Experts Weigh In
For those who doubt the significance of a jury’s racial composition, witness the rising demand for trial consulting services.
A growing range of self-identified experts — some of them experienced trial lawyers and prosecutors, others psychologists, sociologists, anthropologists and former jurors in high-profile cases — are offering up their services to help lawyers identify jurors most likely to convict or acquit defendants facing a range of very serious charges.
That work sits at the center of a big and booming business. Trial consultants generated about $153 million in fees last year, according to an analysis generated by IBISWorld, a Los Angeles-based industry research firm. That’s up 15 percent from $132.5 million in 2000.
Indeed, jury consultants know what some Americans do not like to admit: Bias exists and influences even our most important decisions, our understanding of risk, danger, suspicion and even what is legal and reasonable.
In 2010, the Equal Justice Initiative, an Alabama-based nonprofit legal organization that assists poor, incarcerated and condemned individuals in the South, issued a report detailing just how often all-white juries hear some of the country’s most serious and sensational cases, how this happens and what effect this long-running phenomenon has on justice.
The study examined jury-selection procedures in eight states, including Florida. There, the Initiative found counties where prosecutors managed to exclude nearly 80 percent of African Americans qualified to serve on a jury, primarily relying on a series of tests that, on their face, seem race-neutral but are almost certainly designed to create all-white or at least mostly white juries. In some places, prosecutors even received special training on just how to accomplish this sleight of hand. In doing so, blacks were excluded from juries for being too old at age 48 or too young at age 28, single, married, separated, because they wore glasses, “appeared to have low intelligence,” attended or had relatives who attended historically black colleges, because of the way they walked, chewed their gum or because they lived in a mostly black community.
In 1986, the U.S. Supreme Court firmly established a ban on any efforts lawyers may make to exclude minorities from juries, requiring lawyers to provide reasons for removing black citizens during the jury-selection process. But, all-white juries remain a common occurrence, said Brian Stevenson, the Equal Justice Initiative’s executive director.
As recently as the 1990s, every single man sentenced to death in Alabama was convicted by an all-white jury, Stevenson said.
A Continual Problem
And while some progress has been made, there have also been serious setbacks.
In June, North Carolina’s Republican-controlled legislature repealed a law that gave individuals on death row the right to raise an appeal based on the possibility that racial bias, including all-white juries, played a role in their conviction and the sentence handed down. In the four years that the law, known as the Racial Justice Act, remained on the books in North Carolina, four black men saw their death sentences commuted.