THE VIEW FROM HERE-The United States Constitution, the law that supersedes all others in this country, clearly states in Amendment VI that defendants have the right to be judged “by an impartial jury (italics added) of the State and district wherein the crime shall have been committed.”
The writing of this same constitution was greatly influenced by the long-established English Bill of Rights as well as the Virginia Declaration of Rights (consider Thomas Jefferson’s input). Thus, we have a long history of precedents upon which our legal system is based.
Subsequent to the Constitution’s creation, U. S. Supreme Court decisions have declared that jury members must be made up of the defendant’s peers (at that time excluding women, Blacks, and other minorities—since remedied, of course).
There is confusion, however, about what the word “peers” really means. Etymologically, peer means “equal.” Prospective jurors are first summoned by the courts for possible empaneling and later, at voir dire, the attorneys on both sides can question the potential panel and challenge for cause those individuals the attorneys believe might not be able to judge the defendant(s) fairly.
Impartiality has been interpreted by the courts to mean unbiased. We get an open-minded jury when the following reflects the jury panel: a diverse representation of the population, with attention to race, national original, and gender. Selection must not include any method that intentionally narrows the ability to select a diverse panel of jurors.
We must also remind ourselves that the jury, by law, is to be made up of peers of the defendant, not of the victim. Thus, in the case, let us say, of George Zimmerman, it was not mandatory, on the one hand, to have a Black stand on the jury except for the fact, on the other hand, that Blacks do make up a part of the community where both Zimmerman and Trayvon Martin resided. Yet, O. J. Simpson was tried by a panel almost entirely of Black jurors from Los Angeles even though both he and the victims lived in Brentwood. Some inconsistency, don’t you think?!
Another consideration is something that is beginning to be discussed lately. In fact, there was a recent article in the Los Angeles Times on the following provocative point: Should non-citizens serve on juries? Ironically, at present, non-citizens (as well as citizens) are judged only by citizens, many of whom do not have a clue what kind of life the defendants and victims live.
The ensuing reflects the lives of real people, the non-citizens who should be considered for sitting on a jury: Many of these legal immigrants have lived here for years. Their children have been born here. They are business-owners in many cases. They are studying the Constitution to enable them to become citizens, often knowing more about the law than the average citizen does. They have never broken the law. They have worked hard to own their own homes and, therefore, are genuine stakeholders in their communities.
I have seen how eager new immigrants are to know as much as they can about this country. They are so proud of living here and being able one day to call themselves American citizens. These are not the undocumenteds about whom I have spoken in the past. They came here legally and are working their way through the arduous, years-long process to become citizens. Is there any logical reason to exclude them from a jury pool which is often drawn from people who do not want to be there in the first place?
I have sat on juries a number of times. I shall always remember one time in particular (when I served with a former student—that was neat). It involved a gang member in a walk-by shooting during which no one was hurt. The jury was composed of eleven women and one man. When it was time to select the foreperson, I was blown away: Almost all of these women simultaneously stated, as if in a chorus, that they wanted to appoint the man. I could not believe it! What century were we in anyway? They had just set the Women’s Movement back by a hundred years!
Subsequently, during deliberations, I was appalled when I heard one older woman state that she was going to vote the young man guilty because even if he were innocent, the conviction would teach him a good lesson!
More recently, I served as an alternate on a murder trial in the San Fernando Courthouse. Based upon the evidence alone, it was clear to me that the jury would have to vote “not guilty”—which, of course, does not necessarily mean he was innocent. This jury was comprised almost entirely of upper class white people who lived in Santa Clarita or more affluent sections of the San Fernando Valley and had nothing but contempt for the people who live in and around both where the defendant lived and where he was accused of committing the crime.
Jurors spoke during break periods about the case (they are not supposed to) and talked about how police officers are always so helpful and trustworthy and that if they arrested someone, they must have had good reason.
Many shared opinions of the culture from which the young man came. The panel members were fearful (based mostly on what they had seen on the television news or in movies or read in newspapers). They had never witnessed firsthand the wonderful things that the majority of the community does every day: working with the ill or indigent, feeding the homeless, promoting educational programs, aiding the elderly, volunteering to fight for our country, voting, church-going believers, people working two jobs to support the families they so love dearly.
I know from what I gleaned from their conversations that they had made up their minds long before the deliberation period commenced. Few were taking notes during the trial; some dozed off. Many were eager to get back to jobs or family or planned trips. One juror cried every day because she was so worried that her boss would fire her for serving on the panel.
We neither want nor deserve such people to serve on our juries. Personally, I strongly advocate for professional, well-paid jurors (such as what we find on Grand Juries). Incidentally, I believe it is important for jurors to be able to request clarification (by way of an appropriate method) of the attorneys and/or ask questions of the witnesses (jurors should have the opportunity to submit questions that had not been asked). I understand that some judges do already allow this process to some extent in their courtroom, but we need a consistent system that is implemented impartially in all cases.
We need to reform the way juries are selected. Each state determines the rules regarding the make-up of jury pools. In California, each county makes its own determination while, at the same time, adhering to the mandates of Federal law. According to Kristin Greenaway from the Administrative Office of the Court Jury Improvement Program, initially potential jurors are drawn from DMV and Voter registration rolls. These names are placed into a pool by County and “random” lists are drawn.
The County has two ways of making boundary determinations: one is countywide and the other is made by breaking up the County into “sub-divisions.” Then, jurors are called up and may be dismissed for hardship, cause, or pre-emptory challenges by the DA and/or defense attorney(s). The number of challenges is based upon the type of trial.
According to Attorney Winston Kevin McKesson of Los Angeles, who has two pending trials (Paulino and Taylor) on this very issue, jury pools are determined in two different ways based upon whether they are misdemeanor or felony: zip codes (generally representing minority populations) are used for misdemeanors , resulting in juries that are more likely to represent the peer group of the defendant; jury pools for major felonies are being drawn from more white, upper-class communities, resulting in jury pools that often do not reflect the ethnic and socio-economic status of the defendant—exactly what McKesson purports to have transpired in the two referenced cases. This situation certainly implies that random selection is not so much left to chance.
This kind of reminds me of the “steering” that used to take place under former laws that allowed banks and realtors to sell homes (whether old or new) in a way that would keep communities segregated. It was called red-lining--picture drawing a red line on a map to keep whites inside the lines and minorities (particularly Blacks and Latinos at the time) out—always on the outside looking in.
We need jurors that are committed to the duty of judging their peers (and consider it a privilege)—people that you or I would want to determine our own fates should we ever find ourselves subject to criminal proceedings.
We need to know that justice is about mercy. It is not a game of which side can chalk up more wins. Jurors need to see through the trickery and deception that often transpires during a trial. They need to be active participants on that panel—to look for facts and suspect inconsistencies. They need to be educated about basic legal practices—that law is not like the entertainment we see on TV or in the movies. There are real victims who have suffered, but there are also real defendants who deserve an unbiased, impartial panel of their peers--jurors who understand the very real consequences of the choices they will make.
What can be done? In order to change the composition of juror pools and to insure that defendants are truly judged by a jury of their peers, we need to seek out our state legislators to introduce and get co-sponsors for amendment(s) to portions of the California Code of Civil Procedure, Sections 190-237 which spell out the selection process. Section 203(a)1 regards the issue of empanelling non-citizen legal residents. We would ask that Sections 191 and 197(a)(b) be changed to require the appointed jury commissioners (who are in charge of managing all jury systems) toadhere to and re-enforce the points that speak of “equitable [and] random selection . . . [and that there must be] jury selection based upon a] representative cross section” of prospective and potential jurors.
We need to gather supporters in our communities to push their electeds to right some very inequitable wrongs. It has long been said that the rich and famous rarely get convicted because they can afford expensive, high-profile lawyers. Well, we can add to that the reality that prosecutors want to rack up the big wins, but they still can do so when the potential juror lists from which they make the final selections are fairly and equitably composed. Pre-emptory challenges are limited in number—a situation which often seems to favor the prosecution over the defense. This is also something we may want to consider changing.
Let us get the ball rolling. Contact attorneys like Mr. McKesson who would appreciate our support for reforming the troubling methods and practices by which the present jury selection is conducted. Let’s contact our legislators. They are accessible to all their constituents. They want to hear our concerns and if they plan on getting re-elected, they will listen to us in order to make that happen. Hopefully, they will move on our issues simply because they also believe in them.
(Rosemary Jenkins is a Democratic activist and chair of the Northeast Valley Green Coalition. She also writes for CityWatch.)
-cw
CityWatch
Vol 11 Issue 78
Pub: Sept 27, 2013
