Monday, April 12, 2021

A rare (and disturbing) peek into jury deliberations and race

Have you previously tried--and failed--to convince a judge to discuss racial and other biases (conscious or unconscious) during jury selection? Perhaps your judge is simply an optimist. Next time, point your judge to Harden v. Hillman for a peek behind the jury-deliberations curtain. Mr. Harden sued Officer Hillman for violating his constitutional rights. Both Mr. Harden and Officer Hillman are Black. A jury returned a verdict in favor of the officer.

A few months later, the only Black person on the jury came forward via affidavit to report that her service was so painful, humiliating, and embarrassing that she never wanted to serve again. She detailed other jurors' assumptions that Mr. Harden was a crack addict who had sued the officer just to get some money, and their denigration of Mr. Harden's Black lawyer and law team as "the Cosby show." She explained that the jurors had spoken freely in front of her, thinking she was Latina (because of her complexion and her name). She believed that Mr. Harden did not get a fair trial because of the jurors' blatant racial stereotyping.

Despite this evidence, the district court denied Mr. Harden's motion for a hearing to investigate juror bias in connection with his motion for a new trial. The Sixth Circuit reversed. Setting aside the procedural questions at issue in Harden, the case is a useful lesson for judges who don't think jurors need an anti-bias nudge. Is it actually effective to put the dangers of biases on the table during voir dire? I don't know, but surely it couldn't hurt. And it may emboldened some jurors to push back when biases bubble up during deliberations, and refocus the discussion on the evidence.

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