The shooting of Oscar Grant, an African American man, while he was handcuffed and lying face down on a train platform by a white Bay Area Rapid Transit (BART) cop in January, 2009 sparked renewed attention on the racial injustice system that some are calling the New Jim Crow.  This past week the trial of Johannes Mehserle started and the jury selection process seems to illustrate the (unconscious) and systemic racism in criminal law. The result: there are no African Americans on the jury in a trial of a white cop accused of killing an unarmed, handcuffed black man.   While some are suggesting that this trial breaks new ground because of the video footage from cellphones of bystanders who witnessed the shooting, the jury selection process suggests that this is another manifestation of the racial caste system.

(image from Flickr/cc: hensever)

Officially, it is against the law to discriminate on the basis of race in the process of jury selection.  In 1986, the Supreme Court in the Batson v. Kentucky decision, found that the Fourteenth Amendment prohibits prosecutors from discriminating on the basis of race when selecting juries.

Unofficially, however, racial bias in jury selection is rampant.  And, the Supreme Court and lower courts have tolerated all but the most egregious example of racial bias in jury selection, and this is usually put in practice through something called “peremptory strikes.”    Both prosecutors and defense attorneys are permitted to strike ‘peremptorily’ jurors they don’t like — that is, people they believe won’t respond favorably to the evidence or witnesses they intend to present at trial.  What this means in practice is that peremptory strikes are notoriously discriminatory.  In addition, jury pools tend to be disproportionately white for a number of reasons, including the felony-disenfranchisement laws that permanently exclude 30% of men from jury service for life.  Thus, the practice of systematically excluding black jurors has not been stopped by the Batson v. Kentucky decision.  What the law requires is that the prosecution must come up with a race-neutral, or “color blind,” excuse for who they exclude from the jury, which is an exceedingly easy thing to do.    (M.Alexander, The New Jim Crow, New York: The New Press, 2010, pp.116-120).

This trial brings with it a mix of feelings from powerlessness to a strong desire to see justice prevail.   Dr. Boyce Watkins sums up this when he writes:

What’s most egregious about cases like this one is the sense of powerlessness that many in the black community feel, when one of our own is killed by police in what appears to be a highly questionable situation. Police are not accustomed to having their authority questioned, and some of us forget that officers are human like the rest of us, often carrying a temptation to abuse their authority. Unless a reasonable explanation can be provided regarding why this officer shot an unarmed young man in the back, there is no reason for anyone to believe the officers should be found innocent. Let’s hope these jurors do the right thing.

I, too, hope the jurors do the right thing.   I wouldn’t say that I’m optimistic about that happening.