As jury selection began Monday in the trial of George Zimmerman for shooting dead 17-year-old Trayvon Martin, news reports have swirled with commentary about the race of the jury. If Zimmerman can pack the jury with “white, conservative, pro-conviction jurors,” he increases his odds of winning on a claim of self-defense, defense lawyer Jose Baez told several news outlets.
The tragic death of Martin, a black unarmed teen wearing a hoodie, has sparked national controversy not just over the now-notorious Stand Your Ground law that initially thwarted Zimmerman’s arrest, but also over the role that race plays in this and other so-called self-defense killings, as even President Obama declared, “If I had a son, he’d look like Trayvon.”
But while race may be particularly relevant during this trial, it can play only a very limited role during jury selection. Although potential jurors’ views about race, racism, or related questions may be considered and are particularly important as the lawyers seek to root out bias, any attempt by the lawyers – veiled or otherwise – to eliminate jurors based on their racial identity, is unlawful and can be cause for a challenge to jury selection.
Here’s how it works: During jury selection, both the prosecutor and the defense attorney have the opportunity to question jurors and to exclude them in two ways. Jurors are rejected “for cause” where the lawyers have reason to believe they cannot try the case objectively. The parties can also reject a select number of jurors by “peremptory strike” whom they suspect hold an unfavorable bias. But when using their peremptory strikes, lawyers do not have to provide a reason, which makes it particularly difficult to root out when race or gender played a role in their calculations.
Under a formula set out in a 1985 Supreme Court decision, opposing lawyers who can establish reason to believe race played a role (such as no black jurors in a case, or a history of rejecting black jurors) can raise an inference of discrimination. If, for example, the prosecutor in this case can establish an inference that Zimmerman is explicitly rejecting non-white jurors, the judge will compel Zimmerman to provide a race-neutral reason for the rejection. These reasons, however, pass muster so long as they don’t exhibit intentional racial discrimination. Lawyers often use thinly veiled excuses to reject black jurors, such as “having relatives who attended historically black colleges; for the way they walk; for chewing gum; and, frequently, for living in predominantly black neighborhoods,” according to a 2011 Equal Justice Institute report on jury selection discrimination.
In Florida, state law actually imposes a slightly higher burden than even the federal standard, by requiring the judge to consider whether the race-neutral reason for rejecting a juror was “genuine” via several factors, such as whether other jurors gave similar answers during questioning but were not struck. This has led to some reasonable success, as state appeals courts have overturned 33 criminal cases in which prosecutors struck jurors based on race since the 1985 Supreme Court ruling.
But even under this standard, rooting out intentional jury discrimination has proved difficult where any race-neutral explanation exists. As a consequence, should George Zimmerman’s lawyers heed the advice of Baez or others during jury selection, they might succeed in excluding non-white jurors even in spite of the law.