Tanzina Vega: We've just been talking about the trial of Derek Chauvin the former Minneapolis police officer charged with murder in the death of George Floyd. As of this week, 14 people have been selected to serve on the jury. The identities of the jurors will remain anonymous throughout the trial, but we do know that they include eight white people, four Black people, and two people who identified as more than one race. Jury selection in the Chauvin trial has put a spotlight on the way we choose jurors across the country. Paul Butler is a former prosecutor and the Albert Brick Professor in Law at Georgetown University. Paul, welcome back to the Takeaway.

Paul Butler: Hey Tanzina. Great to be here.

Tanzina Vega: Not all of us have served on a jury. Not all of us have had the pleasure of being a reporter in the jury room like I have. A lot of folks, I think we could use a refresher on how juries are selected. It's a really strange process called Voir dire. How long can it take?

Paul Butler: When I did street crimes in DC, as a prosecutor, a Voir dire might take a couple of hours. In the Derek Chauvin case, it's three weeks almost. I've never heard of a Voir dire that long. In part, it's because the jury has to be found to be impartial and fair. In that case, they're not expecting people who've never heard of the case. Almost all of the selected jurors had seen the video, but you have to find people who can be fair and impartial and only decide their verdict based on what's presented in court. In a typical jury selection process, there's a tension between the judge who has that goal of trying to get a jury that's impartial, objective and fair. The parties of course, are looking for jurors who are going to lean their way.

Tanzina Vega: Tell us about that tension because I've witnessed Voir dire and like I said, I've been a person who was selected many, many moons ago to sit on a jury. There are some instances where the prosecutor and the defense are both looking for people to really fit their interests. How much sway do they have versus the judge in the jury selection process?

Paul Butler: In a criminal case, each side gets a certain number of strikes that are called peremptory strikes, which they can use to exclude a prospective juror for any reason, other than race and gender. If there's a case to be made that a juror cannot be fair, she's biased, she can't be objective, she knows something about the case that she can't set aside, then the judge can exclude that prospective juror for cause.

Tanzina Vega: What are some red flags that prosecutors and defense attorneys are looking for when selecting a jury? You sort of touched on that just now, but in their strikes, can they say, "Oh, you have a prior criminal history or you are someone who knew the community where the person lived and died?" Where ultimately is the line so that you do preserve some-- By the way, Paul, I wonder if this idea of impartiality is really real or not. What are some real red flags for folks who might be attempting to get on a jury and defense and prosecution say, "Nope, that's definitely a no?"

Paul Butler: That's such an interesting question. In the questionnaire that went out to prospective jurors in the Chauvin case, one of the questions was, "Do you want to be on this jury?" Tanzina, I was really interested in how the judge would respond to a juror who says, "Yes, I do want to be on this jury." What purpose would she have?

The judge again, is looking for people who can be fair and only base their verdict on what the judge instructs them. As the parties look for people who they hope will favor their client, they're looking for clues. In the Chauvin questionnaire, the defense attorney would start out telling the jurors, this case is not about race and then he proceeded to ask a bunch of questions about race, how they feel about Blue Lives Matter, Black Lives Matter, bias in the criminal justice system.

You were looking for markers and again, the parties can exclude jurors for pretty much any reason other than race and gender. When I was a prosecutor, we were instructed to strike people who are very religious based on the concern that they might not want to sit in judgment on other people. We were also trained to try to exclude scientists based on the concern that they might have too high a standard of proof.

Tanzina Vega: You say that jurors can not be striked for race and gender, but Paul, you, and I both know that there are ways to get around that. They may not strike them for race and gender explicitly, but asking someone how they feel about Black Lives Matter, for example, might actually end up doing that. We're supposed to be judged by a jury of our peers. Is that happening in the Chauvin trial?

Paul Butler: It is. The judge did a very competent job of overseeing jury selection. This is the first high-profile trial of a police officer after the death of George Floyd. We have a jury that is actually more racially diverse than the city where the trial is taking place. That's very unusual. There's also a critical mass of Black jurors. We know that it takes more than one or two jurors to make a difference. The presence of at least four African-Americans and two multi-racial jurors could be significant.

Tanzina Vega: Paul, how realistic is this idea of impartiality? Journalists are supposed to have impartiality and I think it's almost a false possibility. Is it realistic that we really leave ourselves at the door? Are people able to do that?

Paul Butler: In jury selection in Chauvin case, defense often tried to get jurors excluded who said that they had concerns about bias in the criminal legal process or that they supported the movement for Black Lives. The claim was that those jurors somehow could not be objective. Jurors are told to evaluate evidence based on their life experiences. It's true that often people of color have different kinds of experiences with the police than many white people. The judge to his credit said that those experiences, the experiences of people of color are as valid as any other experiences.

Tanzina Vega: We know that juries historically are not really reflective of the diversity of this country. Do you see this as optimistic to jury selection going forward? Are you optimistic that this might be a signal to jury selection going forward?

Paul Butler: This is such a high-profile case. I think the diverse jury was very intentional on part of the judge. Again, the judge carefully policed the selection process to make sure that race wasn't a factor. That is not the case in the vast majority of trials. The Supreme court case that says that you can't use race as a basis to exclude jurors, it's called Batson. Batson is probably the most under enforced Supreme court case of all time. It asks lawyers to disregard race but lawyers often think race matters in terms of who a jury is. It's asking a lawyer to respect the constitution, even in a case where a lawyer thinks it might not be in the best interest of her client to ignore race.

Tanzina Vega: Paul Butler is the Albert Brick Professor in law at Georgetown University. Always great to have you, Paul. Thanks so much.

Paul Butler: Always a pleasure.

[00:08:13] [END OF AUDIO]

 

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