One afternoon last fall at the Cook County Criminal Courthouse five jury trials were in progress. In courtroom 205 Frederick Calvin, who's black, was on trial for possession of cocaine with intent to deliver. There were no black men in the jury box. In courtroom 402 Demetrious Allen, also black, was being tried for possession of a stolen motor vehicle by another jury with no black men. In courtroom 604 Javier Perez, a Hispanic man, was on trial for armed robbery. There were no Hispanic men on his jury. In courtroom 700 Miguel Garcia, also Hispanic, was being tried for murder by another jury with no Hispanic men. And in courtroom 201 Chicago police officers Ernest Hutchinson and Rodney Carriger were on trial for home invasion and official misconduct. Hutchinson and Carriger are black, as was one man on their jury. All five judges in the trials were white, as were 16 of the 19 lawyers.
After I took my survey of these trials, I bumped into Jerry Neal in a hallway of the courthouse. Neal, the cafeteria worker who delivers snacks and meals to jurors, was starting his afternoon rounds, pulling a cart laden with bags of potato chips and plastic juice bottles. When I told him how few minority males I'd seen on the afternoon's juries, Neal, who's African-American, frowned and shook his head.
"It's always like that," he said. "That ain't a fair trial."
The Sixth Amendment promises criminal defendants a trial by an "impartial jury." The U.S. Supreme Court has said this promise requires juries to be drawn from a cross section of the defendant's community, noting in a 1940 ruling that the exclusion of a class of people "is at war with our basic concepts of a democratic society and a representative government." In 1972 the court added that when any "large and identifiable" segment of the community is excluded from jury service "the effect is to remove from the jury room qualities of human nature and varieties of human experience." But the court has also said that the cross-section requirement needn't be satisfied in every individual case, so long as members of either sex or of any race or creed aren't systematically excluded from the pool from which jurors are selected.
The exclusion might not be systematic, but minorities--especially minority males--are being excluded. In the five trials I surveyed, 16 of the 60 jurors were black or Hispanic--that's 27 percent in a county whose adult population is 41 percent black or Hispanic. And only 4 of those 16 jurors were male. What I saw wasn't unusual. Walk into a jury trial in the criminal courthouse at 26th and California on any day, and you'll likely see a minority male in the defendant's chair and hardly any minority males in the jury box. That's true not only in Cook County but in urban courthouses throughout the nation. There's no simple explanation for this, and no simple solution.
Prosecutors certainly play a key role in keeping minority males off juries. When a jury is picked from the venire, the panel of prospective jurors, lawyers for both sides have a set number of challenges (usually seven in Illinois) they can use to excuse, or strike, prospective jurors without citing a reason. Lawyers tend to think that jurors identify with defendants who are similar to themselves, and since so many defendants are minority males, prosecutors often use their challenges to excuse minority males. A Supreme Court ruling forbids lawyers to excuse jurors because of their race, but the practice is easy to hide. If a defense lawyer accuses a prosecutor of striking a juror on racial grounds, the prosecutor can simply cite a nonracial reason--and the judge typically accepts it. In a 1996 opinion Illinois appellate justice Alan Greiman pointed to the myriad excuses prosecutors have given for striking black jurors and said facetiously that new prosecutors had apparently been supplied with a manual titled "Twenty Time-Tested Race-Neutral Explanations" for excusing black jurors.
But prosecutors don't have to discriminate to end up with a jury devoid of minority males. A host of urban realities will do it for them.
Minority males are far more likely to have criminal records than females or white males, which reduces the number available for jury duty. Anyone currently serving a felony sentence, whether in prison or on probation, is ineligible for jury service. In some states felons are barred from jury service for life. They aren't barred for life in Illinois, but they might as well be--ex-convicts are extremely likely to be excused by prosecutors.
Minorities of both sexes are often excluded by defense lawyers because they've been crime victims or have relatives or friends who've been. The lawyers fear that such jurors will be biased against defendants--crime victims are disproportionately minorities.
Minorities are also disproportionately poor, and the poor are less likely to report for jury duty. For one thing, they move more often than people who aren't poor, so jury summonses can go to the wrong address. Lawyers I spoke with speculated that the working poor feel they can't afford to give up even minimum-wage earnings for the daily juror stipend of $17.20. They may also fear they'll jeopardize their jobs if they miss work, even though employers are barred by law from penalizing workers for complying with a summons.
Trials often boil down to who's more believable, the defendant or the police--and defense lawyers say that's one way the lack of minority male jurors helps the prosecution. Minority men typically have had more direct experience with police than have white men, which makes them "more willing to believe that police sometimes lie," according to Melinda Power, a private lawyer who represented one of the defendants on the day of my survey. "They've seen police mistreat people or arrest someone who hasn't really done anything."
Diana Garcia, a public defender who represented another defendant that day, says she looks for jurors "who don't give 100 percent credence to whatever the police say, who know that there are cops who shake people down and who lie." Such jurors, she says, are often minorities. Garcia, who's Mexican-American, grew up in Chicago. "I know that police aren't all Officer Friendly types," she says. "I've seen family members and boyfriends pulled out of cars when they weren't doing anything wrong." She doesn't think juries should be limited to people whose image of police officers is based on what they see on TV.
Assistant state's attorney Lou Longhitano, who was prosecuting one of the defendants on the afternoon of my survey, says he "absolutely" would like to see more minority males on juries. "But when I'm picking a jury I'm not looking to fill quotas and make it look right. I want people who will think right. I want 12 fair people in there."
Longhitano, who was a prosecutor in New York before he moved here four years ago, says Manhattan juries were more sympathetic to the defense than Cook County juries, but not because they had more minorities. He says perhaps it was because Manhattan jurors tended to be wealthier and better educated than Cook County jurors. "It was not unusual to have three blue-haired ladies on a jury, and two of them would be PhDs."
Larry Rogers Jr., president of the Cook County Bar Association, a black lawyers' group, says court officials ought to work to increase the number of minority males on juries regardless of whether it improves the odds that minority male defendants will win. He thinks that more racially diverse juries will lessen defendants' cynicism about the system. "When there's hardly anyone similar to you involved in determining your fate you may have doubts about the fairness of the process," he says. Any effort to change that "is a step in the right direction."
In early April a key Illinois senate committee approved a bill designed to increase the representativeness of juries. The "Fair Jury Act" calls for dividing counties with more than 100,000 residents into jury subcircuits and would require juries to include someone from each subcircuit. In Cook County that would mean every jury would consist of one juror from the 12 subcircuits closest to the courthouse holding a criminal or civil trial. At 26th and California this would guarantee that juries would include residents of poor, minority neighborhoods that usually are unrepresented. "Juries in Illinois frequently do not accurately represent a fair cross-section of the community," the bill's preamble asserts, which "deprives the courts of diverse perspectives, and thereby impairs the capacity of the courts to ascertain the truth and reflect the conscience of the community in administering justice."
Lawyers and legislators say the bill could make the jury-selection process extremely cumbersome and it might not even be constitutional. Sponsored by Oak Park Democrat Don Harmon, it was pushed through the Senate executive committee by its Democratic members, and it has the backing of Senate president Emil Jones. Given how late in the legislative session it was introduced, its chances of passage this session are nil. But the support shown by a powerful committee and by Jones suggests that a concerted effort to amend Illinois law regarding jury composition may be around the corner.
Another way to boost the proportion of minority jurors, according to some jury experts, would be to increase the pay for jurors so that the working poor could better afford to serve. With this goal in mind, New York raised jury pay in 1996 from $15 a day to $27.50 and two years later increased it to $40. In Texas, El Paso County raised the pay in 1999 from $6 to $40, though other jurors in the state still get only $6. According to Texas lawyer Mark Curriden, a member of the American Bar Association's American Jury Project, the number of people showing up for jury duty in El Paso has doubled since the pay hike and the proportion of minorities reporting has risen significantly. His law firm is now suing the other Texas counties, contending that minorities are underrepresented in their jury pools.
The jury stipend in Cook County has been $17.20 for as long as anyone can remember. But given the tens of thousands of jury duty days served in Cook County each year, raising the pay significantly would be expensive, and the county is already strapped. It's not surprising that Timothy Evans, chief judge of the Cook County Circuit Court, expresses only lukewarm support for raising jury pay. He says an increase "would be very helpful" but quickly adds, "I'm also aware that taxpayers are heavily burdened." He favors reforms that make jury pools more representative but that "do not incur unnecessary expenses," and says that since jury service is a civic duty, those summoned ought to serve "irrespective of what the salary is."
Some jury experts have proposed a system that would compensate for the shortfall of prospective jurors from poorer neighborhoods by having courts keep tabs on who shows up by neighborhood or census tract, then send more summonses to areas whose residents report less often. If the compliance rate were 50 percent countywide, for instance, but only 25 percent in Woodlawn, Woodlawn would get twice as many summonses. Reporting rates would be updated frequently, as would the balancing mechanism. Several jurisdictions have contemplated such a system, but apparently nobody's using one at the moment. "It's more of an idea than a practice," says Shari Diamond, a Northwestern University law school professor who's a leading researcher on juries. She says institutional inertia blocks many proposals in the criminal justice system: "If you talk to judges they'll say the system's working fine--why change it?"
Evans says that when a panel of prospective jurors sent to a courtroom for a trial doesn't include enough minorities, the trial judge can simply send the panel back and request another. But Allen Klein, who's been supervisor of the jury room at 26th Street since 1981, says he's never known a judge to reject a panel because it wasn't diverse enough.
Many jurisdictions have begun keeping statistics on who reports for jury duty as a first step toward making juries more representative. In Contra Costa County, California, people who show up for jury duty are now asked to provide their race, gender, and zip code in an anonymous survey--research that was prompted by lawsuits challenging the makeup of the county's jury pools. "You need to know something about a problem if you're going to solve it," says Sherry Dorfman, chief assistant executive officer of the local branch of the Superior Court of California. But in Cook County, says Evans, "We don't actually keep statistics on the basis of race or ethnicity or anything like that."
Tom Munsterman, director of the Center for Jury Studies of the National Center for State Courts, says there's a reason some jurisdictions are reluctant to keep such data: Court officials know the data would almost certainly show that minorities are underrepresented in jury pools, and then they'd be forced, probably by lawsuits, to fix the problem. And they know that wouldn't be cheap. "Why keep data that's going to get you in trouble?" says Munsterman. "You know, why walk a mile to get punched in the nose?"
Art accompanying story in printed newspaper (not available in this archive): illustration/Lloyd Miller; photo/courtesy Getty Images.