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Speaker 1

00:00

-♪ ♪ -♪ ♪ Moving on. Our main story tonight concerns jury duty. A summons for which is 1 of the things you least want to find in the mail aside from maybe a bill or a human toe. And please, a pinky, call me when you're serious enough to send a middle piggy, then maybe we'll talk business.

Speaker 1

00:18

Complaining about jury duty has long been a beloved American pastime. Just watch this caller to a 90s local TV show delight the host with his whining.

Speaker 2

00:26

They put us down in this holding pen, they call it the jury assembly room. Yeah. The jury, the J-A-R, the jar, they stick you in this jar with like 300 other people for a whole week.

Speaker 2

00:38

Oh, man. And I figure it's like being in jail, only jail's a whole lot better because jail's a lot cleaner and has much better lighting.

Speaker 3

00:45

Oh.

Speaker 2

00:45

And we have to pay for our own food, and we don't get to go outside, we don't get free HBO, and we don't get to talk as much, and we don't get healthcare, and we don't get conjugal visits.

Speaker 4

00:53

You don't get any of that stuff?

Speaker 2

00:54

We don't get any of that.

Speaker 1

00:56

Now, he's actually right. You don't get conjugal visits while waiting to be called at jury duty, although judging from that call, being at jury duty isn't that caller's primary obstacle in that department. As for not getting HBO, I don't know what he's complaining about there.

Speaker 1

01:09

They don't even give me free HBO and I'm actively ruining it. Now that man, Greg, was a regular caller to that show, and I know that because we got curious about him after watching that clip, and it turns out, he's a lot. For example, Greg has a website where you can find classic Greg-isms like, environmentalism is evil, or the Baptists are the pin in the homo-grenade. Incidentally, Greg-isms isn't even a term I made up.

Speaker 1

01:32

It's an actual section of his website. We could honestly spend the rest of this show on Greg, but sadly, we do have to move on. Because the important thing about jury duty is, you know what, just 1 more thing about Greg. He's been tweeting, it's almost time to have a great hashtag weekend, everyone, who's with me, every Friday for the last very many Fridays.

Speaker 1

01:52

And read the room, Greg. No 1 has great hashtag weekends anymore. We're all sitting at home watching the days blur together in a miserable hashtag time soup. But while it might sound cliche, serving on a jury really is an essential civic duty.

Speaker 1

02:05

The right to a trial by an impartial jury of your peers is enshrined in the Sixth Amendment of the Constitution. But the truth is, while your peers are supposed to be chosen from a fair cross-section of society, people of color are routinely excluded. According to a study of 14 federal district courts, under-representation of the Latino and African-American populations is ubiquitous, which is a problem with huge implications for juries. This social psychologist staged mock cases where some juries were all white and others were racially diverse, and found that the diverse ones operated more fairly and deliberated more comprehensively.

Speaker 5

02:43

In this study, they raise more facts from the trial, They discuss a broader range of information. They discuss the information more accurately, actually, in discussing the facts of the case. They're more willing to have uncomfortable conversations about controversial issues, like those involving race and racial profiling.

Speaker 1

03:01

Yeah, It turns out juries are sort of like presidents of the Spokane, Washington chapter of the NAACP. When they're entirely white, things tend to go south fast. And this is reflected in the real world.

Speaker 1

03:12

Researchers who examined felony trials in Florida found juries formed from all-white pools convict black defendants a full 16 percentage points more often than they do white defendants. But that gap in conviction rate is entirely eliminated when the pool includes at least 1 black member. And that's 1 of those facts that you probably assumed was true, even though you wish it wasn't. Like the fact that dogs don't really enjoy music, or that Sean Penn's new wife is a year younger than his daughter.

Speaker 1

03:40

So, tonight, let's take a look at why juries are so often unrepresentative, and what we can do about it. And the whole process starts with what's called a jury wheel, a pool of potential jurors in a community. It used to be an actual wheel. And for many years, Black people were explicitly excluded from them.

Speaker 1

03:57

And even after the Civil Rights Act of 1875 said you couldn't discriminate against jurors based on race, many officials would still find ways to remove them, like by printing their names on different colored paper so they could be avoided during the supposedly random drawings. And while thankfully, that doesn't happen anymore, our current system has many flaws that can end up having a similar result. For instance, nowadays, jury wheels are often computerized lists gathered from voter registration and driver's license records. But there's a big problem there, as this public defender in New Orleans explains.

Speaker 6

04:28

Not everybody's registered to vote, and not everybody owns a car, you know, has a driver's license. The problem is, when we use voter registration or DMV records, we're probably excluding around 35 percent of New Orleans.

Speaker 1

04:40

Right. 35 percent of people are excluded there. And being registered to vote and owning a car doesn't affect whether you're qualified to serve on a jury, it just affects how much money you probably spend on bumper stickers. Bumper stickers, think of them as traffic Twitter.

Speaker 1

04:56

That's not a compliment. And the exclusions don't stop there. Most states ban people with felony convictions, and with juror pay being incredibly low, lower income people can be unable to afford to take part, both of which disproportionately exclude people of color. So inherently, the system is already biased.

Speaker 1

05:14

And that's before you even get into the mistakes that jury summoning systems can make, which, to be fair, can sometimes be pretty fun.

Speaker 7

05:22

I got jury duty. I said, what's jury duty? Summon for jury...

Speaker 7

05:27

Jury service. If you're picked, then you go up to the judge and then you say if they're guilty or not guilty.

Speaker 1

05:35

Yeah, Jacob got Jerry duty. And while I can't believe he found Casey Anthony not guilty, that's what he and his Jerry decided, and we just need to live with that. But some errors are significantly less fun.

Speaker 1

05:47

For instance, in Connecticut, it emerged that their jury selection computer program had accidentally read the D in Hartford to mean deceased. So for nearly 3 years, it never summoned anyone from Hartford, or indeed, New Britain, the second largest city in that district, because their list of names had been accidentally misplaced and was never entered into the program. And the thing is, those 2 missing cities accounted for 63 percent of African Americans in the district and 68 percent of the Hispanic population, Which is horrible. Because if you're gonna forget a town in Connecticut, why not forget Danbury?

Speaker 1

06:19

Because, and this is true, fuck Danbury. From its charming railway museum to its historic Hearthstone Castle, Danbury, Connecticut can eat my whole ass. I know exactly 3 things about Danbury. USA Today ranked it the second best city to live in in 2015.

Speaker 1

06:34

It was once the center of the American hat industry. And if you're from there, you got a standing invite to come get a thrashing from John Oliver, children included. Fuck you. Now, that Hartford error was made by the government's own system.

Speaker 1

06:47

But many courts actually contract out their jury selection to companies like these, who promise to run the process cheaper and more effectively. But private companies can be surprisingly unreliable. Take what happened outside Tulsa, Oklahoma, where a Black man was tried by an all-white jury drawn from a pool of 200 jurors without a single Black person in it, after the company handling jury selection accidentally excluded zip codes where 90 percent of its Black residents lived. Then there's Allen County, Indiana, where this company had a system that was programmed to work through an alphabetical list of townships and stop when it reached 10,000 names.

Speaker 1

07:24

Unfortunately, it turned out 75 percent of African-Americans in that county happened to live in Wayne township towards the end of the alphabet, meaning they had roughly half the chance of being included on a jury than a truly random system would have produced. So yet again, alphabetization fails us. I've said this for years, it's an ABC supremacist system that disrespects the better end of the alphabet. Because think about it, Z has got all the hotties.

Speaker 1

07:52

Zayn, Zoe, Zendaya, Zac Efron, and of course, Zonkeys, half donkey, half zebra. All sex. Now, the extent of that Indiana error only emerged when a man who'd been convicted there sued over the makeup of his jury, and his lawyer pointed out to the state Supreme Court just how lax the design process had been.

Speaker 3

08:13

It's not a glitch. It's not a glitch or a computer bug. It's programming determinations.

Speaker 3

08:19

These were codes, these were determinations that the programmer put into the program. He didn't, it didn't some bug or virus come and make the program go bad. It was bad because he made these decisions, and easily they could have been programmed another way. This is a part-time college student.

Speaker 1

08:36

That's true. That county's jury system was originally designed by a college student, whose previous job, incidentally, had been working at a head shop. And look, there are plenty of jobs that people with head shop experience are qualified to do.

Speaker 1

08:48

For instance, cleaning bong resin off an Ikea couch cushion, or going on a late night snack run to 7-Eleven and only getting 40 percent of what everyone asked for. I'm just not sure that programming a county's official jury list is 1 of those jobs. And whether the errors in these programs were deliberate or just careless, the result is the same. And I'd love to tell you mistakes like these are rare, but the truth is, no 1 knows how common they are.

Speaker 1

09:13

We only know about the examples that I've mentioned so far because of lawsuits that took years. Private vendors often won't reveal details about their systems, claiming their algorithms are a trade secret. And 39 out of 50 states provide no public access to jury data. So, your court system might have a massive problem.

Speaker 1

09:32

And until a nine-year-old shows up for a murder trial, no 1 would have any idea. And all of this is before jurors even show up for selection, at which point, things can get even worse. Because prosecutors tend to exclude black jurors. Sometimes out of implicit bias, but sometimes out of a bias that is pretty fucking explicit.

Speaker 1

09:52

Just watch this Philadelphia DA addressing a roomful of prosecutors in a leaked 1980s training video explaining which jurors they might want to avoid.

Speaker 4

10:01

Another factor, I'll tell you, if, you know, in selecting blacks, again, you don't want the real educated ones. Again, this goes across the board of all races. You don't want smart people.

Speaker 4

10:12

And again, but If you're sitting down and you're gonna take blacks, you want older blacks. In my experience, black women, young black women are very bad. There's an antagonism, I guess, maybe because they're downtrodden on 2 respects. They got 2 minorities, they're women and they're blacks, and so they're downtrodden on 2 areas, and they somehow, want to take it out on somebody, and you don't want it to be you.

Speaker 1

10:34

Okay, first, any white people who use the word black as a noun and not an adjective are pretty suspicious. Throw in that mustache and suddenly it feels like a Spike Lee period piece. And even putting aside the bigotry there, the only time it's acceptable to say, we don't want smart people, is in a training manual for selling LuLaRoe.

Speaker 1

10:53

Because if your business model is, sell 5,000 ugly leggings on Facebook to the people who hated you in high school, then yeah, you're gonna want to weed out the smart people. Now, we reached out to that prosecutor who was very upset, saying... Even though he agreed that... Something slightly undercut by the fact that...

Speaker 1

11:17

And B, a later review of felony cases that he tried found he'd removed black jurors at such a high rate, the odds of it happening by chance were 1 in a quadrillion. And that guy is not a one-off. Recent studies in North Carolina and Louisiana found prosecutors striking Black jurors at twice and 3 times the rate of White jurors. And if you're wondering how they were able to do that, it's probably worth knowing that in a trial, lawyers have 2 ways to remove jurors.

Speaker 1

11:45

The first is a so-called challenge for cause. That's where they can show that a juror can't be impartial because of some connection to the trial, or because they were somehow unfit to serve. The second is a peremptory challenge, where they can remove a limited number of jurors with no explanation. Although, since a 1986 Supreme Court ruling, they can't exclude jurors purely based on race.

Speaker 1

12:06

It's something that this HLN host explains in a borderline, aggressively literal way.

Speaker 8

12:11

What happens is, the prosecution and defense each have 10 jurors each that they can reject for any reason at all or for no reason, unless they believe the other side is playing the race card. And they can then challenge that Preemptory challenge.

Speaker 1

12:31

Okay, I've got a lot of questions, and absolutely none of them are about preemptory challenges. First, why use the loaded term, playing the race card at all? Second, why imply it means acting in a racist fashion when it doesn't?

Speaker 1

12:45

But most importantly, how long did that man walk around with that race card in his suit pocket? Was it just for the show, or does he always walk around with it on the off chance that he has to explain preemptory challenges to someone? And if so, does he ever go to pay for something, accidentally pull out his race card, and then say, oops, That's not my wallet, that's my race card to the utter bewilderment of the cashier. Also, how did he get that card?

Speaker 1

13:05

Did he make it himself? Because that'd be weird. But it might actually be weirder if he'd asked someone else to make it for him. That would mean he'd ask the producer, hey, can you make me a race card for my segment on jewelry selection?

Speaker 1

13:14

To which she probably said, what do you mean? And he said, you know, like a physical card that says race card on it. And then the producer said, why? And he said, because I'm trying to explain lawyers playing the race card when striking jurors.

Speaker 1

13:25

To which the producer said, but can't you just say the phrase, playing the race card, or you know, not actually say it at all? And he said, absolutely not. So, a production assistant then had to spend 20 minutes printing the words, race card, on a red card. Is that how it came to exist?

Speaker 1

13:39

And what happened to it after the show? Did he throw it away, or did he put it on his desk just in case he ever needed it again? And if so, did someone ever walk by and say, hey, what the fuck is that? To which he replied, oh, that's just my race card, as if that's a normal thing to say or to have.

Speaker 1

13:52

And finally, and I know this isn't the most important thing, why does it say race card on it? It's already a card. Shouldn't it just say race? Because isn't the thing he's actually holding up there technically a race card card?

Speaker 1

14:03

And if so, what the fuck does that mean? I've got so many questions about this, and I know we don't have time, but I guess my broader point is there are 2 ways for lawyers to strike jurors, and HLN is a deeply weird television network. But while the Supreme Court said that you can't strike jurors based on race, it turns out that's a pretty easy rule to get around. All you have to do is just come up with some reason other than race to strike a juror and then do it anyway.

Speaker 1

14:29

Remember that lawyer that you saw earlier? He was speaking after that ruling was handed down, and was openly instructing prosecutors on how not to get caught.

Speaker 4

14:37

Let's say you strike 3 blacks to start with, the first 3 people, and then it's like the defense attorney makes an objection saying that you're striking blacks. Well, you're not gonna be able to go back and say, well, make something up about why he did it. Write it down, right then and there.

Speaker 4

14:50

So sometimes, under that line, you may wanna ask more questions of those people, so it gives you more ammunition to make an articulable reason as to why you're striking him, not for race. Wow.

Speaker 1

15:00

It's pretty bizarre to see a government official so flagrantly teaching people how to do something illegal. It's like if How to Get Away with Murder was an educational series where Viola Davis explains how to literally get away with murder. Which she'd absolutely crush, by the way.

Speaker 1

15:15

I'd gladly watch multiple seasons of her describing in vivid detail how to dismember a corpse and dissolve the body parts in acid. And look, to this day, prosecutors use a wide variety of bullshit reasons to strike Black jurors. Some of which are just flat It's ridiculous. Like saying jurors were...

Speaker 1

15:43

In fact, just listen to this public defender describe a juror strike that he once saw.

Speaker 4

15:48

I had a juror, an African-American woman, who was actually excluded because she was wearing what's called a puffy coat.

Speaker 1

15:55

Yeah, she was excluded for wearing a puffy coat. And a jacket should never be an acceptable reason to exclude someone from a jury, unless it's the 1 that posts Malone War to the American Music Awards. He looks like he's supposed to jump out of a cake at a mariachi-themed gender reveal party.

Speaker 1

16:11

And if you want to see the lengths to which prosecutors are willing to go, Just look at the multiple murder trials of Curtis Flowers in Mississippi. His case made it all the way to the Supreme Court, which decided that his prosecutor had repeatedly and blatantly tried to whitewash the jury. And that opinion was written by maybe the last justice you'd expect.

Speaker 9

16:31

Justice Brett Kavanaugh wrote that a white Mississippi prosecutor's goal was to have an all white jury decide the fate of an african american man accused of murder, which is unconstitutional. The court's newest justice said that District Attorney Doug Evans waged a relentless determined effort to rid the jury of black individuals. It was Curtis Flowers' sixth trial for the same quadruple murder.

Speaker 9

16:54

Kavanaugh pointed to a pattern, noting that Evans had removed 41 of the 42 prospective black jurors over the 6 trials.

Speaker 1

17:02

41 of 42 jurors. You know you're doing something wrong when it's so flagrant. Even Brett Kavanaugh has a problem with it.

Speaker 1

17:11

A man who's done exactly 2 good things in his life, this decision, and making it acceptable to spend your entire job interview screaming and crying. And it wasn't just how often that prosecutor struck Black jurors, it's how blatantly he did it. Because while on average, he asked the white jurors who were seated 1 question, he asked the Black jurors he struck 29. And how do you ask anyone that many questions about anything?

Speaker 1

17:36

That is too many even for a first date who's desperately trying to keep the conversation going. Let's see. I've asked about where you grew up, what you do for work, whether you like your job, whether you have any siblings, whether your siblings are older or younger, what you'd like to do for fun, what kind of music you like, what else is there? Do you like rakes?

Speaker 1

17:53

And a prospective juror in 1 of Curtis Flowers' trials felt pretty clear about why she'd been struck.

Speaker 10

17:59

They just told us they didn't need us. I think they might have assumed that because I was Black that I was gonna agree with that he was innocent just by the color of his skin, but I actually would have listened to the evidence and had an open ear. I actually was looking forward to serving.

Speaker 1

18:14

Look, It is ridiculous to assume that a juror would be biased just because the defendant is the same race. Of course a black person can be impartial when the defendant is black, in the same way that I could be impartial if the defendant was an owl. To suggest otherwise is extremely insulting, not just to myself, but to all owls.

Speaker 1

18:32

And these decisions have consequences. Curtis Flowers spent 20 years on death row and is currently out on bail awaiting a potential seventh trial. So, taken all together, it's pretty clear that from how we decide who serves to how the list is administered through who we let lawyers select, we are making a mockery of the phrase, a jury of your peers. Because who exactly is the you there?

Speaker 1

18:53

The defendant's peers or the prosecutor's peers? That's a pretty big difference. And as we've seen, the impact of having people in a jury room who can speak to what being black in America is like and how that might affect your relationship with law enforcement can be hugely beneficial. And yes, that might make a prosecutor's job a bit more difficult, but the role of a court is not to make it fucking easy by having cases heard by only a group of white people.

Speaker 1

19:17

Or to use the proper collective noun for that, a whole foods. I'm serious, try it in a sentence. Look at that gaggle of geese flying over that whole foods of Abigail's. So how do we fix this?

Speaker 1

19:29

Well, there are 4 basic steps we could take. 1, broaden jury lists so they don't exclude large sections of the community. Some have suggested using income tax lists, for instance. 2, make that data public so we can see if there were errors in compiling potential jurors.

Speaker 1

19:43

3, increase juror pay so that people who miss work don't suffer financial hardship. And finally, reform the process behind preemptory challenges to make it more practically difficult to strike jurors by race. And while, yes, this is a lot of work, it is worth it. Because as we have discussed before on this show, Every gear in the criminal justice system is unfairly biased against people of color.

Speaker 1

20:05

From policing, to bail, to the shortage of public defenders, to punitive sentencing, to incarceration, to reentry from prison. And this is yet another to add to that depressing list. Because right now, too often, our current system would systematically weed out a qualified person who actually wants to serve, and leave in someone who aggressively doesn't, because he can't watch HBO and fuck in the jury box.

Speaker 2

20:30

You