Department of Criminal Justice California State University - Bakersfield CRJU 330 Race, Ethnicity and Criminal Justice Dr. Abu-Lughod, Reem Ali Justice on the Bench

Significance of jury and their role in the CJ system n Jury is the heart of the CJS n Serves the community against biases that may result from prosecutors, judges, etc… n Serves as the criminal defendant’s “fundamental protection of life and liberty” against race or color prejudice n 1880 Strauder v. West Virginia…..when court ruled that limiting jury selection to white males violated the equal protection clause of 14 th Amendment and was unconstitutional.

n States remained to exclude AA from serving on the jury n Argued that AA were inferior and lacked intelligence and experience to serve on the jury. This was very prominent in the South n Lose lose game for AA n Since 1930s the Supreme Ct made it more difficult for court systems to exclude AA or Hispanics from jury n Systematic discrimination

TECHNIQUES FOR INCREASING RACIAL DIVERSITY n Reforms to change the look of jury n In Hennepin County, Minnesota, majority white (9%) non-white, they doubled the pay for serving, provided funding to pay jurors’ day care expenses, and included a roundtrip pass with each jury summons……number of racial minorities increased

n Opinions on these approaches differ: 1. Randall Kennedy: there may be unintended consequences: n Jurors expected to act in a certain way to represent their race n Making process race dependent violates the rights of those excluded

2. Other side of argument say it’s good because it protects racial minorities from being tried by an all white jury. Also, the process will build more trust between racial minorities and government

THE PEREMPTORY CHALLENGE: RACIAL PROFILING IN THE COURTROOM F Even though the Supreme Ct. ruled that a jury should be drawn from a representative cross section of the community, this only applies to the selection of the jury pool. They do not apply to selection of individual jurors for a particular case F Prosecutors and defense attorneys can use their peremptory challenges “challenges without cause, explanation, or judicial scrutiny” as they see fit. They can use their peremptory challenges in a racially discriminatory manner

F 1964, Robert Swain 19 yr old AA sentenced to death by all-white jury for raping a white woman in Alabama F 1986 Jack McMahon, former assistant district attorney advised prosecutors that young black women are bad for juries and poor black are less likely to convict.

THE SUPREME CT. AND THE PEREMPTORY CHALLENGE u In Swain vs. Alabama 1965, the U.S. Supreme Court held that racially grounded peremptory challenges did not violate the equal protection clause so long as they were exercised 'for reasons... related to the outcome of the particular case.... u Only until 1986 in Batson v. Kentucky, that the Court rejected systematic exclusion

PLAYING THE “RACE CARD” IN A CRIMINAL TRIAL u 1994 O.J. Simpson case, O.J. was accused of murdering his wife Nicole Brown and Ronald Goldman u 1995 jury composed of 7 AA women, 2 white women, one Hispanic and one AA acquitted Simpson of all charges u Argument is that Johnnie Cochran Jr. “played race card” u Cochran argued that Mark Fuhrman (police officer) planted the evidence against Simpson.

Race-Conscious Jury Nullification: Black Power in the Courtroom u Jury nullification has its roots in the English Common Law, when a juror believes that the evidence presented at trial establishes the defendant’s guilt but nonetheless votes to acquit.

u The juror may believe that the law is unfair, or that the defendant has suffered enough, etc… u Butler argues that nullification is ok because the system is discriminatory against AA. However, in violent cases, when someone is guilty beyond a reasonable doubt, then the jury must convict the criminal