How Can This Man Receive a Fair Trial?
November 22, 2021
Observing the process of jury selection is a deeply disturbing experience. The defendant is a young Black man, the only person of color present in the entire proceeding. His family and supporters are sequestered in another room, invisible to the court and to him. The charges are serious. A man’s life and future will be decided by people who have little knowledge, understanding or experience of what it means to be Black in America. How can this man receive a fair trial?
The defendant sits quietly. His serious, persistent and long-standing mental health issues do not show from the outside, yet the impact of this on his behavior bears strongly on the facts of the case. Can jurors understand the implications of his state of mind when this is something experts struggle to assess accurately? If this important aspect of the situation cannot be effectively conveyed, if it is downplayed or dismissed, how can this man receive a fair trial?
The judge instructs the potential jurors that any bias or prejudice they may have can not be a factor as they consider the defendant’s case. This of course is not possible. Myriad studies demonstrate that we all harbor conscious and unconscious bias that many of us have never had cause to consider or examine. Uncovering these biases and prejudices requires a significant process of education, review of one’s personal racial socialization, interaction with knowledgeable mentors who have proximity to the real pain of racism and stigma, the willingness to confront uncomfortable blind spots and the ability to see life through an alternate lens. This cannot be accomplished through a brief instruction from a judge. Given the presence of implicit and unexamined bias, how can this man receive a fair trial?
Prospective jurors are interviewed in the courtroom and asked if they can be fair and impartial, with minimal definitions of what fair and impartial means. They make a self assessment that they can or cannot be fair and impartial, despite the likelihood of never questioning the impact of their race, racial socialization, associates, assumptions and relationships on themselves, and without undergoing training or orientation on the impact of these realities on the conduct of the justice system. So, how can this man receive a fair trial?
The dominant culture accepts the structure of the adversarial justice system and the court process and makes assumptions about fairness and impartiality. Access to legal representation and bail release varies according to income. People are known to believe that if someone is arrested, they are guilty, despite the presumption of innocence until proven guilty beyond a reasonable doubt. Some folks cannot imagine that a law enforcement officer might distort the truth or that a corrections officer might harm someone in their custody, despite abundant evidence to the contrary. The Innocence Project, for one example, has found that approximately one-third of persons convicted of a crime facing the death penalty have been revealed to be innocent. Some serve decades in prison eventually to be released and exonerated, although the process is arduous and fraught with barriers. Famed attorney Bryan Stevenson has devoted his life to winning cases thought to be hopeless by reviewing evidence and painstakingly pursuing every available legal option on behalf of his clients. In the notorious case of the Central Park Five, young men confessed under severe duress during interrogation to a crime that they didn’t commit, resulting in years lost in their lives and their eventual exonerations.
The justice system is rife with bias. About this there is no doubt and abundant evidence. The fact of mass incarceration gives witness to this reality and is carefully detailed in The New Jim Crow: Mass Incarceration in the Age of Colorblindness, by Michelle Alexander.
Knowing all of this, how can we believe that this man can receive a fair trial?