Article by M. Shanara Gilbert
This Article examines these legislative initiatives against an analysis of the principles that have driven the historical evolution of jury discrimination law. The broad goals of the proposed legislation include the protection of the defendant's right to an impartial jury, the protection of the right to have a fair cross section of the community included in the venire, and of the right to a jury that has not been selected by a discriminatory process. These goals also embrace the fundamental interest of communities in participation in the jury process, a democratic institution. This community interest is, in turn, protected by the policies underlying the fair cross-section guarantee and the Equal Protection Clause. The thesis of this Article is that these legislative measures are important and timely corrective measures consistent with the policies underlying the Sixth and Fourteenth Amendments to the United States Constitution.
The goals of the Sixth Amendment, as articulated in the principal Supreme Court cases, are furthered by and compatible with an equal protection analysis of jury venire selection procedures. These principles provide the proper constitutional foundation for protection of both defendant rights and the fundamental interests of the community in a change of venue decision. However, because the Constitution as presently interpreted does not provide the needed protection of these interests, legislative protection is required.
As will be discussed below, the tests for determining a violation under each amendment differ. Moreover, neither amendment would apply directly to a venue transfer similar to that in the King case, as the Sixth Amendment belongs to the defendant, and the Equal Protection Clause, as interpreted by the Supreme Court, requires a showing of intentional discrimination to prove a violation. Although a judge's conscious or unconscious omission of demographics in the decision on choice of venue in a racially sensitive case should be considered intentional discrimination, current federal equal protection doctrine requires more obvious invidiousness. The obstacles presented by this exacting burden of proof could be obviated by broader interpretations of state equal protection provisions, the enactment of federal legislation pursuant to Section Five of the Fourteenth Amendment, or state legislation such as that proposed in the change of venue context.
Short of these measures, this Article argues that in determining the choice of venue, trial courts should employ a modified equal protection analysis that incorporates aspects of the Sixth Amendment test for jury venire discrimination. The analysis is intended to provide an operable test that would enable the decision maker to reason carefully to a sound choice, based upon a balancing of the rights and interests at stake.
The most recent pronouncements of the Court, articulated in Georgia v. McCollum, reinforce the notion that society has an interest in protecting potential jurors from discrimination and exclusion from the jury process. The arguments advanced in connection with discriminatory use of the peremptory challenge are applicable with equal, if not stronger force, in the jury venire context, where both the Fourteenth and the Sixth Amendments have been repeatedly invoked to protect a defendant's right to a fair cross section of the community on the venire. Current interpretations of the Fourteenth Amendment that have strengthened the rights of excluded jurors against discrimination, and that have reinforced the community's interest in the fairness of the process, provide the basis to argue that this interest is indeed fundamental in character and deserving of constitutional consideration. This is particularly so in cases in which community rights or interests are at issue.
The change of venue decision, once made, must take into account the demographics of the community to which venue will be changed in order to preserve the underlying principle that juries must be chosen from a fair cross section of the community where the alleged crime occurred. The shift in venue provides a method to ensure a fair and impartial trial by protecting against an assembly of jurors that may have decided opinions on a particular case because of extensive exposure to pretrial publicity or other prejudice. It is a decision taking into account various factors, usually statutory, relative to the individual case. Consideration of the additional factor of demographics, that is, racial, ethnic, and class composition of a particular venue, is essential to acquiring a pool that is impartial in the constitutional sense. Viewed from this perspective, the decision to change venue is a mechanism for jury selection, much like other means of establishing a jury venire, which historically have been examined for compliance with Sixth Amendment values. As the proposed California legislation suggests, special cases constitutionally compel consideration of demographics in the change of venue decision. These cases include trials of police for crimes against citizens, and crimes in which race is a critical element, either facially (as in a racial bias crime) or by election of theory by the litigants. The affected community, to the degree that it is rendered impartial under legal standards applicable to change of venue, has a distinct interest in being a part of the evaluation of evidence and the decision as to the guilt or innocence of the defendant. Consideration of the demographic composition of the community of origin when a change of venue is ordered would preserve the interest in participation, as well as the general interest in impartiality. Society also has a distinct interest in ensuring the credibility of the process by which these cases are heard. Because of the importance of these various interests, trial judges, entrusted with discretion to consider these factors, should be especially bound to consider demographics in the decision to change venue.
Part I will examine the cases in which venue choice has been a recent issue: the state trial of the four police officers acquitted in the assault on Rodney King in California and the trial of William Lozano, the Latino police officer who was retried for the murder of two African-American motorcyclists in Miami, Florida. While the trials of police officers for crimes against African Americans have raised the issues presented here, Part I will also discuss one case of racially motivated violence by a private citizen to illustrate the significance of race-conscious remedies in jury selection for such high-profile cases. Therefore, the final case for consideration in Part I is that of Byron De La Beckwith, the white supremacist awaiting a third trial in Mississippi for the assassination of civil rights activist Medgar Evers. Part II will trace the constitutional policies underlying protection against jury discrimination contained in the Sixth Amendment's fair cross-section guarantee, and in the evolution of the Fourteenth Amendment's equal protection doctrine governing discrimination in venire and petit jury selection. Part II will also include a close examination of the Court's approach to protection of excluded jurors from discrimination in Georgia v. McCollum, along with its grant of standing to the prosecution to assert that right. After examining the applicability of these principles to the choice of venue decision, I will propose that the current standards ought to be modified to ensure protection of the rights and interests at stake in that decision.
Part III will discuss recommended legislative solutions to the problem of venue selection and demographics. This Article will articulate a modified equal protection test that could be applied in the choice of venue decision. This test is stricter than the Sixth Amendment test for a fair cross-section violation but less stringent than the equal protection test for purposeful discrimination. This test will require a higher scrutiny of a trial court's venue choice than is currently employed, which will account for the presumptively nonpurposeful, but nonetheless harmful, discriminatory impact of the decision. This level of scrutiny includes a balancing of the defendant's fundamental right to an impartial jury and the community's fundamental interest in participation and in the appearance of justice.
Finally, it must be noted that when this Article refers to “community,” it is especially concerned with the African-American community that, because of policies and practices deriving from subjugation on the basis of race, has been excluded by law and custom from American democratic processes. This community is at least part of the “relevant universe” for this constitutional analysis, for the Fourteenth Amendment was drafted with the purpose of protecting Africans in America. Discrimination against people of color is a continuing condition that must be honestly acknowledged in order to be adequately remedied. Efforts to eradicate racial discrimination are ongoing, and need not be limited to addressing only the obvious, overt forms of discrimination that the “intent” requirement of the Equal Protection Clause protects, but should also include the subtle, sophisticated, conscious, and unconscious practices of those “‘who may be of a mind to discriminate”’ and which impact adversely on African American, Latino American, Native American, and other communities of color.
About the Author
M. Shanara Gilbert. Associate Professor, City University of New York Law School at Queens College. B.A., Syracuse University; J.D., University of Pennsylvania Law School; Member, Board of Directors, National Conference of Black Lawyers.
Citation
67 Tul. L. Rev. 1855 (1993)