What 'jury of peers'?

In Montgomery County PA, It’s Often a Jury of White People

I just had the experience of sitting on a jury in a criminal trial in the County Courthouse of Montgomery County, PA, a sprawling urban/suburban/rural region just north and west of Philadelphia.

The first indication that something was amiss was when I entered the jury assembly room at 8:15 am on Monday. There were some 230 people there who had returned their jury questionnaires saying they met the basic qualifications to be jurors (US citizen, over 18, no felony conviction, etc.). But looking over the crowd of seated potential jurors, I could immediately see two problems: Most of us looked on the older side — a lot of gray hair and not a lot of younger people — and hardly anyone had darker skin.

Across the country the pool of people called to be potential jurors tends to be heavily skewed towards whites, with people of color a rarity.

With so many people crowded together it was hard to get a count, but I had a better opportunity when, an hour later, I was called up with 49 other people to go to Courtroom C as a group to be considered for the selection of 12 jurors and two alternate jurors for a trial on what turned out to be a road-rage assault case.

There in the ornate courtroom I had time to look over the whole assembled group, where I counted 47 white people and three blacks ( a man and two women). I didn’t see anyone who looked obviously Latino, though there may have been some lighter-skinned Latinos. There were a few people who also appeared to be Asian.

The troubling thing is that Montgomery County is 10% Black, 8% Asian and 5% Latino, according to census statistics as of 2017. Plenty of minority folks live in the county, but they’re not showing up in the prospective jury pool or on juries. Between a quarter and a fifth of our prospective juror pool  should have been non-white.

When our panel was selected, and  were asked to go take our places in the jury box, we found that we were 14 white people (12 jurors and two alternates). No surprise there. With so few representatives of other races in among the 50 assembled potential jurors, it would have been surprising if any of the few minority persons in the group had made it onto the panel.  For one thing, in a closed door session the judge, prosecutor and defense attorney culled out a lot of the pool. Then they passed the remaining list of potential jurors back and forth horse-trading as they pared away the rest (a process conducted outside of public hearing and unrecorded by the court stenographer, with no reasons for removal being given) and settled on us.

As a group of white people we who ended up being selected we may have been fairly diverse, I think, in terms of male/female, occupations, education level, and probably even political views, although probably we were, collectively at least, of a higher family income level than the average for the whole county. In any case we were certainly not reflective of the racial/ethnic diversity of the county we live in.

That became immediately clear when I walked out during a lunch break on the first day of our trial and found myself wandering around a fairly run-down-looking neighborhood looking for a lunch joint in the downtown part of Norristown, one of the larger cities in Montgomery County. It was an area that was largely home to black and Latino residents.  The lawyers walking around in their suits were for the most part white, but clearly didn’t live nearby. The irony of our white jury in a courtroom in that neighborhood was like a slap in the fact.

It turns out this is a common defect in the US justice system, not just in my county, but across most of Pennsylvania, and, with few exceptions, across the entire nation.

In some states, particularly in the Southeast, other steps are taken to further reduce the chance of blacks getting onto juries, much like the steps taken also to keep blacks from registering to vote or to get to a polling station. One is to go beyond just eliminating potential jurors who report that they have a felony conviction, to also bar those with misdemeanor records or, sometimes, even traffic violations. Even the felony bar to jury impanelment is objectively racist, since white people, who tend to be economically better off, can more often hire an attorney when they get charged with a felony and are more able to get the charges dropped or to get convicted of a lesser charge like a misdemeanor.

Black people, and also Latinos, as the abysmally high percentage of people of color in the prison populations of federal, state and county jails prove, tend to be placed on a conveyor belt to jail or prison and come out, if they ever get out, with a felony record that in most states prevents them — often for life — from voting, from serving on juries, and even from getting any kind of decent-paying job.

But let’s just focus on the jury thing. How can it be claimed that Americans have a Constitutional right to a trial by a “jury of their peers” if peers of minority defendants are systematically kept off of jury panels?

In the case I sat for, the defendant and his victim, who had suffered a badly broken jaw, were both white, so some people might argue they didn’t suffer from the lack of any jurors of color, but that’s not really true. Having a jury of one’s peers doesn’t mean a jury of your same race, but a jury of your community, reflecting that community in all its diversity. If your community is multi-racial and includes people of all economic classes, your jury should reflect that diversity.

Think about it. We jurors struggled mightily to reach a fair and honest verdict in this case (we unanimously rejected the DA’s highest charge of “Aggravated Assault,” a serious felony that requires a finding that the assailant “intended” or “knew” he his punch could cause a life-threatening or serious injury with long-term consequences, which most of us felt was a case of overcharging by the DA, in favor of Simple Assault, a first-class misdemeanor). There were two members of our panel who were initially arguing for conviction on the felony assault charge, but we others managed to convince them that the evidence didn’t support that severe a charge, which required intent to cause life-threatening or permanent injury, or reckless disregard for human life.

My point is, who knows how a minority person on our panel, a person whose life experience may have included knowing people who had been assault victims, or alternatively who knew more directly from friends and family, or personal experience, how unreliable police testimony for the prosecution can be, might have looked at this case? Such a person might have looked at the arresting officer’s waiting 15 days to seek to obtain a private company’s video surveillance record of the incident (by which time the record had been erased), and the 47-delay in charging the defendant, seen evidence of a corrupted prosecution, and refused to convict on wither felony or simple assault. Our jury saw instead a young officer’s honest mistake and felt that the evidence of guilt on the assault charge as being overwhelming and beyond a reasonable doubt.

We’ll never know, because  there were no people of color on our panel.

Things used to be even worse in Montgomery County only a few years back.

MontCo, and many other counties in Pennsylvania, at that time actually had a potential juror questionnaire that asked not “Have you been convicted of a felony?” (an instant disqualifier), but instead, “Have you ever been convicted of a crime other than a traffic offense?”  When I was first called to a jury pool, I answered yes to that question, explaining in the comment section that it was a 1967 conviction for trespass at the Pentagon, a misdemeanor for which I was found guilty, sentenced to a suspended sentence of five days in federal prison, and fined $25.00. For that honest response I was removed from the jury pool!

That questionnaire, which surely was improperly, but deliberately, removing a lot of young black men from jury duty given the police propensity for busting young black men and charging them, where they tend to give warnings to young white guys, togetherwith the greater probability that arrested young white guys will have the financial ability to hire attorneys to get them off with a lesser charge or no charge, has happily been changed more recently to ask only about felony convictions. Though even that culling question should also be seen as problematic:  Why should someone be barred from jury duty (or from voting) if he or she has served their time?

The real problem now, and I believe it is a national problem, is that MontCo uses only motor vehicle department and voter registration records to develop its list of potential jurors to call for trials. And if you think about it, poorer urban dwellers, a disproportionate number of whom are black and Latino, don’t own cars or have drivers’ licenses, and for whatever reason don’t register to vote as often as white citizens. The same is true for young people in general of all races. The evidence is that they do not register to vote in anywhere near the percentages of older age cohorts. That explains both the almost total absence of jurors of color, and the paucity of younger jurors in the jury pools at the Montgomery County Courthouse.

(The judge in our case actually joked about the age of the jury pool, when he asked if anyone in the pool was under 18 and then said, “Though looking out at all the gray hair, I don’t think I really have to ask that question!”)

So scratch that part of the Bill of Rights about the right to be tried by a jury of one’s peers. It never has been true, and even today, until this outrage gets fixed, is a false promise.