Is Lady Justice really blind? Or maybe she is selective when it comes to the race of the potential juror.
The Washington State Supreme Court recently sidestepped a golden opportunity to bring to an end to the use of peremptory challenges in jury selection. A recent article in Seattle Times Northwest used the following headline: “State justices seek protections from racial bias in jury selection.” The article explained:
While considering the murder conviction of a black man, the justices expressed concern that race is often a factor –conscious or unconscious – when lawyers use their peremptory challenges to dismiss potential jurors from cases. (8/2/13).
The case before the court involved the appeal of a murder conviction in which the convicted individual alleged that the prosecutors singled out the only black person in the jury pool for additional questions about her views on the role of race in the justice system. Utilizing the peremptory challenge the prosecutor ultimately dismissed her from the jury pool.
To understand the institution of peremptory challenges in jury selection, the article explains the following:
When lawyers question members of a jury pool in Washington they can ask prospects (prospective jurors) to be removed for cause, such as some evidence the juror would not be able to sit impartially on the case. They are also allowed three peremptory challenges, by which they can have jurors for no reason at all, as long as the effect is not purposeful discrimination.
While the justices voted to uphold the murder conviction several expressed “concern” for what they described in persistent bias in jury selection. So what is the outcome of this concern? Nothing. What changes will be made? No changes. None.
The justices acknowledged that the system of peremptory challenges, developed in England during the 13th century and adopted without debate by the Washington’s territorial legislative financially overburdens and lacks any evidence that it is effective.
One justice, Justice Steven Gonzalez stated the following in his written opinion:
Peremptory challenges are used in trial courts throughout this state often based largely or entirely on racial stereotypes or generalizations. As a result, many qualified persons in this state are being excluded from jury service because of race.
Justice Gonzalez, the only ethnic minority member of the Washington State Supreme Court called for the immediate elimination of peremptory challenges in jury selection. However, even though as many as seven justices wrote 110 pages of opinion acknowledging racial impacts on jury selection, none were willing to join Justice Gonzalez in calling for the immediate elimination of peremptory challenges.
The justices apparently did not find that the impacts warranted any direct action to eradicate racism within the jury selection pool. Here are samplings of their comments:
· Justices Owens/Wiggins: instead of making sweeping changes, the court (State Supreme Court) could create new rules regarding jury selection.
· Justices Madsen/Johnson: we are concerned about race, yet the court should stick to the issues within the stated appeal.
· Justice Stephens: concerned about race however the challenges are enshrined in state law.
This is the basis of white privilege. Whereas good meaning people can engage in legalese and academic minded questions, knowing that a 150 year-old tool of an antiquated system that was adopted without voter approval is not only financially burdensome, but also openly discriminates against its citizens.
So while the State Supreme Court is engaging in a lively discussion about how a 150 year-old legal trick used to exclude prospective jurors based on race, there does not appear to be a focus or concern for the psychological trauma that may be impacting the prospective jurors.
Just imagine the African-American woman who receives the “jury summons” and is ordered to fulfill her responsibility as a law abiding, tax paying citizen to report for jury duty. Let’s imagine that this woman is proud to perform her duty and fulfill her oath to her country. Let’s also imagine that this woman is forced to interrupt her daily schedule or even forsake possible travel plans.
She gets up early in the morning; goes downtown to the courthouse, sitting in a bullpen with other strangers just like herself. She may sit there in this bullpen for several days without being called. Finally when she is called to participate in what is known as voir dire – the questioning by attorneys to determine the competency of a juror, she, unlike the others is asked additional questions about her views on the role of race in the justice system. She is asked race questions because unlike the other prospective jurors, she shares the racial or ethnic identity with the defendant or alleged victim.
She may be shocked, surprised, frustrated and humiliated when she is told by the trial judge that she is being excused from jury duty for no specific reason (peremptory challenge) and told to return to the jury pool where it is possible that she can be subjected to the same humiliation again if the defendant or alleged victim in the next trial is also African-American.
Let’s assume that this woman spends the entire week sitting in the bullpen without being called for another case. How is she going to respond to this humiliation? How will this humiliation impact her self-esteem? Her self-concept? What does she tell her family? Her coworkers?
How is she to respond the next time she receives this “wonderful invitation” (i.e. jury summons) giving her another opportunity to be humiliated again? Betrayed, perhaps?
If summoned again, perhaps she could act differently to try to fit the “subjective criteria” in order to be selected for jury trial. Whoa! What criteria? Well that would depend on the whim or stereotypes and racial bias of the individual that day who is making the decision of whether to assert one of the peremptory challenges.
Let’s assume that in the previous jury selection in which the peremptory challenge was used, this black woman has already utilized the strategy of “self racial profiling” to make herself appear acceptable for selection on jury. Within this strategy the black woman paid particular and specific attention to detail of the following factors:
· How to behave
· What to wear or not to wear
· What to say or not say
And yet in doing all of the above, she was voided, rejected, told to go away and indirectly told she is not trustworthy of being impartial in the criminal proceeding of a person she does not know or has never met, simply due to the color of her skin.
Being dismissed, the black woman disappears returning to the jury pool. The legal system with the assistance of the trial judge has served to reinforce her invisibility.
Professor A.J. Franklin of the City University of New York (CUNY) defines invisibility as “an inner struggle with the feelings that one’s talents, abilities, personality, and worth are not valued or recognized because of prejudice and racism.” In support of his thesis, Dr. Franklin cites from Ralph Ellison’s heart crushing 1947 novel, Invisible Man:
I am invisible. I am invisible, understand, simply because people refuse to see me. When they approach me, they see only my surroundings, themselves or figments of their imagination-indeed, everything, and anything, except me.
So how does this woman feel following this experience? It is fair to say that she may feel rejected, anger, betrayed and most importantly, traumatized.
Betrayal trauma can be defined as the violation of implicit and explicit trust. Extensive betrayal is traumatic and the closer the relationship, the greater the degree o betrayal and thus of trauma.
In this situation, the African-American woman, a neutral person seeking only to fulfill her civic responsibility is in facto “placing herself in the hands” of the trial judge as the overseer of the judicial proceeding to protect her from abuse as she is being placed in a “tug of war” game between opposing attorneys.
Whatever belief, faith or trust she may have had in the judicial system evaporated when the trial judge failed in the responsibility to protect the potential juror from abuse. Assuming the judge is White, how does White Privilege factor into the equation. White privilege? What is white privilege?
White privilege refers to the set of societal privileges from which White people generally benefit to a significantly larger degree than ethnic minorities who reside and work within the same social, political or economic spaces. The term denotes both the obvious and less obvious unspoken advantages that White individuals may not recognize they have which distinguishes white privilege from overt bias or prejudice. This would include
· cultural affirmations of one’s own worth;
· greater presumed social status
· freedom to move, buy, work, play, and speak freely
· the perception of one’s own experiences to be normal whereas, others are different or exceptional
Or as Tim Wise puts it:
For those who still can’t grasp the concept of white privilege, or who are looking for some easy-to-understand examples of it, perhaps this list will help.
White privilege is when you can get pregnant at seventeen like Bristol Palin and everyone is quick to insist that your life and that of your family is a personal matter, and that no one has a right to judge you or your parents, because “every family has challenges” even as black and Latino families with similar “challenges” are regularly typified as irresponsible, pathological and arbiters of social decay
White privilege is being able to go to a prestigious prep school, then to Yale and Harvard Business School (George W. Bush), and still be seen as an “average guy,” while being black, going to a prestigious prep school, then Occidental College, then Columbia, and then Harvard Law, makes you “uppity” and a snob who probably looks down on regular folks.
White privilege is being able to graduate near the bottom of your college class (McCain), or graduate with a C average from Yale (W.), and that’s OK, and you’re still cut out to be president, but if you’re black and you graduate near the top of your class from Harvard Law, you can’t be trusted to make good decisions in office.
White privilege allows the honorable members of the Washington State Supreme Court to engage in a stimulating debate as well as intellectual exercise worthy of academic merit and review. However this judicial body blinked at the opportunity to either set new law or establish new rules that would eliminate an antiquated system that is 150 years-old and clearly built for the enjoyment and benefit of the majority culture.
This judicial body, which due to changes demanded of more current times, reflects gender diversity including five female members, including the chief justice. Has the esteemed bench forgotten that there was a time in our history when white women were treated as second-class citizens and were prevented the opportunity to serve on juries?
Justice Gonzalez, the only ethnic minority member of this prestigious body has called for the elimination of a system that excludes qualified persons from jury service because of their race. However he is but one voice and one vote. He cannot do this alone.
Meanwhile, perhaps the African-American female juror will return home feeling humiliated and betrayed. Maybe she will rethink her civic responsibilities the next time she receives a summons “inviting” her to serve on a jury.
Perhaps the Washington State Supreme Court will be willing to answer (and not play dodge ball) why it is difficult to find ethnic minorities to serve on juries. If there is no protection from racial discrimination in something as fundamental as jury service, why should ethnic minorities participate in a process that is constructed in a manner that places them in psychological duress?
The Washington State Supreme Court had the opportunity to provide directives to trial judges, or at the minimum create recommendations for the state bar association or extend a challenge to the State Legislative or office of the Governor.
This supervisory judicial institution had the opportunity to show that it can balance the rights of the accused for a fair trial as well protect the potential juror from abuse. Instead it verbalized its concerns, excused itself from the role of empowerment for change and blinked.
It appears that the title of the newspaper article “State justices seek protections from racial bias in jury selection” was in error. Talk without action is simply talk.
The Seattle Times article provided informed the reader that the “justices expressed concern that race is often a factor –conscious or unconscious”
I would remind the justices that racism delivered whether it is conscious or unconscious, spiced or unsweetened, or delivered in the package of a “peremptory challenge” is still traumatic. Furthermore, I would submit that when it is delivered by the officers of the court, a prosecutor, defense attorney or trial judge, the racism appears legitimized by those who take oaths to uphold the law and therefore can be perceived as a “betrayal of trust.”
The research has identified seven distinct forms of trauma that ethnic minorities may endure on a daily basis. Betrayal trauma due to its nature of vulnerability and exposure in extending violations of implicit and explicit trust has been deemed the most psychologically detrimental.
Regardless of his or her darker complexion, each potential juror deserves protection from the psychological trauma that a peremptory challenge can have on a person trying to honor his or her civic duty.
Significantly, in order to legitimately explore and make judgments about racial bias for potential jurors of color while completely ignoring the potential for racial bias for potential jurors who are White, one would have to incorrectly assume that White jurors are color blind and jurors of color are not. This is White privilege.
The Washington State Supreme Court should stop blinking and take another look.
The Visible Man