In October of 2014, Jason Van Dyke - a white Chicago police officer - shot and killed Laquan
McDonald - a black teenager.
A year after the shooting, the city released the graphic video that captured the incident.
It shows McDonald walking down a busy roadway, holding a knife.
As he walks away from the officers, Van Dyke shoots him.
16 times.
“16 shots.
16 shots.”
The response to the release of the footage was swift and widespread.
Chicago residents protested.
The police chief was fired.
The state’s attorney was voted out.
A Justice Department investigation unearthed a pattern of excessive deadly force and racial
bias among Chicago Police officers.
And for the first time in more than 30 years, a Chicago police officer faced murder charges.
While police officers who end up in court often prefer a judge to hear their case, Van
Dyke opted for a jury.
But here’s the thing about that jury.
It didn’t look like the population of Cook County, where the shooting took place.
In a county where almost a quarter of people are black, there was only one black juror.
When it comes to justice in America, race has always been a part of the equation...So
what happens when a “jury of peers,” doesn’t actually look like our peers?
“A good citizen will perform basic civic duties.
Your duty to serve on the jury goes with your right to trial by jury”
Here’s how jury selection works.
First, prospective jurors are picked for duty out of a large pool.
Usually, a list of registered voters or licensed drivers.
Then comes a process called “voir dire” or “to speak the truth.”
Prospective jurors are questioned by lawyers on both sides.
They’re looking for bias.
Like in this scene in “The Devil’s Advocate” where a lawyer is trying to gauge the jury
for bias against bankers.
“Do you think as a juror you might be able to set aside any prior opinions you might
hold of the savings and loan industry?”
If a lawyer has reason to believe a juror will be biased, they can ask the judge to
dismiss the juror with cause.
Each side can also strike a certain number of jurors without giving a reason.
These are called “peremptory challenges,” and this is where things get tricky.
While lawyers aren’t technically allowed to use these challenges to discriminate on
the basis of race or sex, that doesn’t mean they don’t try.
Like in this scene from the TV show How to Get Away with Murder.
“We have to look for jurors who are prone to distrust authority.
What are some of the signifiers of this?
Number one is race.
There’s a larger distrust of police among black Americans.
You don’t call the police in my neighborhood.”
The racial balance of a jury can impact the verdict.
Studies have shown that all-white juries are harsher on black defendants, make more errors,
and discuss less of the case facts.
And in another study, in cases with a black defendant and white victim, having one or
more black male jurors lowered the likelihood of a death sentence - by a lot.
“A difficult day for jurors in the OJ Simpson murder trial.”
It’s why - in high-profile, racially charged, trials like that of OJ Simpson - so much attention
was given to the fact that the jury had nine black members on it...
"The jury has spoken."
and Simpson was acquitted.
There’s also the disturbing case of Emmett Till.
In 1955, two Mississippi men - Roy Bryant and J.W.
Milam - were accused of kidnapping and brutally murdering a 14-year-old black boy named Emmett
Till.
Bryant’s wife alleged that the boy had touched her hand and waist, and whistled at her in
a grocery store.
Emmett Till’s body was found days later in the Tallahatchie River, beaten, shot, and
tied to a cotton gin with barbed wire.
Bryant and Milam were arrested and charged with murder.
But the trial of Bryant and Milam would be decided by a jury...a jury that consisted
of 12 white men.
Despite multiple witnesses seeing the two men take the boy, and one that saw the back
of Milam’s truck dripping with blood - “a jury of twelve white neighbors of the defendants
reached the verdict after one hour and five minutes of deliberations”
The men would walk free.
Decades later, Bryant’s wife - who made that first accusation against Emmett Till
- recanted her story.
Fast forward thirty years later, and all-white juries still weren’t a thing of the past.
In the 1986 case Batson vs. Kentucky, a prosecutor used his peremptory challenges to remove all
four black jurors from the pool.
The defendant’s appeal made it all the way to the Supreme Court.
And won.
Today, if one side suspects the other of using peremptory strikes to racially discriminate,
they can file what’s called a Batson challenge.
But...the problem is….
"Yeah so Batson is pretty much widely regarded as a failure."
If a lawyer accuses the other side of excluding a juror because of race, the judge then has
to decide whether it’s discriminatory.
The accused would have to come up with a reason - any reason - that’s race neutral, for
why they don’t want that juror.
"Courts have really allowed kind of any reason."
"For example like an attorney might say ‘well I struck all the people who seem suspicious
of the police.’
And so that would on its face be racially neutral but it's still kind of allows for
that disproportionate impact."
You can see that in this leaked 1987 training video in which attorney Jack McMahon explains
how to exclude black people and get away with it.
“There's the blacks from low-income areas are less likely to convict… and as a result
you don’t want those people on your jury.
Batson vs. Kentucky, I'm sure you've all become aware of that...
The best way to avoid problems is to protect yourself.
When you do have a black jury, you question them at length, on this little sheet that
you have mark something down that you can articulate. Say well the woman had a kid the
same age as defendant and I thought sh’ed be sympathetic to him.
Or she’s unemployed and I just don’t like unemployed people because I find they’re not too
stable.”
This kind of strategy has led to a pattern of excluding black jurors across the country.
And in North Carolina, between 1990 and 2010 -- prosecutors struck black jurors 2.5 times
as often as non black jurors.
Another report found half of all juries that delivered death sentences in Houston County,
Alabama, between 2005 and 2009 were all white.
The other half had a single black juror...even though the county is 27 percent black.
And Ann Eisenberg did a study that showed the prosecution struck 35 percent of black
jurors in South Carolina who made it through the voir dire process compared to 12 percent
of white jurors.
"I asked a colleague of mine when I finished this study I said you know
okay I've shown this you know what of it now?
There's so much evidence."
"And he said 'yeah, proving that racial discrimination effects jury selection is like proving that
the sun rises.' "
But there might be signs of progress.
In the case of Jason Van Dyke, the Chicago police officer who shot Laquan McDonald, a
majority white jury convicted him of murder.
It was Chicago’s first murder conviction of a police officer in 50 years.
They found him guilty of second degree murder, a lesser charge.
And guilty of all 16 counts of aggravated battery.
One for each shot at Laquan McDonald.
“We the jury find the defendant Jason Van Dyke guilty of
aggravated battery with a firearm, 16th shot.”
Thanks for watching.
There’s a lot I couldn’t fit into the video, like how do we fix the problem of racial
discrimination in jury selection?
Over the years lawyers have suggested solutions like
choosing from a bigger jury pool of underrepresented
people that aren’t on voter registration lists or driver license lists.
Or getting rid of peremptory challenges altogether.
It’s a complicated problem to solve but there are procedural tweaks that could make
the system a lot more fair.