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What it means for the jury to be nearly all white in trial for Ahmaud Arbery's death

AILSA CHANG, HOST:

A jury has been selected in the trial of the three white men accused of killing Ahmaud Arbery in February 2020. Of the 12 jurors, 11 are white. One is Black. This is despite objections from prosecutors that several potential Black jurors had been removed because of their race. Meanwhile, the defense said they had race-neutral reasons for removing those potential jurors. We wanted to talk about how a jury's racial makeup might impact the outcome of a trial, and so we're joined now by Francis Flanagan. He's an associate professor in the department of economics at Wake Forest University. Welcome.

FRANCIS FLANAGAN: Thanks. Thanks for having me.

CHANG: Thank you for being here. So I want to start with the demographics overall of Glynn County, where Arbery was killed, because nearly 27% of the population in Glynn County is Black. But this jury that's been selected for this trial is almost all white. Does that fact alone give you pause? Like, how common is it to see that kind of disparity between the demographics of a county and the demographics of a jury inside that county?

FLANAGAN: Well, it definitely gives me pause. I mean, you would expect, with 27% of the population being Black, that about a quarter of the jury should also be Black. But it's actually quite common for there to be this level of disparity between the demographics of the county and the demographics of sitting juries because challenges are often used against jurors based on their race, and Black population of the counties tends to be quite small on average relative to the white population. So they end up getting struck from the jury and underrepresented.

Usually, Black potential jurors and Black jurors are more likely to acquit a defendant. But race is at the center of this case, and that's pretty clear, I think, to everyone involved. And Ahmaud Arbery was a Black person who was killed in this instance. And I think the view from the prosecution and probably the defense is that Black potential jurors are going to view this as a murder and be more likely to convict in this case.

CHANG: Well, you have written a paper analyzing something like 737 felony jury trials in North Carolina to show how the race and gender of a jury can affect a trial's outcome. Can you tell us what did you learn after analyzing hundreds and hundreds of felony jury trials? Did you find that the racial makeup of a jury definitively affects the outcome of a trial?

FLANAGAN: So what we see in the data is that juries that are composed of more Black jurors and even jury pools that are composed of more Black potential jurors are much more likely to acquit criminal defendants across the board. And this is true for white defendants and Black defendants. Well, we see the opposite true for white men, especially on the jury. White men are actually more likely to convict Black defendants and less likely to convict white defendants, at least in North Carolina and some of the other southern states that we have looked at.

CHANG: And we should make very clear that as a matter of law, it has been ruled unconstitutional for any lawyer to try to remove a potential juror simply on the basis of race, correct?

FLANAGAN: That is correct. So the leading case in this was Batson v. Kentucky in 1986 that established this. And there was actually a Georgia case in 1992 that extended this to the defense because there's this question of, whose rights are really being protected here, and should a defendant have the right to use challenges in this way? But the court has ruled that that's not the case. I mean, actually challenging jurors like this violates the jurors equal protection rights also.

CHANG: The Constitution gives us the right to what's called an impartial jury, and that phrase has always struck me as maybe more of an aspiration than a reality. You tell me. What do we even mean by impartial when it comes to juries? And is it truly possible to have an impartial jury?

FLANAGAN: Well, an impartial jury means that individual jurors are supposed to be unbiased, which is supposed to mean that they can determine the outcome of a case based only on evidence presented at trial. Every single juror will have some biases, will have some preconceived notion about justice, about fairness, about what an outcome of a trial should be. And the court simultaneously recognizes this.

And this is why the jury needs to be drawn from this representative cross-section of the population - because there's this idea that there's this representative body that gives some sort of diffuse impartiality, that having different people with different opinions will represent the will of society and be more impartial because of the different types of opinions that people have. So there's this tension of wanting an individual juror to be so-called unbiased, whatever that means, but also recognizing that we require different opinions and different types of people to be sitting on the jury for it to be fair and for there to be justice. And the court has not established a really clear rule about what it means to be impartial.

CHANG: We have been speaking with Francis Flanagan, a professor at Wake Forest University. Thank you very much for joining us.

FLANAGAN: Yes. Thanks for having me. Transcript provided by NPR, Copyright NPR.