a white laminated piece of paper from the wooden chair, plopped down and skimmed it.
“Have you ever been arrested?”
“Do you know of anyone who has been a victim of a crime?”
Those two questions seized my attention. Does answering yes, I pondered, indicate less fitness for jury service? I next scanned the unfamiliar faces.
Ahead and slightly to my left, a clean-cut white man, the prosecutor, sat at a table canvassing the room’s new entrants. Across from him and farther away from me sat a slightly less polished white man, the defense counsel. He also spent much of his time studying us. In the chair to his left, a young dark-skinned black man with short locs alternated between staring vacantly downward and forward and conferring with his attorney. The judge called me by my new name, Prospective Juror No. 4. If chosen, I would help determine whether the state should imprison this brother for first-degree murder.
I figured I wouldn’t get to serve on that jury, though. California law, in first-degree murder cases, grants the prosecution and defense 20 “peremptory strikes,” the right to excuse a prospective juror without providing a reason. I thought the prosecutor would use one on me for two reasons.
First, I’m a lawyer. Many prosecutors recoil at the prospect of a lawyer juror. The state carried the burden of proving beyond a reasonable doubt that the defendant murdered someone, a burden more easily shouldered with a jury of minds more malleable than that of a lawyer, particularly one who focused on race, white supremacy and discrimination.
Second, I’m a black man, about eight years older than the defendant. A troubling reality ricocheted around inside my mind — prosecutors strike black folk from juries at a higher rate, especially when a black defendant stands accused.
I surveyed the other potential jurors, devoting special attention to the few black faces. More Hispanic faces peppered the bunch, but not many. White faces? Only covering my eyes or staring at the ceiling would block them from my vision. Understanding the history of the all-white jury being employed to nearly guarantee convictions of people of color, I fretted about that possibility here. Right then, I decided if I detected a whiff of anything strange — I couldn’t define strange other than by paraphrasing Supreme Court Justice Potter Stewart’s remark about obscenity: I know it when I smell it — I would speak forthrightly about implicit racial bias.
When the prosecutor questioned me to determine whether I would be a favorable juror, he clumsily identified the victim as a black man, cueing me to identify with him. Next, he described a San Diego Police Department policy of tracking local gangs by approaching youths in certain neighborhoods to ascertain which had gang affiliations. He inquired about my feelings on the matter, though no other juror.
A few questions in, I smelled it.
When he asked me a general question about bias — positive I was going home soon, regardless — I veered into a discussion about implicit racial bias. I described what it meant, tailoring the message for the situation. In a room full of white people, I noted that although all of them likely envisioned themselves as good, egalitarian people, the negative stereotypes American culture broadcasts about people of color, particularly black men, barrage them daily. These implicit messages taint how they interpret situations, a phenomenon that affects us all, including people of color. But if we acknowledge that these biases afflict our minds and strive to mitigate their power, we can reach fair decisions. The already quiet room plunged to a new degree of silence.
I knew I wouldn’t serve on the jury. I nevertheless hoped to leave a message that would remain with those who did: The defendant’s blackness provided no evidence of his guilt, but their brains probably assumed it did and they likely weren’t aware of that.
Once we reconvened after lunch, the prosecutor struck me from the jury. My recognition of the many horrors produced by the criminal justice system had compelled me to stand in the ring and fight back, in my own way. I soon learned that systemic injustice led others to adopt a different posture.
A few months back, I pitched my editor a story idea: to interview black prosecutors on the state of black jury service. Are juries as diverse as they should be? If not, why? Do they know if their colleagues strike prospective black jurors because of race? The path I traveled for this story forked into a new direction when a black Southern prosecutor, who wanted to remain unnamed so he could speak frankly and in detail, let loose on black folk who avoid jury service because they don’t want to work within a racist system.
“[Some black] people think that whatever they do, it’s not going to matter. They think the system isn’t designed for them. So when you’ve got a bunch of people thinking that the system is rigged or the system is fixed anyway, then it’s almost like, what difference does it make? It’s only set up to keep the black man down.”
The prosecutor continued: “If you start acting like that about the system, thinking that you need a complete separate system for yourself, you become part of the problem. And it’s nothing better than being an obstructionist. … They tell themselves, ‘I don’t care what ends up happening. You know it’s set up against black folks, so why does anything matter what I say or what I do?’ ”
I spoke to William Snowden, a New Orleans public defender and founder of The Juror Project, an organization focusing on instructing minority community members that their presence in the jury box helps the criminal justice system operate more equitably. He likewise traces apathy toward jury service to feelings of helplessness.
Snowden notices “a mindset of negativity around jury duty and thinking that it’s something that they should get out of and not understanding the importance that they can have in actually being in the deliberation room. Additionally, there is a large community of people of color that have had negative experiences with the criminal justice system, and when they get invited in to kind of be part of it, their initial gut reaction is that this is a bad system. This is an unfair system. And I don’t want to be part of this injustice that kind of gets carried out on a regular basis.
“I think the problem is we have too many black folk,” the prosecutor bluntly stated, “especially in the South, that are saying things to not be on the jury.” He said he often observes black prospective jurors expressing views that indicate they want nothing to do with the system. He told me about a black woman saying she couldn’t judge anyone because of her Christianity, meaning she would never convict the defendant. When prompted to articulate Scripture supporting her views, she floundered.
Snowden unloaded similar tales. “ ‘I can’t vote guilty for someone who is charged with possession of crack cocaine because I don’t believe in this war on drugs and I don’t believe in incarcerating drug addicts.’ When you say something along those lines, the prosecutor will move for what’s called a legal-cause strike to get you kicked off the jury.”
When I heard this, I remembered a white woman from my jury duty experience. She seemingly wanted to get out of her civic responsibility by maligning the system as too racist for her to discharge the duties of a juror. Don’t many, regardless of race, seek to avoid jury duty, I wondered? Polling helps answer this: A Pew Research survey recently found that 58 percent of black people, 61 percent of Hispanic folk and 71 percent of white people, recognize jury service as a mark of good citizenship.
What both men discussed was helplessness leading to apathy, a mental state one should expect to detect principally in minority populations. Their viewing of this dilemma through a racial lens made perfect sense.
Snowden informs those he interacts with for The Juror Project that diversity elevates the system. “What the research shows,” he said, “is when [people of varying viewpoints] get in a room, they are going to have longer deliberations. They’re going to ask more questions and more objective decisions are going to be made. So when we increase the diversity across the board with race, with gender, socioeconomic status, we’re going to get a better outcome.” He delivers a simple message: “Your minority perspective in [the deliberation] room can have a large impact on that particular trial.”
These remarks recalled an episode from ABC’s black-ish. In the episode, titled One Angry Man, lead character Andre Johnson (Anthony Anderson) must serve on a jury. He initially plans on surreptitiously listening to an audiobook during the trial, sneaking an earbud into his left ear. But then the defendant — a young black man charged with burglary and grand larceny represented by an ill-prepared, fumbling public defender — captures his attention and his mood switches. His gaze shifts to his fellow jurors. Eleven white faces. One black one. His. He yanks out his earbud. This nightmare, upon reflection, presented him a great opportunity to achieve some good.
Andre deeply cares about racism and the status of black folk, wanting to parent kids aware of the broader racial struggle as they grow up with access to wealth and resources that few black kids enjoy, including himself, a poor black boy from Compton, California. Provided a chance to make an unjust system fairer, he almost allowed it to slip away. If the a ha moment had never struck him, Andre would have been complicit with the racism and discrimination he rails against in each episode.
We must stamp the complicit label on the sort of black folk Snowden and the prosecutor mentioned. That some feel mired in despondency must elicit sympathy and empathy. But feelings of helplessness only exacerbate the situation if it produces complacency and withdrawal rather than action. Instead of exercising agency, they relinquish their power to act at all. In fact, they gift the unjust system what it covets — their voices muzzled, their presence nonexistent and white folk with unfettered control over the scepter.
Those I interviewed described real people who represent an unknowable number who need to grasp this truism: Defeatism breeds complicity.