Mark Twain once referred to a jury as “twelve men … who don’t know anything and can’t read.” He was exaggerating. Yet, this morning three Justices of the United States Supreme Court dissented from the Court’s refusal to take up a case of alleged juror bias for review, when the claim of bias was the juror’s statement of a demographic fact that is undeniably true.
Let’s start with the uncomfortable but undeniable fact of differential crime rates among ethnic groups. We will use the National Crime Victimization Survey (NCVS) for 2019, the last year available other than the atypical pandemic year of 2020. The NCVS is free from charges of law enforcement bias as it is based on a survey with no police involvement. It also avoids the nonreporting problem. Its main shortcoming is that it does not include homicides or crimes against children, as it asks adults and teens about crimes committed against them personally.
Violent crimes in which the victim was able to state the ethnicity of the perpetrator make up 84% of the sample, a good base as these things go. NCVS tallies the race/ethnicity variable as White, Black, Hispanic, Asian, Other, or Multiple Offenders of various races. “Other” includes “Native Hawaiians and Other Pacific Islanders, American Indians and Alaska Natives, and persons of two or more races.”
Here are the ratios of the number of incidents with perpetrators in each of these categories, except the last, over the populations of those categories in the U.S. population, in descending numerical order, from Table 13 on page 17:
Black: 2.1
Other: 1.9
Hispanic: 1.1
White: 0.8
Asian: 0.2
The “White” category has the second lowest ratio, with only “Asian” being lower. The reasons for these ratios being different for different groups are debatable. The fact that they are different is not. That is the reality.
It is worth noting at this point that the definition of “Hispanic” makes it a separate dimension from race. Nonetheless, the Bureau of Justice Statistics reduces this variable to one dimension, as explained in the footnotes of the table, by excluding from the other racial categories any perpetrators described by the victim as Hispanic.
Now let us go to a 2018 murder trial in Texas. The defendant is a black man named Kristopher Love. Among the questions on the jury questionnaire is “Do you believe that some races and/or ethnic groups tend to be more violent than others?” A prospective juror answered that question “yes.”
From the dissent from denial of certiorari in Love v. Texas, No. 21-5050.
During the voir dire proceeding that followed, both Love and the State questioned the prospective juror about his response to question No. 69. He explained that he understood “[n]on-white” races to be the “more violent races.” 29 Record 145. He claimed that he had seen statistics to this effect in “[n]ews reports and criminology classes” he had taken. Id., at 144. He stated that his answer to question No. 69 was based on these statistics, rather than his “personal feelings towards one race or another,” id., at 107, and he indicated that he did not “think because of somebody’s race they’re more likely to commit a crime than somebody of a different race,” id., at 145. He told defense counsel that he would not feel differently about Love “because he’s an African American.” Id., at 146.
Does this make the potential juror a bigot who should be kicked off the jury for cause? Certainly not. His answer makes clear that he does not think that race is a causal factor making a person violent. He simply states that he is aware of the statistics noted above. All of the other groups do indeed have a higher rate of commission of violent crime than the White group, except for the Asian group which is less than 5% of the population of Texas.
Justice Sotomayor denounces the fact that no appellate court has ever reviewed the defendant’s claim of bias on the merits with no discussion whatever of how the juror’s correct knowledge of crime statistics amounts to a credible claim of bias in the first place. Aside from the rule that appellate courts generally defer to the judgment of the trial judge in these matters, there is simply no good reason to think that the trial judge’s denial of the challenge for cause was wrong.
Or is Mark Twain’s 1873 exaggeration now 2022 constitutional law? Is there a constitutional right to ignorant jurors?
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