The Discreet Charm of the Mixed Jury: the Epistemology of Jury Selection and the Perils of Post-modernism

• Publication year: 2002
• Citation: Vol. 26 No. 02

SEATTLE UNIVERSITY LAW REVIEWVolume 26, No. 3WINTER 2003

The Discreet Charm of the Mixed Jury: The Epistemology of Jury Selection and The Perils of Post-Modernism

Peter J. Richards(fn*)

Introduction

One summer evening in August 1991, a Jewish driver struck two black children in the Crown Heights area of Brooklyn, New York, sparking an incident that exposed the raw underbelly of racial and ethnic tension in parts of America.(fn1) In the fracas that followed, an orthodox Jewish man was stabbed by a black man, Lemrick Nelson, Jr. Nelson was apprehended and tried in a New York State court for second-degree murder, among other charges. The jury acquitted Nelson of all charges in July 1992.(fn2)

Later, both Nelson and Charles Price, another black man involved in the melee, were charged in federal district court under a hate crimes statute for attacking Yankel Rosenbaum.(fn3) This incident, combined with the state court acquittal, generated considerable tension and political controversy over the case. The federal district judge quickly declared, in the early proceedings of the ensuing trial, that he sought to empanel "a moral jury that renders a verdict that has moral integrity."(fn4) In this regard, the district judge made some unusual decisions regarding jury selection, apparently in an effort to correct an imbalance caused by the disproportionate number of blacks in comparison to Jews on the panel. For instance, the judge denied a challenge for cause by the defense with respect to a Jewish juror who had expressed serious doubts about his ability to be fair and impartial in the case. In addition, the judge filled a gap created by an excusal by removing another juror from the panel and including a Jewish juror, along with a black juror, both of whom were selected out of the order prescribed by the Federal Rules of Criminal Procedure. The defense consented to the judge's reshuffling of the jury panel. At the conclusion of the trial, both defendants were convicted.(fn5) The Second Circuit reversed, citing the district court's violation of the Equal Protection Clause in its failure to carry out the jury selection process in a race-neutral manner.(fn6)

This case presents many elements of a persistent problem confronting courts as they attempt to maneuver between impartiality and fair cross-representation. In his zeal for seating a jury that could render a verdict with "moral integrity," the New York district judge succumbed to a temptation to which many courts have not been immune, placing such value upon a sense of balance as to go off the constitutional rails in a fruitless quest for subjective impartiality.

The first section of this Article will introduce the dynamics of the relationship between two competing visions of impartiality as it has played out in the opinions of federal and state courts, including secondary sources. I call the two approaches "modernist" and "postmodernist" and examine the arguments that have sought to broaden the scope of the fair cross-section requirement in the name of the latter view, a perspective similar to that motivating the district judge in the Crown Heights case. Part II identifies the Supreme Court's opening gestures in the direction of the "post-modernist" model. Part III carries the development forward, presenting the problems and tensions that have resulted in an uneasy and pragmatic accommodation between the older modernist model and its would-be post-modernist successor. This accommodation can be seen most plainly in the interplay of opposing theoretical and practical considerations that inform the jury selection process at two discrete points in time: an early (venire) and late stage (peremptory challenges) of the process. Parts IV and V will pause to examine one particular manifestation of what I designate the post-modern vision of jury selection; one ironically with roots in an ancient historical tradition that attempts to secure more solid theoretical foundations for community participation in juries. These efforts certainly do not lack good intentions. Moreover, the post-modernist critique provides some important insights into the inadequacies of the pure modernist paradigm. Still, it is my conclusion that moving in the direction of a more overtly post-modern model would be ill founded and could ultimately prove destructive, rather than restorative, for the institution of the jury and for civil society in general.

Just as the Second Circuit ruled in the Crown Heights case, the ills that "jury-mandering" seeks to resolve-whether in the name of identity politics, a post-modern desire to "balance the biases," or as an artificial mechanism for creating a more inclusive sense of community-the real deleterious effects of such attempts simply outweigh the putative benefits. This Article suggests in the concluding section that while further work needs to be done to identify a coherent epistemo-logical account of juror knowledge, the judiciary's navigation of the constitutional requirements of fairness and impartiality, along with equal protection, remains perhaps the best that can be done under the current circumstances.

I. Two Models of Juror Knowledge

The contemporary model that the "subjective impartiality" approach seeks to supplant, the "blank slate" ideal, competes with a model in which juror competence is viewed in terms of the individual's status as neighbor and peer, where abstract and absolute neutrality was not the goal; rather, a peculiar kind of "local knowledge" was considered more reliable and effective toward the achievement of justice.(fn7) Court opinions dealing with issues regarding jury selection reflect these competing versions of epistemological perspective, alternating between models reliant upon the modernistic conception of knowing based in a form of Lockean empiricism, to a "postmodernist" acquiescence in the impossibility of true impartiality,

which speaks profoundly about the nature of the deliberative function of juries in contemporary society. Thus, in the Lockean "modernist" model, the ideal "tabula rasa of the impartial juror" shapes the investigative, deliberative process of the trial:

The entire effort of our [trial] procedure is to secure . . . jurors who do not know and are not in a position to know anything of either [the] character [of the parties] or events [on trial] .... The zeal displayed in this effort to empty the minds of the jurors ... [is a sign] that the jury, . . . like the court itself, is an impartial organ of justice.(fn8)

In the microcosm of the criminal trial, it is the experience of facts as they develop in the course of trial that brings the knowledge necessary to the achievement of an effective deliberative process. Ideally, the phenomena of the trial, as well as the reflective process of deliberation-comparing and evaluating the myriad sense experiences accumulated throughout the course of the trial-constitute the legitimate sources of juror knowledge. Rather than forfeit neutrality by operating on the basis of externally obtained information, the juror's level of knowledge rises or falls according to the level of "experience" she accumulates within the microcosm of the trial.

Yet, in the pluralistic, post-modern world of the contemporary criminal jury trial, a more potent form of "tacit knowledge" is frequently recognized. Here, the limits of appropriate juror knowledge may be set according to categories assigned by identity politics. If juries are said to bring along residual cognitive baggage, it is with respect to their status as members of certain exclusive groups, according to an ideology of difference that strikes noetic barriers along lines of gender, race, ethnicity, religion, or even sexual preference.(fn9) Courts have strained to secure the inclusion of members of such disparate groups to ensure a truly representational cross-section of the community.(fn10) It is said that the unique knowledge such individuals bring due to their identification with and experience as members of such diverse groups allows for the "conscience of the community" to emerge in the course of the jury's deliberative process.(fn11) Thus, many courts are coming to consider this kind of intuitive knowledge to be a good thing, while the older notion of local knowledge-any extrinsically derived information about the case at hand, is an evil to be avoided, and the possibility of the kind of abstract neutrality represented above as the "modernist" model-is declared to be virtually non-existent.

While the motivations behind these innovations are well inten-tioned (i.e., inclusion of diverse, historically underrepresented groups; eradication of invidious forms of discrimination; and maximization of community participation in an important democratic function), there is a concomitant price that is infrequently addressed. The price comes indirectly, in terms of the public perception of the jury as an institution. The judicial ambivalence about the value to be placed on the types of knowledge and experience jurors bring into the courtroom, including the courts' inconsistency in setting the asymptotes to which jurors and the process for obtaining them are to approximate, has led to a profoundly unsettling confusion that has shaken the integrity of the institution itself. Moreover, the preoccupation with sending the right signals about gender, race, and other categories of identity...