Toward the end of jury selection in Minnesota’s ISIL recruitment trial last week, a young high school teacher and baseball coach who was a potential juror paused and took stock of the emerging panel. The group, he said, was “steeped in whiteness.”
He wasn’t the only one, inside the courthouse or outside, to note the wide demographic gulf between the all-white jury and the three defendants — Muslim, black and born into a refugee community — in this landmark trial of terrorism recruitment.
The impact of race on jury fairness has been studied for decades — and has drawn close attention from federal judges and court administrators in Minnesota. The question turns out to be full of surprising nuance — and is anything but black and white.
“I think it would be a challenge to get a jury that considers all the factors when the jury is all white,” said Twin Cities defense attorney Larry Leventhal, who is not involved in the trial. But, he added, “that does not mean a white jury cannot render a fair verdict.”
U.S. District Judge John Tunheim said he couldn’t discuss the current terrorism case, but observed: “Overall, my experience is Minnesota juries … take their responsibilities very seriously and they carefully evaluate the evidence, and reach fair verdicts.” He said there are many instances where minority defendants were acquitted when there were no minorities on the jury.
The issue of objectivity was clearly on the mind of Judge Michael Davis, who is presiding over the trial. Davis questioned some 100 prospective jurors aggressively last week, seeking to root out bias. Davis, the state’s first black federal judge and a veteran of previous terrorism trials, has built a reputation of pressing for more court diversity.
“Have you come in contact with minority groups?” he asked the prospective jurors. “Any negative experiences with African-Americans or people from another country, like say, Somalia, East Africa, Ethiopia and Kenya?”
Davis wound up excusing 10 jurors on the first day who said they couldn’t be impartial on terrorism charges. One white woman said she was uncomfortable even being in the room with the defendants. Another white woman was dismissed after she recalled an experience where a person of color “spoke bad” to her and added she had strong feelings about terrorism. A young black woman was excused after a private conference with Davis and attorneys from both sides.
At the same time, Davis told potential jurors: “You’re not a bad person if you have strong feelings one way or another.”
Ex-prosecutors interviewed by the Star Tribune said they believe all-white juries can issue fair verdicts in trials with minority defendants.
“I know Judge Davis is very focused on those issues, and I know if Judge Davis had any doubt of that, he would have dealt with it,” said former U.S. Attorney Tom Heffelfinger. “I am also confident that the defense lawyers, if they had any doubts, would have raised the issues through pre-emptory challenges or challenges for cause.”
Some defense lawyers — and some members of Minneapolis’ Somali-American community — were more dubious.
“We wish the jury would have some diversity,” said Ayan Farah, mother of Mohamed Farah, one of the defendants. To have no juror of color, she said through an interpreter, raised the question of what “kind of justice the family can expect. But we are hoping these jurors will see some of [the defendants] could be their brothers and sisters.”
Kamal Hassan, founder of the Somali Human Rights Commission, said he is also worried. “That concerns me a lot that this jury [is] all white … but I hope the truth to be let out,” he said.
Dan Scott, former chief federal public defender, said a key issue is not simply race, but the jury’s ability to comprehend what was in the defendants’ minds.
“When you have a jury drawn from the suburbs or the farms, and you’re asked to figure out what’s in the heads of [defendants] who are from an entirely different segment, it is a very difficult job … .
“You’re dealing with a group of young men who are first-generation Americans caught between two worlds,” Scott added. “Maybe these kids are dedicated revolutionaries, maybe they are just confused and we don’t know that, and the jurors have no feel for it.”
Scott said he represented a Somali woman in a previous terrorism trial where a jury of no blacks and one Asian found her guilty. In another trial, a jury with two blacks convicted a Somali man, said defense attorney Jon Hopeman.
Hopeman said the problem is not racial composition of juries, but the government invoking the word terrorism.
“It is very difficult for any defendant to overcome the initial shock of a juror who is sitting on a terrorism case. They show pictures of dead bodies and … that is a very difficult moment for a defendant.”
Years of research published in law journals shows a surprising amount of nuance:
•A 2006 study by Samuel Sommers, using mock juries, found whites in a diverse jury group more lenient toward black defendants.
•A 1979 study by J.L. Bernard found blacks on mock juries much more likely than whites to reach a not-guilty verdict, regardless of a defendant’s race; white jurors who found a black defendant guilty on the first ballot held to that decision and were not influenced by group discussion.
•A mock jury study by Sommers and Phoebe Ellsworth in 2001 found that “white jurors are more likely to demonstrate racial prejudice in cases without salient racial issues. When race was made salient … whites demonstrated no signs of discrimination, apparently because the racial content of the trial activated a motivation to appear non-prejudiced.”
•A 2001 study by William Bowers, Benjamin Steiner and Marla Sandys found that the more whites there were on a jury, the harsher the jury was to nonwhite defendants.
The Supreme Court speaks
Federal courts in Minneapolis and St. Paul must draw jurors from the district’s two southern divisions, roughly the southern half of the state, which is overwhelmingly white.
Using voter registration rolls, driver’s licenses and state ID cards, potential jurors are picked by random computer draw, then sent questionnaires by the federal district court to determine eligibility, which includes being 18 years of age or older and a U.S. citizen.
In 2012, it found that 87 percent of jury respondents drawn from the region that includes Minneapolis were white, compared to a population that was 90.3 percent white; and 3.4 percent were black, compared with 4.7 percent of the population that was black. By comparison, in Hennepin County, which is far more diverse, 19.3 percent of the jurors serving in state court in 2013 were minorities.
Federal case law on the issue is quite clear. The U.S. Supreme Court decided in 1975 that juries must be drawn from a source that fairly represents the community, but with no requirement it mirror racial makeup. In 1986 it ruled a pre-emptory challenge can’t be used to exclude a potential juror based on race.
“If you define fair as following both substantive and procedural due process of law, the answer is yes, they can get a fair trial,” said Joseph Daly, an emeritus professor at Mitchell Hamline School of Law. “If you define fair as decisionmaking by people who look like you and [are] culturally similar to you, the answer is no … .
“But the standard we are using is the U.S. Constitution and as long as a person gets substantive and procedural due process at trial, that’s sufficient.”