Jeannine Bell |10:33 p.m. ET March 16, 2017
Racial breakdown of jury can influence justice.
Stopped after leaving a class, Terence Crutcher, 40, was holding his hands up when Tulsa officer Betty Shelby shot and killed him in September.
Walter Scott, 50, stopped for a broken taillight in North Charleston, S.C., was running away when officer Michael Slager shot Scott in the back and killed him in 2015. A video shows Slager either throwing or dropping a Taser near Scott’s motionless body.
Both cases will appear before state juries this year — Shelby’s for the first time in May, Slager’s for a retrial (after a hung jury) in August. Both cases prove the crucial role that racial diversity plays in jury selection and, more important, how implicit biases can continue to shape the justice system for black men long after a police encounter.
How should a juror make decisions in these cases?
The hard data on why this matters is sobering. Black men are shot by police at racially disproportionate rates. It’s not just the use of force. Racially disproportionate police stops, searches and other practices show that many officers believe that black men are always suspicious, despite data that show them to be less likely to have drugs than whites who are searched.
If past is prologue, juries will have to grapple with these issues for years to come.
Few Answers In The Law
Jurors do not have as much help from the law as they might like. The law allows law enforcement to use deadly force if a suspect poses an immediate threat to the officer or to others. In addition, the prosecutor must convince the jury that the officer did not reasonably fear harm before he used deadly force. There is often conflicting evidence regarding whether the officer’s behavior was reasonable. Slager, who shot Scott, argued that he was worried that Scott would turn around and charge him.
The first jury of 11 whites and one black in Slager’s case struggled for several days, and ultimately was unable to come to a decision. When interviewed after the trial, the jury foreman revealed that the problem was bigger than the one juror who had told the judge he couldn’t vote for conviction. Five jurors still had doubts about Slager’s guilt and were not certain how they’d vote. In other words, roughly half the jury who saw the video of Scott being shot in the back from roughly 18 feet away, and saw the officer appear to toss what looked like a weapon near the dying man, still believed that Slager’s fear could be reasonable.
Local activists had worried that having only one black juror might make it difficult for the prosecution to convict Slager. The result in his case might feel a bit familiar. We saw a similar result in the case of University of Cincinnati officer Ray Tensing. The 10 whites and two blacks on that first jury were unable to make a decision in the shooting of Sam DuBose. That case also ended in a mistrial.
Police Must Be Held Accountable
The jury members on the Slager and Tensing cases who were not in favor of conviction may have been asking themselves whether they might have made the same decision to shoot as the officers had. Their decisions might have reflected how they personally felt about police. Like almost everything else in our society, race matters in citizens’ views about law enforcement. The majority of whites, nearly 60%, have a great deal or quite a lot of confidence in police; less than a third of blacks in the U.S. do, according to a Gallup Poll.
When considering whether an officer’s use of force is reasonable, jurors of any racial background could also allow their own fears of black men to influence their decisions. But those jurors need to make a critical shift in their thinking. Whether or not they would have made the same decision as an officer who might have acted on implicit bias is simply the wrong reference point. When making the decision about reasonable fear, jurors should not ask themselves, “If I were the officer, would I have been scared?” Instead they should ask, “If I were the officer, should I have been scared?” Or, “Would I have been afraid if the driver had been white?”
In too many recent cases, jurors seem to have uncritically accepted the belief that it is reasonable to fear black men in situations where, statistically, white men are not equally feared. In instances of officer-involved shootings, decisions about guilt or innocence must be colorblind. Otherwise, we perpetuate a system that gives officers a free pass who make decisions based on racial bias.
Jeannine Bell is the author of Policing Hatred: Law Enforcement Civil Rights and Hate Crime.