Stefan Sharkansky has a terrific blog on which he’s just posted a, not surprisingly, terrific comment about a controversy in Seattle over jury diversity.
By way of background, let me interject that solving the problem of diversity on juries, i.e., lack of diversity on juries, is a nice example of the difficulty of managing race, of how today’s solution becomes tomorrow’s problem. (Attention lawyers and others who know what I’m talking about below: please excuse the coming brevity-induced oversimplifications.)
In the old days attorneys were allotted a certain number of peremptory challenges of jurors, which is to say they could excuse some jurors for any reason or no reason, i.e., without having to give a reason. Recently, in a series of opinions dating back to Batson v. Kentucky, 476 U.S. 79 (1986), the courts have made an exception for race, in effect ruling that peremptory challenges could not be used to exclude on the basis of race. In other words, peremptory challenges were limited to no reason or any reason except race. Even more recently, predictably, the demand has arisen that race be taken into account in the composition of juries to ensure that they are appropriately “diverse.”
In Seattle, as Sharanksy describes, one prospective juror took a look at the others in his pool, and didn’t like what he saw.
Of the 45 people assembled as possible jurors for that morning’s trial, Blair was one of only two African Americans. “I looked at that and I said, ‘What’s wrong with this picture?'” he recalled.
Nothing, Sharanksky answers. Read his post to see why.
I could be wrong about this, but I don’t think the accused is guaranteed a jury of his peers. I think he is guaranteed a fair and impartial jury.
Here’s a hypothetical setup. Back in the bad old days, a white man might have been accused of beating up a black man. Maybe he claimed self-defense, but the circumstances didn’t really support that. If he was assured a jury of his good-old-boy peers, (and in a practical sense he was), he was basically assured of an acquittal. Is that what we want? I don’t think so.
As soon as I realized 2 black jurors was statistically reasonable, I lost interest in the protest. (I live in an area where that wouldn’t be true.)
Of course, this all starts from a dreadful history of conspiring to keep blacks off of juries.