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Northwestern University Law Review : NULR Online
February 25, 2015
February 23, 2015
Editor's Note: This Essay is the third publication in a three-part series on racial bias in jury selection following a series of high-profile, racially charged events occurring across the country during summer 2014.
A lot of things matter in jury selection, and often the biggest thing that matters is what a lawyer trying a case fears most—even if that fear is an issue of race or possible juror biases. Patrick Brayer’s essay, Hidden Racial Bias: Why We Need to Talk with Jurors About Ferguson, illustrates the importance of confronting one’s fears even when it involves talking about a difficult subject with prospective jurors. In his essay, Brayer discusses the challenges of picking a jury less than ten miles away from Ferguson, Missouri, just days after a police officer shot and killed Michael Brown, an unarmed 18-year-old African-American. Brayer confides in his readers his concern that potential jurors may have harbored biases that would work against their ability to decide the charges against his client fairly, but he had doubts about saying the word “Ferguson.” While Brayer did not see race as a major issue in the case, how the jury viewed law enforcement was an important concern in his client’s case. Brayer’s fear of discussing the jurors’ views about law enforcement is exactly why he needed to talk with jurors about Ferguson.
Editor's Note: This Essay is the second publication in a three-part series on racial bias in jury selection following a series of high-profile, racially charged events occurring across the country during summer 2014.
Sarah Jane Forman*
It is a warm autumn night in St. Louis. The Cardinals are celebrating a 2–1 victory over the Los Angeles Dodgers in game four of the National League Championship Series. The bitter racial divisions that have erupted in this city following the shooting of unarmed teenager Michael Brown momentarily dissolve into a sea of red and white as fans dressed in Cardinals gear stream out of the stadium. But there he is: a man wearing a handmade sign, taped to the back of his jersey, that reads: “I AM Darren Wilson.”
Editor's Note: This Essay is the first publication in a three-part series on racial bias in jury selection following a series of high-profile, racially charged events occurring across the country during summer 2014.
Patrick C. Brayer*
As recent tragic events confirm, issues of race frame our national identity and define our capacity to achieve true equality for all individuals. By its very nature and traditions, the law is a profession tasked with confronting inequality and discrimination in our society. As issues of race continue to influence our communities, nation, and world, the legal profession will be charged with leading future discussions on how prejudice and bias affect our clients. Unfortunately, as legal professionals, we still struggle with the question of whether to talk about race in voir dire. This essay discusses our obligation as judges, academics, and practitioners to understand how unconscious racial bias exists in the hidden belief systems of many, if not all, jurors. These actors must also recognize that open dialogue in jury selection is a proven strategy against the effects of individual undetected prejudice. Furthermore, attorneys must concede hidden bias in themselves before fully comprehending the devastating impacts of racial biases. The events of the last four months in Ferguson, Missouri have exposed potential jurors to experiences dominated by issues of race. The opinions, beliefs, and prejudices of future fact-finders will be greatly shaped by how they perceive these events and interpret the issues.
January 29, 2015
On November 5, 2014, the Supreme Court heard argument in Yates v. United States. Yates is somewhat of an oddball case. It deals with a small-town Florida fisherman convicted of the “anti-shredding provision” of the Sarbanes-Oxley Act (commonly referred to as SOX), a law passed to curb corporate malfeasance in the aftermath of the massive accounting scandals—Enron, WorldCom, Global Crossing—of the early 2000s. However, the fisherman, John Yates, was not found guilty of cooking his company’s books or lying to his shareholders. Instead, Yates was convicted of throwing a crate of undersized fish overboard after a federal agent inspecting his catch told him not to. A jury found this constituted destroying “tangible objects” as defined under the Act, and the Eleventh Circuit affirmed. The Supreme Court will now decide just how closely red grouper relates to Enron in what some have dubbed the “fishy SOX case.” Oddball indeed.
December 29, 2014
In this podcast, Dan Terzian discusses his essay, Forced Decryption as Equilibrium—Why It's Constitutional and How Riley Matters, with NULR Online editor Jeff Wojciechowski.
September 05, 2014
Fourth Amendment jurisprudence seeks equilibrium. When new technology frustrates the government’s ability to obtain evidence, “the Supreme Court generally adopts lower Fourth Amendment protections . . . to help restore the status quo ante level of government power.” Conversely, when new technology “makes evidence substantially easier for the government to obtain, the Supreme Court often embraces higher protections to help restore the prior level of privacy protection.” One need not search far back to find equilibrium-seeking in action—see Riley v. California, a Supreme Court decision of just this past term on the Fourth Amendment and cellphones.
May 16, 2014
The Supreme Court ruled this term, in Kaley v. United States, that defendants have no opportunity to challenge grand jury findings that lead to pretrial restraint of potentially forfeitable assets they would use to retain counsel. Consequently, prosecutors are able to decide, without any opportunity for challenge from the defense, whether they would like to handicap defendants’ abilities to mount a case. The Court has certainly not been uniformly vigilant in maintaining a level playing field between prosecutors and defense lawyers, but examining Kaley in isolation, it is difficult to explain the authorization of such an imbalance of power. Recognizing the strategic effect of freezing assets used to retain counsel, however, would have spotlighted the differences in the protections afforded to wealthy and indigent defendants. The opinion thus is more easily explained as an effort to obscure the realities of justice in a world of scarce resources than it is an assessment of the appropriate use of prosecutorial power.
August 23, 2013
Last Halloween the highest court in the land literally went to the dogs, as the Supreme Court heard argument in cases involving two Florida narcotics-detection dogs, Aldo and Franky. In Florida v. Harris, Aldo finished best in show, with the Court holding for all practical purposes that a trained drug dog’s positive alert creates probable cause to search. The Court put Franky on a shorter leash, however, concluding in Florida v. Jardines that a dog conducts a search under the Fourth Amendment when it physically intrudes on a suspect’s property for the purpose of collecting evidence.
January 02, 2011
The Crime Victim’s Expanding Role in a System of Public Prosecution: A Response to the Critics of the Crime Victims’ Rights Act
The American criminal justice system is often envisioned as one in which public prosecutors pursue public prosecutions on behalf of the public—leaving no room for crime victims’ involvement. However, state and federal statutes and state constitutional amendments have challenged this vision. Perhaps the best example of such a challenge comes from the Crime Victims’ Rights Act (“CVRA”), a federal statute passed by Congress in 2004 that guarantees victims a series of rights in federal criminal proceedings.