Written by By Marc Lane, CNN
It’s Friday afternoon and, under trial for slaying a colleague, Alaav Arbery, clad in his prison attire, is ushered into a quiet municipal courtroom. Looking more like one of the Unabomber’s convicted accomplices than a defendant set to appear in a local courtroom, Arbery stares out the courtroom window like a child entering his own mock trial. A statement is made: “That’s our jury.”
Throughout the hearing, his trial team — led by local prosecutor Cyrus Garza Jr., one of two black prosecutors in Parker County, Texas — confront a problem. There are two black jurors on the court’s 20-member jury — one’s white, one’s black. And for better or worse, the process of selecting a jury in criminal cases is far from colorblind. While the U.S. Supreme Court in 1972 mandated jury inclusion, the road to becoming a juror for at least some jurisdictions has been fraught with obstacles for certain social groups.
In the U.S., where nearly half of the adult population can attest to a family member or personal friend being denied jury service because of their race, less than two percent of jury rolls have been black for the past five years, according to the American Civil Liberties Union. During this period, an additional four percent of all black jurors were dropped from the rolls for reasons unknown.
What’s more, although the number of black jurors in rural cases has steadily increased (from 6.6 percent in 1965 to 9.6 percent in 2016), black jurors make up just seven percent of the jury rolls in these cases.
Many of these challenges in the jury selection process only serve to call attention to the disenfranchisement of poor African Americans, a topic which has been increasingly discussed in the public sphere since the death of Supreme Court Justice Antonin Scalia.
The jury pool problem
“It’s critically important for people to understand these types of societal challenges,” says Traci Sharp, a lawyer and a criminal defense attorney working in Houston, Texas. She points to a 2013 case in Galveston County, Texas, in which white jurors were excluded from their jury pool due to addresses within a mile of race-related neighborhood.
“As we know, African Americans and Latinos disproportionately live in low-income neighborhoods. This essentially excludes a disproportionate number of African Americans and Latinos who might be unable to afford transportation out of their neighborhoods or participate in the jury pool,” Sharp says.
As for black people in rural Texas, Sharp says, “getting a black juror in rural Parker County is not like getting a black juror in Houston.” The possibility of getting one in a place like La Marque, Texas — approximately nine miles from Arbery’s Newton County jail — is just as remote.
The effect of discrimination
If this were only about the ability of jurors of color to be selected, the issue of race in the jury pool is a non-issue. But the issue of bias extends far beyond the exercise of racial preferences. The exclusion of potential black jurors — and the consequent summoning of all other jurors of color — marks the imposition of systemic bias over a fair and balanced jury.
“The history of court discrimination against African Americans … dates to the South and the civil rights movement of the 1960s,” Sharp says. “And today, just like in the civil rights era, the importance of non-discrimination in jury selection makes these blind juries important to the defense bar.”
That point was powerfully brought home in light of the fact that the Oklahoma City bombing trial court, in the form of the Supreme Court’s principal rule in Brown v. Board of Education, rejected the right of black jurors to be summoned for the death penalty. The policy was in place for approximately 15 years and only lasted for jurors in northern states. By contrast, the jury summonses for Oklahoma City jurors were distributed exclusively to southern states.
The effect of such practices on the fairness of the trial is evident, but it is even more clear that it is the injustice that the defendant’s dream was seeking to overcome. In the words of the French artist who helped provide the jurors with their final dress code and inarguably the iconic quote of the day, “The poorest member of my family was my artistic inspiration.”