Stop attorneys from improperly excusing African American jurors; expand the pool of prospective jurors; make reasonable efforts that juries in Detroit be ‘racially proportionate’
It never ceases to shock me that in a city with an African-American population that comprises 82% of the city’s entire population, there are so few black citizens that end up on Detroit juries in Wayne County Circuit Court.
During my more than 20-years as an auto accident attorney, I’ve appeared in Wayne County Circuit Court hundreds of times. I’ve taken many cases to trial and verdict. Yet rarely do I see diversity on my juries that match the racial diversity of Wayne County, let alone Detroit. It’s been a bit terrifying for many of my clients, when they are black and from Detroit but they’re looking at a jury full of white people from Plymouth and surrounding suburbs. And far too often, the insurance defense lawyers use preemptory challenges to excuse the few African American prospective jurors who are called and put in the box during voir dire.
The jury selection process in Wayne County Circuit Court is clearly broken.
I’ve written about this issue before, when I asked “why the U.S. Chamber of Commerce seems to dislike black people?”
But, today, I want to speak directly about the persistent and seemingly intractable problem of getting more African American jurors – and jurors of other minorities that are representative of Detroit and Wayne County – to actually sit on juries in Detroit.
Specifically, I’d like to see three changes to fix the problem in Detroit:
- Stop allowing ignorant and/or clearly ill-intentioned lawyers (often sadly defense lawyer and insurance company lawyers in my own world of auto accident litigation) from using so-called “racially-neutral” explanations to cover up what is clearly discriminatory and improper use of peremptory challenges during jury selection.
- Expand the pool of prospective jurors from people listed on the Secretary of State’s drivers license and personal identification card lists to include citizens who have registered to vote and those who have personal state income tax.
- Empower judges in Wayne County Circuit Court to step-in when they see abuse occurring in such a way that the judges can ensure that a lawyers’ use of peremptory challenges isn’t simply a subtext to prevent African Americans from sitting on juries.
Illogical ‘race-neutral’ explanations for peremptory challenges
What got me thinking recently about the issue of racially-diverse juries in Detroit is Adam Liptak’s story in The New York Times, “Exclusion of Blacks From Juries Raises Renewed Scrutiny,” which reported that studies have shown that prosecutors use peremptory challenges two to three times more often to “strike” blacks from juries than they do other persons. Reading the story crystallized what both I and my own clients have experienced so often when empaneling juries in Detroit.
The article discusses studies involving peremptory challenges in criminal cases, but the results would be similar if studies were conducted in civil cases – and especially the auto accident civil cases that I see in Wayne County.
Lawyers can use peremptory challenges to excuse prospective jurors during jury selection. No explanation is required for the use of the peremptory challenge, unless the lawyer exercising the challenge is accused of doing so in a racially discriminatory manner.
When such an accusation is made, the lawyer may defend against it by offering a so-called “race-neutral” reason for his challenge.
My experience has been – and this is borne out by Mr. Liptak’s reporting – that so-called “race-neutral” explanations are essentially a “get out of jail free card” that allows attorneys to still remove people they don’t want on juries, which is based upon stereotypes based upon skin color. Again, watch an insurance company lawyer defending an auto accident case in Detroit use his preemptory challenges on the very few African American jurors who were called, and then tell me I’m wrong.
I’m not. I see this happening all the time.
This is because, as one of the experts that Mr. Liptak spoke to said: “Stupid reasons are O.K.”
Below are some of the race-neutral “reasons” that lawyers have gotten away with using for justifying why they wanted to prevent a particular black juror from sitting on their jury:
“They were young or old, single or divorced, religious or not, failed to make eye contact, lived in a poor part of town, had served in the military, had a hyphenated last name, displayed bad posture, were sullen, disrespectful or talkative, had long hair, wore a beard.”
Sadly, I’ve personally heard these excuses and lots more. And the judges in Wayne County, and sadly too many plaintiff personal injury attorneys who don’t know how to stop this, have allowed this to go on for too long.
We must no longer tolerate lawyers who exploit illogical, “stupid” race-neutral explanations as “cover” for their racially-discriminatory use of peremptory challenges.
Building a bigger juror pool
Under existing law, people are called for jury duty based on the drivers license and personal identification card lists provided by the Michigan Secretary of State. (MCL 600.1304)
Rep. Brian Banks (D-Detroit) thinks those lists create too small a pool of jurors to draw from, especially for a city like Detroit where impaneling racially-diverse juries has proved to be a persistent problem. In House Billl 4407, Rep. Banks proposes the following:
“The jury board shall select the names of persons … to serve as jurors from a list [provided by the Michigan Secretary of State] that combines the driver’s license list, personal identification cardholder list, current voter registration lists or books, and a list of individuals who filed a state income tax return.”
Of HB 4407’s proposal, Rep. Banks told Wood TV in April 2015:
“‘By doing this, the [HB 4407] would make the jury pool more diverse … Currently we have issues in several counties where there aren’t enough jurors on the pool to serve as well as our constitution affords us that opportunity to have a jury of our peers. If you have ever been in a courtroom or had a jury trial or sat in on a jury trial, most times the jury does not reflect or resemble the defendant in a criminal trial or the plaintiff or the defendant in a civil trial.’”
Similarly, the Michigan Legislative Black Caucus said the following in support of HB 4407:
- “[M]any Michigan residents do not possess a driver’s license or state-issued identification, particularly African-Americans who live in urban areas and use public transportation …”
- “[T]hese residents are currently not summoned to serve on juries, and their absence affects a defendant’s constitutional right to be judged by a jury of his or her peers …”
- House Bill 4407 “would expand the number of people summoned to serve on juries by requiring the jury lists to also include current voter registration lists and the names of individuals who have filed a state income tax return …”
- House Bill 4407 “will not only create more diverse jury pools, but will also increase of number or residents summoned, thereby decreasing the frequency that residents are asked to serve …”
- House Bill 4407 “will expand the number of people summoned to serve on juries, and enforce a defendant’s constitutional right to be judged by a jury of his or her peers that reflects the racial, religious and gender demographics of the community …”
Selecting ‘racially-diverse’ juries
Okay, I know this idea probably won’t fly. It’s got some problems. When I looked into it, it appears that it was tried once before, and the Michigan Supreme Court rejected it by a 5-2 vote.
But you must admit that, in a city like Detroit, or any jurisdiction in Michigan where it’s nearly impossible to impanel a jury that reflects the racial and minority makeup of the community, there is some appeal to the idea of empowering judges to use the voir dire/jury selection process to ensure racially-diverse juries.
I got this idea from a 2008 Michigan Court of Appeals case, Pellegrino v. AMPCO Systems Parking, where two appellate judges sided with a trial judge who had conducted jury selection in accordance with his “desire to have a racially balanced jury.”
The trial judge had refused to allow an otherwise valid and non-discriminatory peremptory challenge of a prospective juror who was “an African-American female.” He explained that excusing the prospective juror his “goal” of having “a jury that represented the racial composition of this county.” The trial judge added:
“There is no other county in the state of Michigan with as diverse racial composition as Wayne County … I am going to seek to have this proportional representation on the juries that hear cases in this court.”
Not surprisingly, two years after the Court of Appeals decided Pellegrino, the Michigan Supreme Court overruled it in 2010.
The Supreme Court concluded that “deny[ing] a party the use of a peremptory challenge on the basis of the court’s desire to attain a racially proportionate jury” violated the federal and state constitutions, U.S. Supreme Court precedent and the Michigan Court Rules.