Racism and The Racial Bias of Juries in Criminal Trials

Dealing with Racial Bias in Juries

by Bob Vogel
Trial Attorney
Knoxville, TN
rlvogel@robertvogellaw.com
Graduate, Trial Lawyers College

Imagine being the only dog in a courtroom full of cats. Would you expect to get a fair shake?

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There, in the audience, as you walk in and take a seat at the defense table, are all the people who might sit on your jury. While they are different ages, different body types, different in hair style, different in gender, they all have one thing in common: they are all white. They sit scattered among the pews of the courtroom. Some in pairs, some in clumps of three or four. Some by themselves. They look serious. They don't smile. They won't look you in the eye. You know they are wondering what you did.

You look over at the next table. There sits the prosecutor. He's about six feet tall, slender and looks like he might work out. He's about fifty, maybe a little older. He wears an off the rack suit that fits him well. He has short, brown hair with a little grey mixed in and brown eyes. He is white. He looks a lot like some of the jurors. He nods toward them from time to time when they catch his eye. They are starting to look at him like he is in charge, like he has power in the courtroom.

Next to him is his assistant. She is tall and attractive. She has on a knee length, black dress, some modest jewelry to compliment her modest haircut and carefully applied makeup. She is pretty, but she has a stern look on her face today: her lips are pinched together and there are some age wrinkles showing around the corner of her mouth and around her narrowed eyes. When she looks at you, her face is hard, without expression. She knows what you did. At least, she thinks she does. But, when she turns toward the jury, she smiles a brilliant, engaging smile. All of the pictures and documents that they prosecutor is going to use to put you in jail sit in neat piles in front of her, ready to be passed to her boss at just the right time in the trial.

Your attorney walks in and sits down next to you. You've met with him a lot. He knows the whole story of your case. He knows you didn't do it - that you maintain your innocence. He's talked to the prosecutor about the case. He's shown you their evidence. The prosecutor wants you to plead to the charge with a minimum amount of jail time, but consecutive to what you're serving now. It will add about a year to your time.

You rejected that offer, because you know you didn't do it. You caught the look on your attorney's face when you did that. And it made you worry a little. Still, you have confidence in him. He wore a good suit, today. He has all his papers ready. He has an assistant with him, too, but she looks a little nervous. He has a nice face and he smiles at you as he sits down. But, still, you notice, he has the same kind of face that the jury and the prosecutor have - all white.

You look around the courtroom. You see several men and women in uniform. Some nod at you. Some look around the courtroom and won't catch your eye. There is a woman fussing with a computer and some flat, table top microphones: the court reporter. She seems preoccupied. Next to the judges bench, the clerk sits in front of a computer terminal. She is typing and looking at documents. They are trying to get some paperwork done before your trial starts. Trials take a long time and interfere with paperwork.

The Judge walks out. "All rise," one of the officers says. "Hear ye, hear ye, hear ye, the Criminal Court for this county is now in session, all those with business before this Court approach and ye shall be heard. God save this honorable Court, the State of here we are and the United States of America." Then he leads everyone in the pledge of allegiance. You glance at your attorney, and you follow his lead, placing your hand on your heart and reciting the pledge. You're maybe a quarter of a beat behind because you haven't had to recite it since your were in grade school. You hope nobody else notices. They all seem to know it perfectly.

Your case is called. The Judge brings a group of people forward and sits them in the jury box. He asks them a bunch of questions and tells them a bunch of stuff. They stare back at him with blank faces. They nod when it seems appropriate. The smile at his jokes even though you don't understand them and you think they probably don't either. But, he is the judge.

Your attorney nods and makes some notes on a pad of paper. You see his assistant doing the same. Across the room, the prosecutor and his helper make notes and are looking at a list of names.

The judge turns the jury over to the attorneys. First, the prosecutor goes. He talks about gangs and gang violence, like you created it, and hopes the jury won't be offended by it. He talks about the fact that the crime happened in prison, but that the jury shouldn't think about that. They are all looking at you like they would look at their shoe after stepping in dog poop. You're starting to wonder why you didn't take the deal.

"Good morning," your attorney, Bob says, "I've been worried about something ever since I learned about this case. After listening to the prosecutor, whose job it is to put Mr. Smith away for as long as he possibly can, I'm just downright scared. I've got a knot in my stomach.

"Take a look at this," Bob says. He walks over to his computer and hits a couple of buttons. A cartoon pops up on the overhead.

"Anybody here want to trade places with Fido?" Bob says. You notice the prosecutor starting to stand up. But, then he decides against it.

"I wonder what it would be like to be in Fido's place? How do you think it would feel? Mr. A? How do you think it would feel to be in Fido's spot?"

Mr. A is not sure how to respond. He shrugs his shoulders, "not too good, I guess."

"I think you're right, Mr. A, not too good. Play along with me, why wouldn't it feel too good?"

"He ain't gonna get too good a deal from them cats," Mr. A says.

"No, he's not, is he?"

"Uhn, uh," Mr. A, says.

You notice that some of the jurors are smiling a little at the cartoon. Bob moves onto someone else.

"Ms. C, I notice you smiling, share with us if you would?"

"It's just funny. I mean, cat's hate dogs, but, I mean, just seeing the animals acting like people, you know, that's funny. But, I kinda feel sorry for the dog."

"Yeah, me too, why do you feel bad for the dog?"

"Well, there's just no way he'll get a fair trial," she says.

"Tell me why you feel that way," Bob says.

"Well..." Ms. C stops. She can't seem to put her thoughts into words.

You notice that an older lady down on the front row is sitting straight up in her seat, trying to get Bob's attention.

"Ms. C, do you want to think about if for a second? I notice Ms. D here really wants to say something?"

"Sure." She is obviously relieved. She looks over at Ms. D. In fact, you notice all the jurors are looking at her, so is the judge and so is the prosecutor and his helper. There are extra jurors behind them in the pews. They are all listening, too.

"Ms. D?" Bob says, motioning toward her, "what are your feelings about this?"

"Well, I get what you're trying to do. I mean, I guess its easier to talk about cats and dogs than people. But, I think I'm a little offended that you feel like we won't be fair with your client, like we'd treat him like a bunch of cats would treat a dog if they got a chance. I'm not too happy about that."

You see the prosecutor smile to himself and look at his assistant. They share a meaningful glance and you see her make a mark on the paper.

"Thank you for sharing, Ms. D," Bob says, as he takes a tiny step forward in her direction. "I'm really glad you shared that with me. So, do you feel that I've misjudged you?"

"Yes. I think you've underestimated us."

"How so?"

"Well, you don't give us enough credit. I mean, I know your client is black. But that doesn't mean I can't be fair to him. Does it?"

"Of course not, and I am so happy to hear you say that. I'm so glad you called me out on this. You are definitely the kind of person I want on this jury. I'm hoping you want to be here?"

"Well, yes," Ms. D says, with a smile of pride on her face.

"Thank you, I'm glad. You know, the reason I brought this up is because I worry about this in me. I worry that there are some racist thoughts deep down inside me," Bob says.

You start to squirm a little. Your lawyer is a racist? Is that what he's saying. You really should have taken that deal. You look over at the prosecutor to see if you connect with him. Maybe he'll give you a break.

The prosecutor is staring at Bob. He seems unsure. He has one eyebrow raised in a question mark.

"I grew up in a small suburban town in New Jersey," Bob continues, "there were two black families in town. One father was the mayor and an Harvard educated college professor. The other was a successful business man - an engineer. Their kids were in high school with me. Aside from the color of their skin, they were just like me. They dressed like me. They acted like me. They took the same classes and had the same interests as me. No difference. We didn't really notice the color of their skin. Although, growing up in the seventies, there was no interracial dating. So, while we all socialized and did things together, they never had dates with our peers.

"Anyway, I lived about 15 miles from Newark and about 25 miles from Harlem and the Bronx. In the sixties and early seventies, there were a bunch of riots there. People burned down buildings. Most of our fathers were blue collar businessmen who owned their own businesses and worked hard in their own businesses. I remember the talk about "them and they". If they come here, if they march here, we'll be ready.

"By "ready," that meant that everyone had a loaded shotgun near an upstairs window. Our fathers were ready to barricade the streets leading into town and put up defenses. "They" were not going to burn down our houses or loot our stores. We weren't going to let them get bused in here, either.

"As I got older, there were always news stories about them. About how heroin was rampaging through the ghetto. How they were stealing, committing crimes, stabbing each other, shooting each other, overdosing, it was like a war. In the eighties it was cocaine and in the nineties it was crack. They committed car jackings, rapes, murder. Newark was the car jacking capital of the world. The Newark police told white people from the suburbs not to stop at stop lights or stop signs after dark.

"It was always them. Always the black drug addicts and dealers. It was the black guy with the knife or the gun or the dope. It was the black guy who murdered and raped. Then came the gangs. In the 90s the gangs started to grow and rage through the streets of Newark and New York. They went "wilding". They tore up stores, ripped people off, mugged people, raped women joggers and beat them to death or into a coma. They dealt in crack cocaine. They were evil. They were crazy.

"I know that "them" is not a real group. I get that. I know that people are individuals. But still, deep down in here, down in places I try to hide, in places I don't like to go, I'm scared of them."

Bob stops and looks over at you.

"I'm scared of him, of my client, of Mr. Smith," Bob says. "I'll bet Mr. Smith isn't too happy to hear that, are you?"

"No, sir," you say, but you have a whole lot of other words on your mind. Your emotions cry out clearly through your tone and there is nervous laughter from the jury. The prosecutor starts to his feet again. Bob waves him down, as if to say he won't ask you any more questions. The prosecutor sits down, ready to object if he needs to.

"I'm scared, deep down in my heart, of black criminals, black men who deal drugs, who are in gangs. I'm scared of Mr. Smith. And, as his attorney, I'm scared some of you might feel that way, too. Does anyone feel like I do?"

Inside, you start to relax. You see where he's going. You see a few of the jurors nodding. Ms. D is almost in tears. Mr. A is leaning forward. They're getting ready to talk about this. You can tell. They're interested. You look over and see the frustrated face of the prosecutor. He realized too late where this was going.

The discussion proceeds and the jurors talk through the feelings of fear about people who are different. About black men in prison. About black drug dealers. Black street gangs and gang violence in prison. They start to help Bob feel better about the case. They start to suggest how a juror ought to act, what he ought to think about. They start to talk about you as a person, about how you could be different. They talk about how they feel.

Once they finish the racial topic, they move through some other discussions. The jury is wound up. They are talking. Sometimes, they are talking to each other. Sometimes, with Bob. And, they have all stopped raising their hands or looking scared. They've come together, just like Bob told you they would.

"If you trust them to," he said, "the jury will save you."

"The jury will give you justice."

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We have to acknowledge what is already there. People are scared to talk about racism. It's politically incorrect. But, when I have a client who is a black man alleged to be a member of a gang, violent or a drug dealer, maybe even someone who has been in prison, it is imperative to get the jury talking about what lurks deep down inside of all of us: our fear of "them." 

Gang violence, drugs, guns, and all that are primarily associated with black men and Hispanic men. We are doing our client's a disservice when we ignore the obvious. Our juror's see this every day on television - whether it is in the news or a stereotypical character in a movie or TV drama.

In the end, if you get your jury to talk with you about it, they will begin to realize that they can see your client as a person, as a human being. They will talk about him individually and distinguish him from the group of "them" that scares all of us.

If you ignore this, you do so at the peril of your client. This is his only shot. How can you be sure he has a fair jury if you don't uncover this bit of poison. If you don't it can kill your case. You must extract it, isolate it, neutralize it. You must slice open that snake bite and suck that poison out. There are many ways to approach this, I've just walked through one. It works, but there are other ways. Find what works for you.

And, most of all - trust your jury to be people. Be your real feelings to them - trust them with that - trust them with you fears and concerns about the trial. They will trust you and they will talk with you about it - and, they will be their real feelings to you.  What more could you ask of any juror?

It is for good for your client to think about these things. It is important to the cause of justice. It is an imperative in order to obtain a fair trial. Your fears are the same ones the jurors will feel. Share with them and they will help you overcome them and show you how to deal with them.

Feel free to contact me to discuss this and other trial issues more.

Bob Vogel
Trial Attorney
Knoxville, TN
rlvogel@robertvogellaw.com
865-357-1949