Today’s disobedience from denials of certiorari Love v. TexasJustice Sotomayor, Justice Breyer, and Justice Kagan joined in arguing that Texas courts have not properly dealt with claims of racial prejudice based upon a juror answering “yes” when asked a voir dire question: “Do you think that certain races or ethnic groups are more violent than other?”
A jury found Love guilty of capital murder during a 2015 robbery. The following questionnaire was completed by potential jurors prior to the trial:
“68. Are you sometimes biased against certain ethnicities or races?
The first question was No. The prospective juror in question answered “No.” However, he answered “No” to the second question. He replied, “Yes” He said that “[s]Statistics show that certain races are more likely to commit violent crimes. Statisticians are my faith.”
Love and State both questioned the prospective jurors about their responses to the question number. 69. He stated that he understood the meaning of “[n]On-White” Races to Be “More Violent.” He stated that statistics had shown this to be true in the “”[n]He had also taken ews and criminology courses.
His answer to the question no. His answer to Question No. Defense counsel told him that Love would be treated the same way “just because he is African American.”
While I understand the arguments of the dissent that Texas courts didn’t consider this sufficiently, I believe they were wrong in their innocent error analysis. This focused on whether peremptory questions were available earlier in the proceedings. The challenges, however, were not used by the time the juror was being challenged. The Texas courts did not reach the merits of argument that juror bias was a valid reason for exclusion.
Moving away from that specific procedural pointer which the dissent stressed, I believe the juror shouldn’t have been excluded. The question title “tends to” may be ambiguous. However, many jurors could interpret it to reflect statistical correlation.
This interpretation means that many people, who are fair-minded and have looked at the statistics, would answer “yes,” even though acknowledging the limitations. See here to learn more about the statistics. To my knowledge, it’s impossible to accurately say what “non-white” races are, regardless of whether that includes Hispanics. Hispanics tend to be treated in lay discussions as a racial category, so I suspect the jury erred. It does seem to hold true for blacks living in the U.S. Because of differences in reporting rates to police, the focus should be on the first column.
So, the jury might have given an honest answer to his belief. This was based on evidence that had been collected by trusted government agencies.
As an example, I believe jurors are also prohibited from sex-biasing. However, if jurors were to ask people if they believed that certain sex people tend to be more violent that others, many reasonable jurors would respond “yes.” One could argue that the sex-based variations in violent offense rates is much more stark than those based on race. However, it can be argued that sex doesn’t exactly match race for such purposes. J.E.B. v. T.B.(1994) in a different context for jurors, to illustrate the possibility that there may be a biological link between violence and sex. However, this shows the danger of jurors being removed for cause on the basis of their correct beliefs regarding the criminological facts.
Also, I am curious if it indicates the danger of asking such questions on the questionnaire at all (or at the very least the difficulty in writing the question as it was written). One hand, the “yes” response might allow for useful questioning to determine if the juror is able to decide the case on the basis of the evidence and not generalizations about race.
However, this may lead to more jurors being influenced by statistical generalizations. The question reminds them of similar experiences, and they will answer the question “yes.” Given that most fair-minded jurors will answer “yes” to the question, even if they are honest, the statistical generalizations suggest it could help identify honest jurors and not biased jurors.
However, I would love to know what other experienced criminal defense attorneys have to say.