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♪ ("LAST WEEK TONIGHT" THEME PLAYS) ♪
Moving on. Our main story tonight concerns jury duty.
A summons for which is one 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.
Complaining about jury duty has long been
a beloved American past time.
Just watch this caller to a 90's local TV show,
delights the host with his whining.
GREG: They put us down in this holding pen,
they call it "the jury assembly room."
-Yeah. -GREG: The J-A-R, the JAR.
They stick you in this JAR, with like 300 other people
-for a whole week. -Oh man.
GREG: And I think it's like being in jail only
jail is a whole lot better because jail is a lot cleaner
-and has much better lighting. -Oh.
GREG: And we have to pay for our own food,
and we don't get to go outside, and 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--
You don't get any of that stuff?
GREG: We don't get any of that.
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, 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
'Gregism's' like, "Environmentalism is evil,"
or "The Baptists are the pin in the Homo Grenade."
Incidentally "Gregism's," isn't even a term I made up,
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--
You know what, just one 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.
And read the room Greg!
No one has great hashtag-weekends anymore.
We're all sitting at home watching the days blur together
in a miserable hashtag-TIMESOUP.
But while it might sound cliché, serving on a jury really is
an essential civic duty. 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.
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 involved in race
and racial profiling.
Yeah. It turns out juries are sort of like
presidents of the Spokane, WA chapter of the NAACP.
When they're entirely white,
things tend to go south, fast.
And this is reflected in the real world.
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 rates is entirely eliminated
when the poll includes at least one Black member.
And that's one 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.
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. 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 license records.
But there's a big problem there,
as this public defender in New Orleans explains.
Not everybody's registered to vote,
and not everybody owns a car, and 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 Orleanians.
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.
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.
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.
I got "Jerry" duty.
I said, "What's 'Jerry' duty?"
"Summons for "Jerry"-- "Jerry" Service."
If you're picked then you go up to the judge and then you say
if they're guilty or not guilty.
Yeah, Jacob got jury 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.
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 three 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 two missing cities accounted for
63 percent of African Americans in the district,
and 68 percent of the Hispanic population.
Which is horrible! 'Cause if you're going to
forget a town in Connecticut, why not forget Danbury?
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 three things about Danbury.
USA Today ranked it the second-best city to live in
in 2015. It was once the center of the American hat industry,
and if you're from there, you've 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. 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 ten thousand names. 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.
'Cause think about it. 'Z' has got all the hotties!
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 had 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.
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,
for instance, cleaning bong resin off an Ikea couch cushion
or going on a late night snack run to 7-11
and only getting 40 percent of what everyone asked for.
I'm just not sure that programming a county's official
jury list is one 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 one knows how common they are.
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, and until a nine-year-old
shows up for a murder trial, no one 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.
Just watch this Philadelphia DA addressing
a room full of prosecutors in a leaked 1980's training video
explaining which jurors they might want to avoid.
Another factor, I'll tell you, if--
You know, in selecting Blacks, again,
you don't want the real educated ones.
Again, it's-- this goes across the board,
of all races, you don't want smart people.
Uh... 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. Uh, there's an antagonism
I guess maybe 'cause they're downtrodden
on two respects. They got two minorities,
they're women and they're Black,
so they're downtrodden on two areas,
and they somehow, uh, want to take it out
on somebody and you don't want it to be you.
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. 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... (READS PROMPT)
...even though he agreed that...
Something slightly undercut by the fact, that A,
you just heard him say, "young Black women are very bad"
and B, a later review of felony cases
that he tried found he removed Black jurors
at such a high rate, the odds of it happening
by chance were...
And that guy is not a one-off.
Recent studies in North Carolina and Louisiana
found prosecutors striking Black jurors
at twice and three 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 two ways to remove jurors.
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 the 1986 Supreme Court ruling,
they can't exclude jurors purely based on race.
It's something that this HLN host explains
in a borderline aggressively literal way.
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 peremptory challenge.
Okay, I've got a lot of questions
and absolutely none of them are about peremptory challenges.
First, why use the loaded term, "playing the race card" at all?
Uh, second, why imply it means acting
in a racist fashion, when it doesn't?
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 he has
to explain peremptory 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?
Did he make it himself? 'Cause 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 asked
the producer, "Hey, can you make me a race card
for my segment on jury selections?"
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, "'Cause I'm trying
to explain lawyers playing the race card
when striking jurors." 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? 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. 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 then the thing he's actually holding up there
technically a "Race Card" card, 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 two 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. 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.
Let's say you strike three Blacks to start with,
first three people. And then it's like
the defense attorney makes an objection
saying that you're striking Black--
But you're not gonna be able to go back and say--
make something up about why you did it.
Write it down, right then and there.
'Cause sometimes on that line, you may want to ask
more questions of those people, so it gives you more ammunition
to make an articulable reason as to why
you're striking them, and not for race.
Wow.
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.
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-out ridiculous. Like saying jurors were...
In fact, just listen to this public defender
describe a juror strike that he once saw.
I had a juror, an African American woman,
who was actually excluded because she was wearing
what's called a puffy coat.
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 one
that Post Malone wore to the American Music Awards.
He looks like he's supposed to jump out of a cake
at a mariachi-themed gender reveal party.
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.
REPORTER: 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...
It was Curtis Flowers' sixth trial
for the same quadruple murder. Kavanaugh pointed to a pattern.
Noting that Evans had removed 41 of the 42
prospective Black jurors over the six trials.
Forty-one of 42 jurors. You know you're doing
something wrong when it's so flagrant,
even Brett Kavanaugh has a problem with it.
A man who's done exactly two 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, "one question," he asked the Black jurors
he struck, "29." And how do you ask anyone
that many questions about anything?
That is too many even for a first date
who's desperately trying to keep the conversation going.
"Uh, let's see... I've asked about
where you grew up, what you did for work,
whether you like your job, whether you have any siblings,
whether your siblings are older or younger,
what you like to do for fun, what kind of music you like.
What else is there? 'Do you like rakes?'"
And a prospective juror in one of Curtis Flowers' trials
felt pretty clear about why she'd been struck.
They just told us they didn't need us.
I think they might assume that because I was Black
that I was gonna agree 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.
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 can be impartial
if the defendant was an owl.
To suggest otherwise is extremely insulting,
not just to myself, but to all owls.
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 through 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? 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 effect 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.
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 Abigails.
So how do we fix this? Well there are four
basic steps we could take. One, broaden jury lists
so they don't exclude large sectors of the community.
Someone suggested using income taxes,
for instance. Two, make that data public,
so we can see if there were errors
in compiling potential jurors.
Three, increase juror pay, so the people who miss work
don't suffer financial hardship.
And finally, reform the process behind peremptory 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've discussed
before on this show, every gear
in the criminal justice system is unfairly biased
against people of color. From policing, to bail,
to the shortage of public defenders,
to punitive sentencing, to incarceration,
to re-entry 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,
'cause he can't watch HBO in fucking the jury box.