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Jury selection is moving fast. As of Monday, March 15, nine out of 14 jurors have been selected in the trial of former police officer Derek Chauvin, who faces murder and manslaughter charges in the killing of George Floyd.
It’s difficult to understand the complexities of questioning potential jurors. The Sixth Amendment to the U.S. Constitution promises criminal defendants a “trial by an impartial jury of the state and district wherein the crime shall have been committed.”
Here’s how that actually works. The court system contacts a pool of potential jurors at random from a list of people who have identification cards or driver’s licenses, and are registered to vote. Those jurors received a 14-page questionnaire that asked them what they know about the case, their opinions about the police, and what they think about racial discrimination in the criminal justice system.
This pool of prospective jurors then met in court starting March 9 to be interviewed by attorneys and the judge. After each interview, a prospective juror is either accepted or denied a seat on the jury.
In a broad sense, that’s what happens. But seeing that procedure unravel over a livestream—as the community has in the Chauvin trial—raises a lot of questions. So last Friday, we put together a panel of community members to discuss jury selection.
They helped sort through questions about court procedure, fairness, and what it means for the community anxiously watching the trial. Who ends up on the jury—and who doesn’t? Why does the court bounce prospective jurors who may consider English a second language? Can a jury with only one or two Black members deliver justice for George Floyd?
Our panel guests this week are,
- Asma Mohammed, advocacy director at Reviving the Islamic Sisterhood for Empowerment
- Habon Abdulle, executive director of Ayada Leads
- Mary Moriarty, former chief public defender in Hennepin County
At the time our panel met over Zoom on Friday, seven jurors had been selected: four white jurors, one Black juror male, one Hispanic male, and a mixed-race woman. Our panelists stressed the importance of assembling a diverse jury—whether by gender, ethnicity, or education level. (Their comments have been lightly edited for length and clarity.)
On Tuesday, the defense had struck two Latino potential jurors. So prosecutors raised a Batson challenge: That’s the legal term for what happens when either the prosecution or the defense lawyers move to eliminate potential jurors on the basis of sex, race, ethnicity, or religion. Judge Peter Cahill denied this challenge.
Two additional jurors got through the selection process on Monday: a Black man and a white woman. That leaves three more seats to fill, as well as two alternates.
Let’s start with sort of an overview. Before we get into what’s happening inside the courtroom, what concerns are you hearing from communities you work with about the jury selection process so far?
Asma Mohammed: We’ve been hearing from people not knowing enough about the process to be able to judge whether it’s fair or not. Thank you to Mary and other people who are translating so much of the “legalese” as we’ve been calling it.
Habon Abdulle: I’m glad that Sahan is actually stepping up to the plate and saying, this is not isolated. It is legal and it’s criminal and we know that part of it. But what is missing, when it comes to the mainstream media, is how people like us are affected, how they’re feeling, and what is their point of view. That is not taken into consideration.
Mary Moriarty: I had been aware that many in our community were apprehensive about the trial. And when the fencing, concrete, and barbed wire went up, I was hearing from people, Do they know what the verdict is going to be? I think that added more consternation.
So to set up some context about the jury selection process: Simply put, what do we know about who ends up on a jury and who doesn’t?
Moriarty: People are always asked about their experiences with police, and most white people who are on panels will say their experiences with police have been positive, and they don’t know anybody who’s had a negative experience with the police. Yet, when we have Black and brown members of our community on panels, they will often say they have had negative experiences with police.
And I should point out, too, we’ve been doing jury trials through most of COVID, and what we’ve noticed is that our panels are whiter. I actually saw some data on it and they’re a couple of percentage points down on Black jurors. People could opt out because of COVID. And we know that COVID is hitting people of color much more harshly than other populations, and it may very well be that people are opting out.
Also, it’s very difficult to be on jury duty if you’re not getting paid by your employer, if you’re self-employed, if you provide childcare. So that might be another reason why we’re seeing fewer Black members on the panel. That’s always been problematic.
We’ve seen a couple of people removed from this jury using peremptory challenges: They can remove a juror for any reason other than race, ethnicity and sex. Each side is given a specific number of peremptory challenges to remove a juror. In Chauvin the state has 9 and the defense has 15.
We’ve also seen something called a Batson challenge, which is where the state has said—and I think it’s happened twice—that the juror or prospective juror has been removed because of race or ethnicity.
Both of those challenges were denied and so those prospective jurors did not get to sit on the jury.
Habon: A Black man died under the knee of a white police officer. Therefore, the racial makeup of the jury is a concern for all of the people living here in Minnesota, particularly the community of color. I am surprised because Hennepin County, I believe, is the most diverse county in Minnesota. Not having as much of a diverse jury is going to be something that we are going to talk about and address even after this trial is over.
“People of color” is vast. If they pick six or seven white and another seven people of color, that doesn’t mean all the people of color are from the same ethnicity, background, or same whatever we want to consider.
Mohammed: Going back a little bit, jurors are getting paid basically nothing to be there all day. So if you’re thinking about working mothers who are trying to provide child care? Minnesota is one of the worst in the country to Black folks when it comes to economic disparities, when it comes to disparities within schooling—pretty much everything, including COVID and vaccination.
Then you’re leaving out a significant portion of the population who maybe would like to be on a jury, but can’t, because the jury is made for white people.
I remember one of the jurors being dismissed because she was like, How am I going to provide childcare? That’s a serious question.
Someone else was saying, There are barricades outside, should I be afraid for my life here? When you release our names, are we going to be okay? And especially for Black and brown people in that jury there’s a genuine fear.
Moriarty: Can I add, it’s actually $20 a day, just so people understand what jurors get paid.
I do have the breakdown of the panel, too. I believe it’s four white people, it’s three white men. There’s a Black man who immigrated here. He speaks French—I don’t know what country he came from. There’s a Hispanic man and then a multiracial woman.
One other thing I wanted to say that struck me, too, was that one of the white jurors was asked on the questionnaire—and there was a follow-up on it—Do you know of anybody who’s been discriminated against? And he said no. That’s really telling. I don’t know of any people of color who haven’t experienced some kind of discrimination and so when you have white jurors who say they’ve never experienced or don’t know of anybody who’s ever been discriminated against. That’s a very different lens brought to a jury. That’s concerning as well. Although I’m pretty sure that juror was excused.
So the defendant in a case has a constitutional right to a jury of one’s peers, or citizens. Looking at Census Data, the City of Minneapolis is about 60 percent white (non-Hispanic) and 20 percent African American. What if you were to look at this jury and not see people who look like you, or like George Floyd rather?
Habon: When they say “jury of your peers,” what they mean is someone who can deliver a fair and unbiased decision, not necessarily someone who is the same gender, or race, or background.
However, I believe that needs to be changed. You have to also look through the lenses of people who struggle with racism, who struggle with classism, and any other “-ism” that we want to talk about.
If you have the entire jury being all from one background of one race, I believe that regardless of how much they try their unconscious bias, that will play a part in the decision.
Mohammed: Thinking about what Habon said, nobody is unbiased. Mary and I had this back-and-forth on Twitter about this: What does it mean to be unbiased? What does “race neutral” mean? We know what it means in the context of the law, but the law itself we know is biased against Black and brown people.
We can’t expect an unbiased jury. We can’t expect an unbiased breakdown of peers that are going to serve us. And I think that there are so many challenges within the criminal justice system and this is just one of them. But here we’re seeing it on display for the first time.
Moriarty: The jury of one’s peers, the way it’s defined legally, is very different than what the public would think. It makes me think of a client that I had once. He was a Black client. And our jury came up, and it was all white people, a whole sea of white faces. He turned to me and he said, is the plea offer still available? And I checked and it was and he pled guilty.
I can’t imagine what that would be like. And I’ve had other clients, Black clients say to me, Those aren’t my peers. Because they don’t see anybody who looks like them, who has the life experiences that they have.
The way the law defines it, the jury office has to make an effort to get a cross section of the community. But when they bring up an individual panel, that doesn’t mean you’re going to get much of any racial or ethnic diversity. And that’s where the problem comes in.
On Tuesday, there was a juror who was dismissed. She said she was originally from Mexico and she wanted to say on the record that she might have some problems understanding certain evidence in English, since it’s not her first language. What happens when we don’t include people in a jury because they face language barriers?
Mohammed: If you go down Lake Street, you’re going to see Black and brown people and you’re going to see Black and brown—mostly East African and Latino—businesses. Those people are speaking so many different languages. Then we’re telling the same people that you can’t serve on a jury because we can’t understand you, you can’t understand us, whatever barrier there may be. It’s obviously an issue of accessibility, but I think it’s just so telling of everything.
Habon: I believe there is a certified court interpreter, when someone doesn’t speak the language. But if you eliminate someone who is not fluent in English, you are telling that person that you are not a part of this community.
Moriarty: If I’m thinking of the same juror, she was removed by the defense. I believe it was a peremptory, and I believe the state did make a Batson challenge.
She wrote on the questionnaire that she wanted to be on the jury so that her opinion could be heard. She was questioned quite a bit about her opinion about what justice would mean. It was pretty clear that she felt that George Floyd had been wronged.
One thing that struck me about this woman is, maybe she just didn’t understand what the defense was asking specifically. I think there was a bit of a language problem there. Had she fully understood what the defense was saying, I’m guessing her answer might have been different. I don’t know whether she would have been on the panel, but it was troubling because she was trying very hard.
We’ve talked about language. Are there any other limitations that you all have been thinking about while following the jury selection process?
Mohammed: One thing I found really interesting that bothered me a lot: I think they asked one of the women who they were interviewing whether she would be able to provide childcare or something of the sort. There have been so many men on the panel who’ve been questioned. None of them were asked, Are you going to be able to provide childcare for your child? Why? Are they not parents themselves?
And then people who are afraid of the barricades. They’re hurting. Some people were saying, and I think most of those people were white, I feel safer with the barricades there. When Black and brown people see barricades around the Government Center, they’re saying that looks like a dungeon. It doesn’t look safe.
Habon: And if you’re a refugee or someone who experienced civil war. It’s reliving again the trauma, seeing your city militarized. It’s just triggering more trauma. It’s there in front of us, how they are protecting the city like it’s not ours. That is the sad part. We are part of Minnesota. We are part of Minneapolis. We’re part of the city.
Moriarty: The judge has ordered that the jury be sequestered, which means taken to a hotel and kept together when they’re deliberating. And I think that plays a major role as well in terms of women with kids. Some of the women reacted that way, like, I’ll have to be in a hotel, away from my small children. And that just wasn’t doable, to be away from small kids.
This is an unusual trial in that respect, too—that the judge has ordered that once the jury gets this case, they’ll be kept together at a hotel, and then they’ll come back and deliberate. They might be allowed a phone call or something to their family, but they’ll be kept from their families, until they can either come up with a verdict or they can’t.
On shows like Law & Order, for example, you come away with certain stereotypes about different jurors: White men are pro-prosecution. Etc. What’s backed up by data here and what’s myth? What should we be thinking when we see jury members from one group or another?
Moriarty: It’s important not to stereotype people. If you’ll recall one of the white males, who is a potential juror, got excused. He was the only one who’s mentioned the Boogaloo boys as causing the destruction, and he was very enlightened about various issues.
In my 31 years’ experience, white jurors, when they understand that they don’t have the life experiences and they’re aware of problems in the system, sometimes really bend over backwards to be fair.
But there’s a difference between that juror who got excused by the defense, and the prospective juror who said he’s never known anybody who’s been discriminated against. Which is not to say we don’t need diversity on the jury. And we certainly shouldn’t have all white people on the jury. But white people aren’t necessarily the same and that’s one of the reasons why we really need to look or listen carefully to what they’re saying about mass incarceration, police brutality.
Mohammed: Another thing I was thinking about is how white folks know how to navigate these systems a lot better than a lot of Black and brown people. And so, in answering the questionnaire and answering some of the questions, they do have access to more information that maybe we don’t.
They know how to answer some of the questions in a way that makes them sound unbiased or favorable to both sides. That is obviously another place where we are seeing an unfairness play out.
Habon: One thing I noticed is the language that the legal representatives have been using, which was difficult for many of the potential jurors. They were asking again and again: Could you explain that? What do you mean? What is that question? One thing we forget is the power that comes with the language.
Listening to the selection, that was something that came up again and again and again. I was like, Why can’t they use simple language that is easy for these people to understand and answer instead of using this jargon?
Moriarity: That’s a great point and this also goes to another point that I noticed. I can’t remember off the top of my head which prospective juror it was, but it was a juror of color. And the defense was being really—I don’t think he knew this—but they were being really aggressive with this person about his opinion. I wondered if that juror of color was feeling attacked and maybe not as savvy about navigating the system as some white jurors.
Why don’t we wrap up looking outside the courtroom again. Can a community believe in the fairness of the verdict if they look at the jury and they don’t see their “peers?”
Habon: It depends. I’m not expecting that the verdict will be different, because there are four white folks and the rest are people of color, but we have to also be vigilant. I remember two, three years ago, when Castille’s trial was going on. All of us knew, because we saw how he was killed, that the outcome will be guilt. And instead, what we saw wasn’t guilt.
It’s daunting, to tell you the truth. It’s daunting, because of the racism and discrimination that we’ve experienced for centuries, and because of what happened last year alone.
Moriarty: I can’t speak for the community, so I will speak from my perspective, as somebody who’s been in the system for a very long time. I hope that this is an opportunity for people to see another way in which the system doesn’t work well in some ways, and that we can talk about reform.
There isn’t a lot of hope with some people because they feel that the community has never gotten justice. Whatever the composition of the jury panel is, if he is convicted some people will be satisfied. But George Floyd is dead and that’s not going to bring him back.
Mohammed: If I walked into a trial, and I didn’t see a single person who looked like me, I know that I would be afraid. I also think that it’s hard to make up a jury and say that because they look like me, they’re going to side with me. I don’t think that’s fair either.
But I do think representation is important. Do I think it is everything? No.
I think it just speaks to our distrust of the system in general, and communities not knowing how to find justice, and starting to understand more and more that justice isn’t going to be served through trial. It’ll be through community in some way.
We saw that in Minneapolis—that the Floyd family is receiving a settlement. For some people, that will be enough. And for other people, it will never be.