Jury Selection Is Broken and Here’s How to Fix It

The Theodore Roosevelt Federal Courthouse in Brooklyn, New York.
The Theodore Roosevelt Federal Courthouse in Brooklyn, New York.
Beyond My Ken/Wikimedia Commons

On Aug. 19, 1991, a Jewish man lost control of his car and hit two black children in Crown Heights, Brooklyn. A crowd gathered, outraged by the accident. Someone attacked the driver. An ambulance from the nearby Hasidic community arrived shortly after. Police directed paramedics to whisk away the driver, but not the two children. That night, 7-year-old Gavin Cato died.

Around midnight, out for revenge, about 10 black people in the neighborhood chased down and attacked a random Hasidic man, Yankel Rosenbaum. Someone stabbed him, and he died a few hours later.

Sixteen-year-old Lemrick Nelson Jr. was arrested and charged with Rosenbaum’s murder. But prosecutors bungled the case, and Nelson was acquitted. The verdict enraged many in the Orthodox Jewish community, and hundreds protested the night it came down. Many noted that at least six of the reported jurors were black, and none were Jewish. Bricks were thrown through a window of a black juror’s home.

In 1994, federal prosecutors took up the case. More evidence had come out indicating that Nelson actually had stabbed Rosenbaum. Prosecutors couldn’t prosecute him again for the exact same crime, so they found a new angle, accusing Nelson of violating Rosenbaum’s civil rights.

Judge David Trager knew he had an explosive case on his hands, and he had a plan to stop it from blowing up. When the jury was selected, he made a secret deal with the prosecution and defense to get three black and two Jewish jurors, breaking the rules for what is supposed to be a randomized, color-blind process.

In practice, Trager’s deal was clumsy. He was hamstrung by a jury pool with almost no Jewish people. To achieve the balance he sought, Trager had to insist on impaneling a Jewish man who said he doubted he could give Nelson a fair trial.

But in theory and in spirit, Trager’s commitment to representation was a righteous departure from the broken rules of jury selection. Unfortunately, decades after the judge’s gambit, American juries remain notoriously unrepresentative of the country’s population. Jurors skew old, white, and financially comfortable. All-white juries aren’t uncommon. These demographics make jury verdicts less legitimate in the eyes of many Americans. Research suggests that homogenous juries are also measurably worse at figuring out whether someone is innocent or guilty.

Research last year from the Wake Forest University School of Law shows North Carolina’s prosecutors methodically keep black people off juries. The question is once again headed to the Supreme Court, which recently agreed to hear the case of Curtis Flowers, a Mississippi man who was tried six times for the same crime by a district attorney who has a history of striking black jurors at a rate 4.4 times higher than white jurors. In his latest trial in 2010, Flowers was convicted of murder and sentenced to death by 11 white jurors and one black one. The court will consider whether District Attorney Doug Evans’ alleged discrimination in jury selection violates the Constitution. But the new scrutiny of the bias at the heart of the justice system is likely to leave out the most obvious solution.

Faced with a case with a black defendant and a Jewish victim, Trager decided to make sure there were both Jewish and black people on the jury. He broke the law, but a long line of jurisprudence supports his commonsense intervention. For centuries, English law gave foreigners the right to a “jury of the half tongue”—half foreign jurors—to guard against local prejudice. The idea has history in the U.S. too. After the Civil War, a court deliberately selected six black and six white jurors for Jefferson Davis’ treason trial, before the government decided against prosecuting.

Today, the country’s approach to jury diversity is entirely backward: banning discrimination instead of requiring equitable representation. This is workable in theory and almost useless in practice.

In the seminal jury selection case from 1986, Batson v. Kentucky, the Supreme Court ruled that prosecutors can’t “strike” a potential juror from the pool without a nondiscriminatory reason. Under the judgment, if the defense suspects the prosecution “struck” someone because they’re black, for example, they can raise a “Batson challenge,” forcing the prosecutors to justify themselves.

By 1987, though, the Philadelphia District Attorney’s Office had a new training video instructing prosecutors on how to get around the Batson ruling: Ask more questions of the black people in the jury pool in order to dig up constitutionally acceptable excuses to give them the boot.

“It gives you more ammunition to make an articulable reason as to why you are striking them,” prosecutor Jack McMahon explained in the video. “You don’t want those people on your jury.”

Batson is still good law today—in 2016, the Supreme Court reaffirmed the nearly toothless precedent in Foster v. Chatman.

Still, there are many humble reforms that might make juries look more like the country’s population. Jurors are typically selected from databases that systematically underrepresent black people. Juror pay is reliably lower than the minimum wage, making it unaffordable for many Americans to sit in judgment of their peers. Changing these details would probably blunt discrimination. But trusting in theoretical equality—instead of mandating diversity in the jury box—is ahistorical and naïve, argued Harold McDougall in the Yale Law Journal back in 1970, in “The Case for Black Juries.”

“As long as opportunity and not actuality is the guideline, only the limits of the white majority’s ingenuity will serve as a restraint on its ability to keep blacks from jury service,” McDougall wrote. Time has proved him right.

Calling for affirmative action in jury selection leads to new questions. If a jury should include members of the population groups of both the defendant and the victim, how many is enough? More fundamentally, what groups ought to be recognized? Should there be representation along axes of disability, language, income, religion? Should courts embrace the deepening rabbit hole of jury science? If research indicates a given juror has a 60 percent chance of voting to convict, should they be offset by a 40 percenter?

If and when the justice system stops pretending to not see color, these will all be answerable questions. Social psychology can help find the line between tokenism and meaningful representation. Politics will decide which groups get recognized—and whether we need more than 12 jurors to properly represent them. Big data stands ready to demolish our antiquated ideas about impartiality.

Trager’s jury convicted Lemrick Nelson Jr. But his lawyers appealed, and a higher court overturned the conviction. The no-longer-secret deal was ruled unconstitutionally “race-conscious,” and American justice replanted its head in the sand, where it remains today. In a world where systemic racism is omnipresent but there isn’t a single person in the country with a “racist bone” in his body, here’s hoping that changes soon.