The jury system wasn’t built for Black people

Defense attorney James Greenberg petitioned the judge to ask each potential juror a question: “The defendant in the case is African-American. Does the fact that the defendant is Black affect your ability to be completely fair and impartial?” Greenberg’s client, Anthony Robertson, a 22-year-old Black man accused of gunning down Aaron Wornum, a 25-year-old Black man, sat in the Boston courtroom in February 2014 observing, a life sentence without the possibility of parole hanging over him.

The prosecutor objected: “It’s bringing race into a case where race is not an issue. The victim and the defendant are both African-American.” The judge, unaware that racial biases can still pervert justice under those circumstances, sided with the state, refusing to pose the question.

Greenberg continued to his next goal—securing for his client a favorable jury of his peers, specifically one with Black men. However, the jury venire, the pool of potential jurors, included just three. The prosecutor used a peremptory strike—an attorney’s right to remove a juror from the jury pool without providing a reason—to exclude the first. Over Greenberg’s objection, the judge excused the second for cause, fearing he held anti-police biases. The prosecutor struck the final Black man, who was of Dominican descent.

Greenberg told the judge he believed the prosecutor wielded his peremptory challenges in a racially discriminatory fashion, violating the landmark Supreme Court decision Batson v. Kentucky. When defense attorneys allege this manner of jury discrimination, they request the judge to compel the prosecutor to articulate race-neutral reasons for striking jurors.

“I don’t consider him African-American,” the prosecutor retorted. “I mean, we talk about racism, I mean, this is racism. ‘I got to have somebody who looks like my client.’ To me, that’s racism, you know?”

The judge rejected Greenberg’s argument, allowing the prosecutor to conceal his motivations for excusing two potential Black male jurors. Only one Black woman made the jury. As often happens, the criminal justice system appeared to be denying a Black defendant his right to an impartially selected jury and thus a fair trial.

Caste preservationists, those who, in the race context, establish as an objective the eternal primacy of the white population, rely upon the criminal justice system to keep the Black population in line. For this reason, we frequently witness White people indiscriminately phoning the police whenever the presence of Black people discomforts them. When a White woman in San Francisco called the police on an 8-year-old Black girl selling water to pedestrians, she expected them to remove the girl, as if their job description encompassed an “unwanted Black” removal service. Within the justice system, the disproportionately or all-White jury serves a crucial, but different, function: convicting Black people.

Various studies find that the more White the jury the more likely a Black criminal defendant will hear those frightful words: “We the jury find the defendant guilty.” This explains many outrageous justice system outcomes. Like why innocent Black people are convicted of murder seven times more often than their White counterparts. Like why Black prisoners convicted of murder are 50% more likely to be exonerated than other races. Like why, notwithstanding only 15% of Black murderers killing White victims, 31% of Black murder exonerees were convicted of killing White victims. All-White juries facilitate the incarceration of Black bodies, an avowed yet unspoken goal of the criminal justice system.

Guilty or innocent, the jury injects terror into the psyches of Black defendants. Yet, nothing inherent to the jury, as an institution, warrants that level of fear. In fact, White America has long cherished the jury as its guardian against tyranny.

Colonial America inherited the jury from Mother England’s legal system. The colonists, though, infused this heirloom with potency to help them thwart a monarchy from infringing their rights. The criminal prosecution of John Peter Zenger opens this saga.

In 1731, King George II appointed the corrupt William Cosby governor of the New York colony. GovernorCosby ousted Chief Justice Lewis Morris from the colony’s Supreme Court after Morris ruled against a lawsuit he brought against the previous governor. In response, Morris and his allies founded The New York Weekly Journal, America’s earliest journal of political criticism. Edited by Zenger, anti-Cosby musings frequently splashed across its pages. One article branded him “AN ENEMY AND TRAYTOR TO HIS COUNTRY.”

The New York attorney general prosecuted Zenger for seditious libel, a law punishing those who delivered anti-government speech. The jury had to decide one issue—whether Zenger published the material, which he did. The responsibility of determining whether the speech qualified as seditious libel fell to the judge.

Zenger’s attorney, Andrew Hamilton, implored the judge to grant the jury a say on whether Zenger's statements constituted seditious libel. Hamilton encouraged the members of the jury, furthermore, to identify with Zenger—didn’t people have the right to criticize their leaders? Hamilton insisted the colony prosecuted Zenger because he exercised that right and a jury must block the government from persecuting fellow citizens.

The jurors agreed, acquitting him. Reports of Hamilton’s oratory spread throughout the colonies. King-appointed colonial leaders sought to convict others for seditious libel. But juries refused to convict, practicing the gospel preached at Zenger’s trial.

The Founding Fathers, decades later, during the Revolutionary War era, agreed with Hamilton, exalting the jury system onto a civic pedestal. That's why the Declaration of Independence maligned King George III for “depriving us … of the benefits of trial by jury.”

Before the drafting of the U.S. Constitution, twelve states had already enacted their constitutions and all twelve granted only one right in common—a criminal defendants’ right to a jury trial. The Constitution enshrines a federal right to a jury trial twice. Many of Thomas Jefferson’s contemporaries concurred when he remarked, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

The Souza-Baranowski facility, a supermax prison, sits in Lancaster, Massachusetts, about 50 miles northwest of Boston. After Robertson’s conviction, he would call a place like it home for the remainder of his life absent a miracle. Shortly thereafter, Lisa Billowitz, his court-appointed appellate attorney, arrived at the prison to discuss his case.

The prison includes multiple small rooms—each about 10 feet by 10 feet with a table and two chairs—where attorneys meet their clients. Billowitz and Robertson, in his orange prison jumpsuit, met in one, allowing them to get to know each other, discuss how to approach his case, and figure out how to structure a good working relationship.

Billowitz rarely exudes confidence about winning an appeal. “The rate of reversing convictions, particularly murder convictions, is extremely low,” she said. “I have been, and my clients have been, heartbroken numerous times by issues that seem strong, that seem like the law is on our side and the conviction was affirmed. That’s the nature of the system. That’s the role of the appellate courts—to preserve the status quo.”

Convincing an appeals court to overturn a conviction based on jury discrimination proves exceedingly difficult. Defense attorneys too often fail to press the issue at trial, preserving no record of any potential discriminatory uses of peremptory challenges. Appellate attorneys like Billowitz can’t raise the matter on appeal if the trial attorney didn’t. Luckily, Greenberg had pressed the point.

Yet, when Billowitz argued Robertson’s case before the Massachusetts Supreme Judicial Court on March 9, the 7 justices completely disregarded the issue, spending the entirety of the allotted 15 minutes on a witness identification point.

Prosecutors constantly get away with discriminating against Black jurors and stomping on the rights of Black criminal defendants. When Billowitz walked down the courthouse steps after oral argument, she had little reason to believe Robertson wouldn’t be another one left without recourse after the prosecutor limited Black juror participation.

While White people engineered the jury system into their tool against government oppression, they harnessed it to subjugate Black folk.

When White Americans extolled the democratic virtue of the jury, Black criminal defendants, nearly always enslaved, were generally tried in special courts for Black people. At least one justice of the peace presided over these tribunals and at least two White landowners, frequently slaveowners, served as jurors. Some northern colonies, like Massachusetts, tried Black defendants in the regular court system, but reserved the jury box for White men. And the jury system oppressed Black people in a simple way—White jurors, when Black people sat in the defendant’s chair, envisioned themselves as agents of the state, entrusted to enforce White supremacy and promote caste preservation.

This mindset still survives.

Two centuries ago, in the pre-Civil War 1800s, Black defendants were more likely to be tried in a regular court system in the North, although, per state laws and unofficial policies, only White men could assess their guilt or innocence. In the South, Black defendants still heard their verdicts mainly in these “Magistrates and Freeholders” courts.

A half-century after emancipation, those White-male-only jury service laws violated the Constitution’s newfound guarantee of racial equality—the equal protection clause of the Fourteenth Amendment. States, therefore, entrusted local officials who summoned potential jurors with the responsibility of forbidding Black skin from juries. 

These officials, jury commissioners, barred Black names from appearing on the lists of jurors to be convened for duty. This violated the Constitution, technically. Jury commissioners lying and swearing they harbored no discriminatory intentions, however, left Black criminal defendants without the desired recourse—an overturned conviction and a new trial with an impartially selected jury. The U.S. Supreme Court held that defendants must prove jury commissioners purposefully discriminated. Without an admission, defendants had no evidence courts would accept as demonstrating conclusive proof.

The burden to exclude now lands upon the backs of prosecutors with many eagerly lugging this miserable American tradition of jury discrimination forward. Prosecutors habitually exploit the peremptory challenge by striking people of color based on race, resulting in disproportionately White juries.

The Supreme Court thought it tailored the Batson decision to avert this. As Justice Thurgood Marshall, the Court's lone Black justice, predicted, it failed.

On August 31, 2018, Billowitz, in her Boston-area home, sat on her couch next to her teenage son, awaiting the outcome of Robertson’s appeal. Then an email alert for the court’s decision blasted her inbox. The normally pessimistic Billowitz clung to hope that the justices would acknowledge the injustice and correct it.

She read through the court’s ruling, threw on some professional clothes, jumped into her car, and hurried to the prison.

This part of the job fills her with dread—when she tells her client, usually some young man, that his best last hope vanished as if from the snap of the fingers with a judicial decree.

The prison officials brought a shackled Robertson into a visiting room. She requested they let him out of his chains. They refused.

He looked at her face and exclaimed “What?”

“You won! You got a new trial.”

Then poured forth the incredulous and emotional exchanges. 

“I can’t believe it.”

“We won.”

The court vindicated Greenberg and Billowitz, writing, “We conclude … the judge abused his discretion in finding no pattern [of potential racial discrimination] after the defendant's second objection to the Commonwealth's use of peremptory challenges on black men. Because such an error is structural, carrying the presumption of prejudice, we vacate the conviction and remand the case for a new trial.”

The highest court in Massachusetts sent a warning shot to judges and prosecutors about jury discrimination. Black defendants, however, still encounter such jury discrimination all across the country.

The system doesn’t exist to treat Black people fairly.

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