You can get pretty good at voir dire and still feel at sea when the issue is race.
Last spring in Milwaukee, three white police officers were tried for the beating of a biracial man, Frank Jude Jr. The evidence was significant. "Civilian witnesses and on-duty officers testified they saw Jude repeatedly being hit and kicked in the head, groin and the rest of his body," says the Milwaukee Journal/Sentinel, and one of the officers admitted he repeatedly hit Jude.
The jurors were all white. The officers were acquitted. As thousands of people marched in protest outside, several colleagues asked me about juries and race. Are people really still that prejudiced? Do white jurors ignore evidence because they want to help white defendants? "We did our best," one juror said. Was he lying?
Go to the source: focus on experience, not bias
There could hardly be a more complicated topic than race in America. Please understand that I'm not trying to Get Race Right in these few paragraphs; in fact, I know I'll probably get parts of it wrong. But most lawyers in voir dire can't master the topic either, and they still need approaches that will help them explore this area in a meaningful way.
For them, then, here's a useful concept that many lawyers miss. With rare exceptions, bias itself doesn't drive jurors' decisions. Instead, jurors' decisions and jurors' biases are shaped by the same force: their life experiences.
Most people want to believe they are open and fair. (A 2006 Newsweek poll found that 93% of people said they would vote for a black presidential candidate of their own party, but only 55% thought that the rest of the country was ready.) What separates people isn't their sincerity, it's their experience. A New York Times poll found
a sharp disparity between blacks and whites over how the police have affected their sense of personal safety. A third of blacks said they had been in situations where they feared a police officer, while only 11 percent of whites said they felt that way. In contrast, 62 percent of whites said they had been in situations where they felt safer in the presence of a police officer, while 57 percent of blacks said they never felt that way.
In a 2007 Kaiser/Washington Post poll, more than a third of black respondents reported they personally had been unfairly stopped by the police because of their race; you can roughly deduce how many believe it has happened to someone they know. White people, on the other hand, tend to learn about black people's experiences from what they hear or read. In the same Post poll, fully 45% of white Americans said their opinions about blacks were based on something other than personal experience.
Not surprising, then, that "nearly 9 out of 10 black residents questioned in the [New York Times] survey said they thought the police often engaged in brutality against blacks, and almost two-thirds said police brutality against members of minority groups is widespread." Among whites, only a third and a quarter, respectively, felt that way.
Experience makes jurors experts
All this makes the Frank Jude verdict easier for me to understand. To black jurors, police violence is a familiar truth; to white jurors, it's often a story they have heard. A diverse jury would have been more likely to convict not because white jurors are racist, but because black jurors would have brought their life experience -- their expertise -- into the room, helping the whole group to make confident inferences where the all-white jury found evidentiary gaps.
We can think of our task in voir dire, then, in cases where race is an issue, as a familiar one, not a whole new challenge. We just keep asking about experiences. We want to know the same things we want to know in any other trial: what is it about the evidence that will resonate with what has already happened in this juror's life?
Don't forget the group dynamic
Finally, as always, remember that the jury is more than the individual jurors; it's a separate, functioning entity. A recent study confirms that diverse juries exchange more information than all-white juries -- and fascinatingly, it suggests that diversity on the jury may work even more subtly as well. The study found that individual white jurors on diverse juries cited more facts, made fewer errors, and were more ready to discuss racism than white jurors on all-white juries. In addition, whites on diverse juries were more lenient toward black defendants even before they started talking. That is, the very presence of black jurors seemed to alter the response of whites in the group.
