How Is It Still Possible for a Jury in South Carolina to Have Just One Black Member?
A 19th century jury, as depicted in 1861 by John Morgan in Wikipedia
Sociologist James W. Loewen is the author of Lies My Teacher Told Me.
I wrote this essay the day after the hung jury in the trial of Michael Slager, the police officer in North Charleston. Slager repeatedly shot the Black driver, 50-year-old Walter Scott, until he was dead, even though the reason for the stop was a broken taillight, and even though Scott was running away from him, after an initial scuffle. The jury had eleven White members and one African American.
How is it possible, one might ask, for a jury in North Charleston, South Carolina, to have just one Black member?
Way back in 1969, I testified as an expert witness in Yazoo County, Mississippi, about the racial composition of its juries. Venires — the pool from which actual juries are drawn — were supposed to be selected randomly from the population of registered voters. Each jury comprised fourteen people — twelve jurors and two alternates. The two were told they were alternates at the end of the trial, just before the jury retired to deliberate. This ensured all fourteen would pay attention throughout the proceeding. Usually the alternates were happy to be excused. It was a good system ... on paper.
In operation, however, juries in Yazoo County kept coming out with two or fewer Black jurors out of fourteen. Indeed, this had happened seven times in a row! Moreover, the two Black members often were the same two people! Neither of these outcomes was likely or even possible by chance, which is why I put exclamation points after them.
This Yazoo County case was my first of more than fifty cases as an expert witness. It was perfect for a beginner, because my job was to make the statistics clear to laypeople, including the judge. In class, professors use coin flips to get students thinking about probability. The voter registration roll in Yazoo county happened to be 50% Black, 50% White, perfect for the coin flip analogy.
The probability of getting two heads (or fewer) in fourteen flips of an unbiased coin is about .006. Try it yourself, if you don't agree. If you flip a coin fourteen times, then do so again, and continue a thousand times, you will get two heads (or fewer) about six times — not very likely. Statisticians, social scientists, and historians use the "1% level of significance" to say that a hypothesis — in this case, race influenced jury selection — is solidly confirmed. That's one in a hundred. This one result beats that standard.
The probability that two consecutive series would come out this way is .006 times .006 or .000036, fewer than four times in 100,000. The likelihood that seven consecutive juries would have no more than two African Americans each is less than once in 4 billion, or .00000000025. Impossible!
Our magistrate was a stereotypical White Southern judge: old, biased, incompetent. During my testimony, he even nodded off a couple of times, jerking back to consciousness when he heard the word "Objection!" Then he would peer down from the bench. If their side had objected, he would say "Sustained," if ours had, "Denied."
He was awake, however, when I reached the crux of my testimony, which was that juries as White as those drawn in Yazoo "could almost never happen by chance — the likelihood is less than one time in four billion."
Excursus 1: At this point, I must pause to denounce my own attorney. In my experience, most civil rights lawyers, especially those working for the Lawyers Committee for Civil Rights, ACLU, NAACP, "the Inc. Fund" (NAACP Legal Defense and Education Fund, Inc.), and the DOJ are hardworking, idealistic, intelligent, and knowledgeable. Our team in this case included three different civil rights lawyers, because this was a test case designed to break open the unreasonable White bias of jury selection across the state. Unfortunately, the lead attorney knew himself to be intelligent, so he did not bother to prepare. The drive from Jackson to Yazoo City provided us with an hour together in the car, with someone else driving, so I suggested we might review my testimony. He could not be bothered.
I had supplied him with an outline of what I would say, and of course he was able to ask my name and address competently, explore my educational background and qualifications, and ask what data had been provided me — in this case, the racial composition and names of the last seven empaneled juries in Yazoo County. Unfortunately, he then went off the rails and found himself asking me to do something no expert should ever be asked to do by his own attorney: make new calculations on the stand.
For instance, he asked, "What is the likelihood of getting exactly two Black jurors, rather than two or fewer?" That is a silly question, because if a jury came in with just one Black, that would certainly show support for the same hypothesis that two Blacks showed, namely White bias. It also requires the expert to calculate the probabilities of just one and of no Black juror and then subtract those minuscule numbers from the also minuscule likelihood of getting two or fewer. Hard to do, error free, with at least a dozen people watching and waiting.
Luckily, I had at my disposal a brand new invention: an electronic calculator. Today's youngsters (anyone under the age of 70) have no idea how hard it was to do square roots before the electronic calculator (and it was uphill both ways!). One had to use slide rules, which provided via physical methods approximations to three decimal places, or even worse, Monroe electro-mechanical calculators, which had to be tricked into doing approximations of square roots. In 1968, just two electronic calculators were available in the United States. Each did the four basic calculations — addition, subtraction, multiplication, and division — and would do square roots if you poked "divide" and then "equal." Each had a memory. Wang made one, which was a base station about the size of the stand-on-the-floor computers of twenty years ago, to which four different calculator keyboards attached. It cost $5,000. Sharp made the other, a stand-alone unit the size of a large laptop computer of today, for $1,300. I had made the purchase of the latter a condition of my employment at Tougaloo College, because I knew I did not want to have to teach my students in "Methods and Statistics of Social Research" how to use a Monroe calculator. According to the distributor, ours was just the third electronic calculator in the state, and when I brought it out in the courtroom it caused quite a stir.
Nevertheless, calculating the answer to my attorney's aimless queries misused the court's time, irritating both the judge and me. Then, when I reached my core finding, my attorney asked a question that revealed he did not understand for a moment the nature of statistical probability. The racial disparity would happen by chance "less than one time in four billion," I said, and he asked, "How much less?!"
This is akin to asking someone who has compared a single grain of sand to a cement truck to discuss portions of the grain of sand. I wanted to reply, "Look, you ignorant unprepared idiot, you cannot get "much less" than one in four billion," but I did not see how that would help our case, so I simply said, "Oh, much less."
The other side was equally flummoxed by my testimony. They knew it had damaged them, but they had not engaged an expert of their own, and even if they had, s/he would have to abide by the laws of statistics. To disparage my testimony, they tried to disparage me. "Where are you from?" was the prosecutor's opening question on cross-examination. "Tougaloo College, Tougaloo, Mississippi," I replied, as I had at the beginning of my direct testimony. "No, I mean where are you really from?" he retorted, referring to my outsider status in Mississippi.
"I don't understand the question," I replied, although of course I knew exactly what he was driving at, and looked beseechingly at the judge.
"You'll have to rephrase," the judge grudgingly told the prosecutor.
"Where do your parents live?" he asked.
"Decatur, Illinois," I replied. And now I lied, for the first and only time ever, in court: "That's in southern Illinois." Actually, Decatur is in central Illinois. I could not resist.
Soon his questions dwindled to a close. But it turned out that all my testimony went for naught, because to the surprise of all the attorneys in the courtroom, the jury hung. Even more surprising, it did not hang 10 to 2 for conviction of the two Black defendants, but 7 to 5. For the first time in memory in Yazoo County, some White jurists had voted to acquit a Black defendant.
To understand this occurrence, you need to know the nature of the charge. Yazoo City was in the midst of a boycott. Its downtown merchants had uniformly refused to hire any African Americans as sales clerks or cashiers. The only job Blacks could get was janitor. Yet the stores relied on their Black clientele. Worse, African Americans could not try on clothing, not even hats. They could buy, but they were not allowed to use the changing rooms. Civil Rights leaders were tired of such dehumanizing treatment and urged the Black community to shop in Jackson, an hour away. Conditions there were no better in some stores, but at least boycotting gave the Yazoo City Black community some leverage.
Saturday was the big shopping day in the Mississippi Delta, so each Saturday high school students walked the streets, talking with Black shoppers, trying to persuade them to go to Jackson. A deputy sheriff overheard two young Black males in conversation, one saying to the other, "If they [the merchants] don't give us something, we're gonna shut this mother-fucking town down." "You're damn right," replied the other. It happens that Yazoo City had a municipal ordinance dating from the nineteenth century making it illegal to curse on the streets, so the deputy called for backup and arrested the two young men. Now they were on trial.
Our attorneys asked that all witnesses be sequestered. They then asked the sheriff if he had ever sworn while on duty. He admitted he had. Then they put the deputy on the stand and asked if he had ever sworn while on duty. "Of course not," was the response. "Have you ever heard Sheriff ________" swear on duty? "Oh, no," came back. Then our attorney asked the court reporter to read back the sheriff's testimony, where he admitted doing so. "Would you like to amend your testimony?" the deputy was asked. Well, maybe once or twice, came back the reply. "Did you arrest him?"
A few other exchanges made clear the arrant silliness of the prosecution's case, affording Black jurors the courage to vote for acquittal and even persuading three White jurors to do likewise. Unlike the South Carolina matter, it was obvious that the case would not be retried, so justice had been served. Unfortunately, however, my testimony about the jury system was now moot. There was nothing to appeal.
As a result, a few months later I found myself in Wilkinson County, in the far southwest of the state, testifying all over again. Luckily the incompetent civil rights lawyer had gone back home to the North. The voter registration roll in Wilkinson was at least 70% Black, yet juries still wound up majority White, time after time. This time the judge was quite interested in my testimony, and although he did not decide the case then and there, he asked me afterward, "Most counties in Mississippi would show this kind of disparity, wouldn't they?" I think he did rule eventually that the juries would have to be redrawn.
It took years for White biased juries to be eliminated in all counties in the state. Indeed, probably they have not been, just as they have not been in Charleston County, South Carolina. Even when venires are actually drawn fairly from the underlying population, attorneys can use challenges to strike African Americans. Each side only gets a limited number of what are called "peremptory challenges" — for which no reason need be given. But each side gets an infinite number of challenges "for cause." If a prospective juror in the Charleston murder case was married to a police officer, for example, s/he got excused for cause. In Mississippi, some judges leaned toward letting the simple fact of being African American comprise a special interest group, so lawyers could excuse at least some African Americans for cause. Others got dropped via peremptory challenges.
Four years later, juries were still overwhelmingly White by design in many Mississippi counties. It seemed that each county had to be attacked individually. In 1973 I was again the expert witness in the criminal trial of two African Americans charged with theft in Hinds County, home of Jackson, the state capital. A private attorney had engaged me, W. S. Moore, who had graduated from Ole Miss Law School back in 1954. Very few White Mississippians of that generation showed the courage or idealism to defend Black clients in the early 1970s. William S. Moore had been part of the White establishment, but now word was that he had had a conversion and was working for justice for all. He had even changed his name, now going by W. Sebastian Moore, or "Sea-Bass" in the Black community. In Hinds County, as I recall, even the venire was biased, compared to the proportion of African Americans among the registered voters, which again was close to 50%.
Again, my testimony was telling, and when we all got on the elevators at the lunch break, the two prosecutors vented their frustration on Moore. "What are you doing, being in this case?" one asked. Moore answered forthrightly, "Well, now, you have to understand, my clients ain't nothin' but a pair of nigger crooks." The other attorneys were astonished that a lawyer would speak thus of his clients. Then Moore let the other shoe drop: "But you still should let Black folks be on juries." The two sentences, including the two very different terms for African Americans, were in their way perfect, contrasting the old and the new, the setup and the kill.
Excursus 2: I began by saying I wrote this essay the day after the hung jury in North Charleston. That was December 5, 2016. On that date I also sent a letter by U.S. mail to Atty. Moore, who I had found was still living, still near Jackson, Mississippi. I told him I considered him "a remarkable case of a white Mississippian who 'saw the light' and became a crusader for justice." I also noted that he "understood the statistics I used and were fine to work with." I attached this essay and said, "If you wish, I can change your name completely, so no one would think it might be you." I know Mr. Moore to be elderly and think he recently moved to assisted living, so I do not know that he received or considered my letter. Since I cannot imagine that my praiseful account of his work might offend him, I decided not to edit out his name.
Across the United States, we have made some progress in jury selection. Since 1986, "Batson challenges" can be filed against the racial use of peremptory challenges, for example. Still, we will do well to examine the racial and ideological makeup of our juries. In any jurisdiction where African Americans are in a small minority, it's easy for prosecutors to use their peremptory challenges to exclude them totally from juries. Then defendants are not being tried before a "jury of their peers," the legal requirement, which means a reasonable cross section of the community, just as the defendants were not in North Charleston, Yazoo City, or Hinds County.
Such exclusion may play a role in the astounding racial imbalances in the criminal justice systems in Wisconsin, Minnesota, Iowa, and Nebraska. Those states annually show up as incarcerating about nine times as many African Americans as European Americans, compared to their proportions in the population. In Mississippi, the imbalance is only about two and a half to one. To be sure, juries in white states (to say nothing of sundown towns) will always be overwhelmingly white. Nevertheless, the presence of one person of color, compared to none, still has an effect. Often it causes a difference in tone, in rhetoric, just as Donald Trump would probably not use his "locker room" rhetoric in a group of men that also included a woman.
Another source of jury imbalance comes from the measures that Republican state legislatures have passed to make it harder to register to vote. Since jurors are picked from the universe of registered voters, whitening that universe also whitens juries. This is yet another reason to undo the voter-suppression measures that so many states, North as well as South, have passed in the last few years.
Who would have thought we still have to win, in 2017, the victories won in Mississippi more than 40 years ago!
Some courts use a three-step process, choosing venires from the underlying population, then dividing the venire on a given day into two or more panels if two or more courtrooms are in session, and then choosing actual jurors after calling groups from the panel into the courtroom for general instructions and questioning.
Copyright James W. Loewen
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