What's race and what's not? The question comes up in nearly every aspect of public policy -- and it comes up all the time in voir dire.
In Batson v. Kentucky in 1986, the Supreme Court barred prosecutors from striking jurors because of their race. The Court had high hopes for the decision's impact:
By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice. In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.
Twenty years later, Batson's contribution has been important -- but in daily courtroom life, it often bows to the complex relationship of race and experience. An example is the Seventh Circuit's opinion in U.S. v. McMahan, issued Friday.
"He lives on Chicago's West Side."
The five defendants in McMahan "were part of a long-term, well-established drug business near the corner of Washington and Waller on the west side of Chicago," said the Seventh Circuit's Judge Terence Evans. They were tried before Judge Amy St. Eve, who just completed the Conrad Black trial. The prosecutor struck an African-American juror. The defense challenged the strike on Batson grounds, so the prosecutor was required to state "race-neutral" reasons for the strike. The prosecutor was ready with two reasons, zip code and friends with arrest records:
First and foremost—and, most importantly—he lives on Chicago’s West Side.
It was reported, although we did ask the follow-up question with the Zip Code—and, unfortunately, none of us were able to place that Zip Code—as to whether or not it was the area of Washington and Waller. We still had concerns.
Those concerns were, then, seconded by a comment that was reported to us by Agent Helen Dunne, from some individuals who appear to be here perhaps because they are relatives or friends of the defendants; a comment that was remarked—that she overheard— where they said, “Oh, that’s a good Zip Code.” That gave the government some concerns.
Secondly, he has stated that he has a number of friends who have been arrested; and, while the government recognizes that we did not—or we would have run out of pre-emptories if we had exercised all arrests—it seemed like there were—the numerous nature of these individuals that gave the government concerns.
Not race, but not race-neutral
That was good enough for the Seventh Circuit:
We agree with the district judge that the prosecution offered race-neutral reasons for the strike, in fact, quite convincing explanations for the strike. The defense has not shown that the reasons were pretextual. That the reasons are not pretextual is supported as well by the fact that three black jurors were empaneled as the jury selection process continued.
It's a common analysis -- but it has an odd ring of the unsaid. What isn't discussed, either in the opinion or in the trial court colloquy as the opinion describes it, is that while zip codes and arrested friends may be race-neutral under Batson's jurisprudence, they're not race-neutral in any practical sense.
In Chicago as in many cities, race and zip code are essentially twins. A 2002 analysis of Chicago census data found that "African Americans in Chicago continue[ ] to live in extreme isolation from members of other racial/ethnic groups." Arrest rates in turn are higher in these areas for many reasons, so residents there would know more people who have been arrested.
I'm not saying these factors don't affect how jurors hear cases. To the contrary, they're critical; our experiences shape our views. As we've seen, for example, people who have been themselves incarcerated, or know someone who has, have less confidence in and support for social controls -- like police work -- than other people do. It makes sense that a prosecutor would prefer a juror from a different zip code, with different friends. But these and other facts of many black jurors' lives are undeniably connected with race. So we watch Batson thread an unsteady path through race and experience, day by day and case by case.
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Notes:
1. The Seventh Circuit's Judge Evans, a former state and then federal trial judge here in Milwaukee, had a suggestion for voir dire management that's worth noting separately:
The jury selection process used [by Judge St. Eve] requires the attorneys to exercise peremptory challenges before they know what other problems might show up in the remainder of the venire. Although we are not saying that the process is legally infirm, it would seem to us to place the attorneys in an unnecessarily difficult position, which could be eliminated by the exercise of peremptory strikes after all the jurors were questioned.
2. The defendants' friends whispering "that's a good zip code" in the back of the courtroom didn't help their cause. Note for next trial: remind gallery to keep voices down.
3. Many thanks to Blawgletter's Barry Barnett for his kind words about this blog in today's great edition of Blawg Review. Barry's take on this week's law blogs is all about humor (although my post, darn it, wasn't all that funny) -- which makes sense, because Blawgletter is itself one of the funniest things out there, in addition to its substantive merit. Look at this one.
(Photo by Photocapy at http://www.flickr.com/photos/photocapy/301093262/; license details there.)
