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Black Lives Matter and the American Juror, Part 1

Yesterday, as you all surely know, a Minneapolis jury returned three guilty verdicts in the criminal trial of former Minneapolis police officer Derek Chauvin for the murder of George Floyd. It is hard to overstate the magnitude of this trial. Many years from now, we may remember where we were when we received news of the verdict. It is a complex, emotional moment for a country traumatized and, to a certain extent, transformed by the horrifying video of George Floyd’s death last May. Tensions have been high in Minneapolis. Thousands of National Guard troops and law enforcement officers patrolled the city, and in-person school was preemptively cancelled this week in anticipation of the response to the trial’s outcome.

How did lawyers attempt to select a fair and impartial jury in this climate? If you were summoned for jury duty for the case of State of Minnesota v. Chauvin, et al., you would have been asked to complete a lengthy questionnaire including, in a section addressing bias in the criminal justice system, the following question:

This was not the first time that Black Lives Matter has come up in jury selection, but it was perhaps the first time that potential jurors were asked their opinions on a movement that exploded exponentially and internationally by the very events they were summoned to review.

It is becoming more common for lawyers to probe support for the Black Lives Matter movement among potential jurors, which raises several legal questions. A first question, the subject of this post, is: When may lawyers inquire into opinions about the Black Lives Matter movement and related issues during jury selection? In my blog post for tomorrow, I will cover a second set of questions: Are there times when a juror could be excluded for cause for supporting Black Lives Matter? Is it unconstitutional to strike a juror for their support of the Black Lives Matter movement?

When may a lawyer want to inquire into support for Black Lives Matter?

First let’s consider how this issue might come up in a more typical criminal case. Imagine that you are a criminal defense attorney representing a Black client who ran from police officers near the scene of a robbery. You believe the prosecution will argue that your client’s flight shows her guilt. Your client asserts that she ran not because she committed a robbery, but because she fears police encounters based on her familiarity with recent officer shootings of unarmed Black people, events which are a core concern of the Black Lives Matter movement. You may want to talk to potential jurors about their perspective on Black Lives Matter to determine whether they will be open minded to the evidence you will present and to your explanation of what happened.

Will your questions be permitted?  

What might happen when you ask jurors about the Black Lives Matter movement? You may be met with an objection and, anecdotally, North Carolina attorneys tell me that such objections have been sustained. But that may change after the North Carolina Supreme Court’s opinion in State v. Crump, 376 N.C. 375 (2020). In that case, where a Black defendant was involved in a shootout and car chase with Charlotte Mecklenburg County police officers, the defense attorney was blocked from asking questions about (1) race and implicit bias, (2) a recent local case involving an officer shooting of an unarmed Black man, and (3) police officer shootings of civilians more broadly. The North Carolina Supreme Court reversed the defendant’s conviction, holding that the trial court “abused its discretion and prejudiced defendant by restricting all inquiry into prospective jurors’ racial biases and opinions regarding police-officer shootings of black men.” State v. Crump, 376 N.C. at 393; see also this blog post from my colleague Jonathan Holbrook summarizing the opinion.

Implications of State v. Crump

In State v. Crump, Black Lives Matter was not referenced by the defense attorney during jury selection, but the prohibited questions addressed issues central to the Black Lives Matter movement. Relying on North Carolina case law interpreting the scope and purpose of voir dire, the majority in Crump held that, while a trial judge may restrict the manner and extent of questioning on a relevant subject, the total refusal to allow inquiry into police-officer shootings of Black men was an abuse of discretion. State v. Crump, 376 N.C. at 384-389. Under N.C.G.S. 15A-1443(a), such an error is prejudicial where there is a “reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” The Crump majority found this error prejudicial because the “defendant’s inability to question prospective jurors about racial bias and police-officer shootings of black men deprived him of a crucial tool needed to mitigate the risk that his trial would be infected by racial prejudice.” State v. Crump, 376 N.C. at 392. Notably, while the defense attorney’s questions implicate important constitutional rights, the defense attorney did not constitutionalize the objection, hence the court’s resolution of the case primarily based on state law standards.

The North Carolina Supreme Court has long recognized a right to voir dire on racial bias. State v. McAfee, 64 N.C. 339, 340 (1870) (“It is essential to the purity of trial by jury, that every juror shall be free from bias”). North Carolina jurisprudence actually predates that of the United States Supreme Court in this area: when the United States Supreme Court first addressed this issue, it even relied on the reasoning of the McAfee court in its analysis. Aldridge v. U.S., 283 U.S. 308 (1931) (reversible error for the judge to refuse to inquire into racial bias where the defendant was Black and accused of interracial crime of violence).

Modern case law also protects the constitutional right to voir dire on race and racial bias in some circumstances. Where those circumstances are present and questioning is prohibited, no showing of prejudice is necessary to demonstrate reversible error. “[V]oir dire on the subject of race is constitutionally required in some cases, mandated as a matter of federal supervisory authority in others, and typically advisable in any case if a defendant requests it.” Pena-Rodriguez v. Colorado, 580 U.S. ___, 137 S. Ct. 855, 881 n.9 (2017) (Alito, J., dissenting). Thus, the United States Supreme Court has held that there is a right to voir dire on race in a capital case involving an interracial crime of violence, Turner v. Murray, 476 U.S. 28 (1986) (plurality), and in cases where “racial issues [are] inextricably bound up with the conduct of the trial,” Ristaino v. Ross, 424 U.S. 589, 597 (1976). The U.S. Supreme Court has likewise recognized this right where the defendant raised a claim of selective prosecution based on race and civil rights activity. Ham v. South Carolina, 409 U.S. 524 (1973).

Attorneys seeking to explore attitudes on the Black Lives Matter movement may invoke this body of case law in support of their claim of a protected right to understand potential jurors’ attitudes on issues relating to race and racial bias. Even in cases without obvious racial content, attorneys can present evidence of studies finding that “juror racial bias is most likely to occur in run-of-the mill trials without blatantly racial issues.” Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J. Personality & Soc. Psychol. 597, 601 (2006). By reversing a serious conviction under the more exacting abuse of discretion and prejudice standard, State v. Crump highlights the importance of allowing questions exploring these topics to reduce the possibility of seating a biased juror and jeopardizing the jury’s verdict on appeal. State v. Crump, 376 N.C. at 392, quoting Peter A. Joy, Race Matters in Jury Selection, 109 NW. U. L. Rev. Online 180, 186 (2015) (“Especially in times when issues of race are on the minds of potential jurors, such as currently in the St. Louis area due to the shooting of Michael Brown and continuing protests in Ferguson and several other cities over racial injustices, failing to question about bias in some cases may result in stacking the jury against the accused.”)

What happens when a potential juror expresses a favorable opinion of Black Lives Matter and is challenged for cause or peremptorily struck from a jury pool on this basis? Across the country, appellate courts have been called upon to review the treatment of jurors who express support for the Black Lives Matter movement. See Abbie Vansickle, You Can Get Kicked Off a Jury Pool for Supporting Black Lives Matter, The Marshall Project, July 7, 2020. Stay tuned for my next post tomorrow on this topic.

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