BY: Emily Kim
Emily is a senior at Georgetown University studying Government and American Musical Culture. She is currently an assistant editor for the Georgetown University Undergraduate Law Review.
Jury selection plays a crucial role in criminal trials, and it is difficult to avoid the issue of personal biases even with the legal infrastructure established to circumvent this issue. March 9th marked the first day of jury selection in the trial of Derek Chauvin, the Minneapolis police officer involved in the murder of George Floyd last year on May 25th, 2020. He faced charges of manslaughter, second-degree murder, and third-degree murder—the last of which was reinstated by Judge Peter A. Cahill on March 11th.[1] On April 20th, Chauvin was found guilty of murder and manslaughter after the jury deliberated for over ten hours.[2] The jury selection process was not easy, however, with this being a high-profile case that could set a precedent for future similar cases.
The process is called voir dire, meaning “to speak the truth,” and it tests potential jurors’ prejudices and neutrality.[3] This is crucial to fulfilling the rights granted by the Sixth Amendment, which promises a “speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”[4] However, the reality of this abstract promise has been repeatedly challenged throughout the history of criminal trials, particularly and especially in the context of race.[5] It is an undeniable fact that Derek Chauvin’s trial involves the issue of racism, as the death of George Floyd sparked a nationwide Black Lives Matter movement for racial justice and against police brutality last summer. With this in mind, it is necessary to scrutinize racial practices in voir dire.
Peremptory challenges—which are limited and allow potential jurors to be excluded by the prosecution or the defense without the need for reason or explanation—have been contested for being racially discriminatory despite existing to eliminate bias.[6] In 1985, the Burger Court ruled in Batson v. Kentucky that “purposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure.”[7] Thus, a “neutral explanation” must be provided when a peremptory strike is challenged.[8] In a 1995 per curiam opinion in Purkett v. Elem, however, the Rehnquist Court held that the decision to strike a Black man on a peremptory challenge because “he had long, unkempt hair, a mustache, and a beard” is in fact “race neutral,” or a reason independent of the man’s race.[9] This arguably makes it easy to circumvent the requirements established in Batson and think of any “race-neutral” excuse to exclude a potential juror. Aside from peremptory challenges, prospective jurors can be excused for cause, and these challenges are limitless and can arise when they are deemed unqualified or unfit to be impartial.[10]
Because of the high-profile nature of this case, the jury selection process is particularly methodical, and parties involved were careful not to be racially discriminatory. Further, it is nearly impossible to find people who have neither heard about the case nor watched the gruesome video; therefore, the questioning was centered more toward determining whether potential jurors would set aside their biases.[11]
Of the individuals who have been selected, the majority are white, and many of them have either expressed uncertainty of Chauvin’s culpability or have shared that they would be open-minded, depending on the facts presented in the case despite holding certain opinions.[12] Concerns have arisen over the jury selection process; journalist Elie Mystal, who is a Black woman, believes that having a majority-white jury—which seems inevitable at this point—would result in a “perfunctory” trial that will end with a plea deal.[13]
Chauvin’s defense was permitted eighteen peremptory challenges, while the prosecution had ten.[14] The defense used fourteen of these strikes, including on a Hispanic woman who struggled with her English and on a Hispanic man who had martial arts training; while the prosecutors invoked a Batson challenge on the basis of race, Judge Cahill agreed with the defense’s “race-neutral” excuses.[15] On the other hand, the prosecution used the strike on a white man who said “people should not second guess police officers’ decisions” as well as on a white woman who expressed that she highly trusts the police.[16]
The vehicles through which either side can dismiss a prospective juror can pose issues of racial bias, but they are also somewhat effective in preserving the neutrality of the jury. Further, it is unclear how much the racial makeup of the eventual jury will impact the case’s outcome. That being said, the defense’s strategy will likely be to redirect some of the blame to the other inexperienced former officers involved, as well as to attribute the cause of death to Floyd’s drug use and underlying health condition.[17] Depending on the strength of the facts and arguments to be presented, having a majority-white jury made up of people selected largely because they do not express strong opinions on the racial aspect of this case could have made it difficult for Floyd to get the justice he deserves.
As the nation saw, however, Chauvin was rightfully convicted of murder and manslaughter. In his case, the transparency in jury selection and the trial in general ensured more fairness, tact, and impartiality, setting an important procedural precedent for future criminal cases.
[1] Nicholas Bogel-Burroughs, What to Know About the Trial of Derek Chauvin The New York Times (2021), https://www.nytimes.com/live/2021/derek-chauvin-trial-explained?name=styln-floyd-trial®ion=TOP_BANNER&block=storyline_menu_recirc&action=click&pgtype=Article&impression_id=&variant=show.
[2] Eric Levenson & Aaron Cooper, What we know about the jurors selected so far in Derek Chauvin’s trial CNN (2021), https://www.cnn.com/2021/03/10/us/derek-chauvin-trial-jurors/index.html.
[3] Voir dire, Legal Information Institute, https://www.law.cornell.edu/wex/voir_dire.
[4] U.S. Const. amend. XI.
[5] Shamena Anwar, Patrick Bayer, & Randi Hjalmarsson, The Impact of Jury Race in Criminal Trials, 17 The Quarterly Journal of Economics 1017 (2012), https://doi.org/10.1093/qje/qjs014.
[6] Id. at 1018.
[7] Batson v. Kentucky, 476 U.S. 79, 86 (1986).
[8] Id. at 98.
[9] Purkett v. Elem, 514 U.S. 765, 769 (1995).
[10] Challenge for Cause, Legal Information Institute, https://www.law.cornell.edu/wex/challenge_for_cause.
[11] Amy Forliti, Jury selection paused for ex-cop charged in Floyd’s death AP NEWS (2021), https://apnews.com/article/derek-chauvin-trial-jury-e4acea4516571b9c2af8cce685e221f2.
[12] Trial of Derek Chauvin, charged in George Floyd’s death, begins with jury selection, CBS News, https://www.cbsnews.com/news/derek-chauvin-trial-jury-selection-george-floyd-death-case/ (last visited Mar 11, 2021).
[13] Elie Mystal, The Acquittal of Derek Chauvin Has Already Begun The Nation (2021), https://www.thenation.com/article/society/chauvin-jury-selection/.
[14] Levenson & Cooper, supra note 2.
[15] Id.
[16] Id.
[17] Bogel-Burroughs, supra note 1.
