EDITOR’S NOTE: This story was instrumental in changing the way people of color are represented in Dane County, Wisconsin jury pools. It also won a State Bar of Wisconsin “Golden Gavel” award, the state's highest honor for law-related journalism.

Cover story
White Justice
Imagine being judged by a 'jury of your peers’ made up entirely of members of another race

By Chuck Nowlen
Published November 14, 1997
Copyright 1997, Isthmus (Madison, Wisconsin)

Well-intentioned? Maybe. Racially biased? Definitely.

That’s how a lot of people see the jury system in Dane County – and with good reason.

African Americans make up a fast-rising 3.3% of the county’s adult population and 26.5% of adult arrests. (In Madison, it’s a staggering 37%) Yet blacks constitute only 1.6% of the annual pool of eligible jurors, less than half of what even their small population would dictate.

Of the 7,545 people summoned for jury duty in Dane County last year, only 125 were African American.

No figures were available on how many blacks were actually selected for the 171 trials that took place, but, overall, less than half of eligible jurors were actually picked. That would translate to about one African American for every three 12-member jury panels. The numbers for Latin, Asian and Native American jurors are similarly slight.

“We have all-white juries in Dane County, for all practical purposes,” says Pat Watkins, who has spent the last three years studying the system for the League of Women Voters. “I’d like to know how the average white person would feel going into a courtroom – let’s say they were charged with abusing a black child or raping a black woman -- and finding an all-black jury. I think they’d be pretty darned scared.”

No one can pinpoint how often fear turns into travesty. Big Brother doesn’t hide tape recorders in the jury room, and jurors, in the absence of a rare post-verdict legal challenge, are under no obligation to discuss deliberations.

Still, credible horror stories are not that hard to find among all-white-jury cases in Dane County.

This summer, for example, the injury-related damages claim of Native American David Coon was thrown out after it came to light that the jury foreman asserted – incorrectly – that Coon “gets $10,000 a year from the government anyway just because he’s an Indian.” It was also falsely asserted that Coon’s college had been paid for by taxpayers, with the foreman concluding that “he’d be better off getting a job as a fishing guide.”

A new trial was ordered, but only after what some call a miracle: One of the jurors, Hona Lee Harrington, wrote what she describes as a “happenstance” steam-venting letter to the judge – completely unaware that it could carry any weight.

“The whole thing has made me decide never to get in trouble because I think the system is totally a matter of chance,” reflects Harrington. “I think people get screwed by the system all the time.”

Blatant and subtle

Sometimes, as in the Coon case, there are accusations of blatant bias involving all-white juries. A juror in a 1995 case says the panel she served on convicted an African-American man accused of drug possession after deliberations that she sums up as follows: “He’s black. Blacks do crack. So he must be guilty. We don’t want people like that in our community.”

“It was ridiculous,” says the juror, who spoke to Isthmus on condition of anonymity. “I couldn’t believe what I was hearing, but I swear to God that’s exactly what they said. I tried to argue, but it was hopeless – nobody wanted to listen. It was late on Friday afternoon, and everybody said they just wanted to go home.”

The man was convicted, despite what the juror feels were questionable circumstances surrounding his arrest. “I still feel bad about it to this day, but after what I saw, I just never want to go into that (courthouse) building again if I can help it.”

Then there are the accounts of subtler, sometimes unconscious bias that can go unchallenged on all-white juries. In considering lost-wages claims, for example, whites often undervalue the earning power of blacks, says Dan Rottier, David Coon’s lawyer. Cultural isolation can also produce elitist assumptions about family life.

“About 10 years ago, I tried a medical malpractice case for an African-American client who had three children,” Rottier recalls, “and in the course of trial, it came out that the client had had no thermometer in the house at the time. So one juror, a very well-to-do white woman, asked the question, ‘How in the world do you raise three kids without a thermometer?’ Well, I don’t have a thermometer in my house, but does that mean I’d be a terrible parent?”

Stories like these are not surprising to attorney Willie J. Nunnery, a member of a county jury study committee that since 1993 has been trying, mostly without success, to improve minority representation.

“Every day in Dane County, blacks go into an all-white jury setting in which no one relates to them as individuals – not the white prosecutors, not the overwhelmingly white judiciary and certainly not the white jurors,” says Nunnery. “The mere physical presence of even one minority juror can represent a certain degree of checks and balances on that. But, in Dane County, even those cases are very few and far between.”

Court officials plead innocent, citing a baseline jury-pool representation that roughly reflects 1990 Dane County census figures. They also refer to recent reforms aimed at attracting more minorities.

Potential jurors, for example, used to be mailed an eligibility questionnaire before they were sent a formal summons; they now get both in one mailing. In addition, the length of service was shortened from a maximum of four weeks to two, with arrangement made for day car, transportation and parking, if necessary.

Dane County Circuit Judge Daniel Moeser, who co-chaired the jury study committee, thinks there’s been some payoff.

“Anecdotally, I see more minorities in jury pools and on juries,” he says. “And I’ve heard comments to that effect from others – although, due to the small percentages involved, you still might only get one (minority juror) instead of none.”

In light of fast-changing demographics, however, the anecdotal evidence seems like it might be a mirage. The portion of African Americans in the county’s jury pool has actually remained relatively stagnant – from 1.4% in 1991 to 1.6% last year – even as the number of minorities in the community has increased by more than 25%.

Moeser attributes the stagnation to three factors – all of which, he says, are largely out of court administrators’ control.

* Chronically low minority response rates to computer-generated jury-duty mailings. This might be due to more frequent address-changing among people of color, but it also might reflect a hesitance among minorities to respond.

* Inter-agency friction that has stymied efforts to come up with more reliable addresses in the mailing lists. While some other states rely primarily on voter-registration lists, Wisconsin court clerks use Department of Transportation driver’s license and ID records.

* The high cost of more dramatic jury-selection reforms during a time when court resources are stretched thin.

Whatever the reasons, the dearth of minority representation on Dane County juries could spell trouble – and not only for minority defendants. “Just looking at the numbers and percentages with regard to minorities,” says local defense attorney Charles Geisen, “it’s pretty clear that appeals courts will be vacating more and more Dane County convictions over time.”

Defense Strategies

No one is less happy with the status quo than defense attorneys, who often face the prospect of representing black clients before all-white juries. Some attorneys, in fact, say they’ve occasionally discouraged minority clients from going to trial, even when they’ve had a strong case.

Attorney Geisen, meanwhile, last year secured an acquittal from an all-white jury for Daniel Davis, an African American accused of a drug-related murder. But in the Davis case, trial judge Patrick Fiedler allowed closed-room, one-on-one questioning of each prospective juror. In the lower-profile cases that make up the overwhelming share of Dane County’s court docket, this procedure, known as “individual voir dire,” is almost unheard of.

Says Geisen: “Very, very few people will acknowledge their biases and prejudices if they’re being questioned in front of 20 or 30 other individuals; and it may not be overt racism, but maybe some sort of personal experience that they’re reluctant to discuss in public.”

“When they were by themselves,” he adds, “there were people who truly spoke from the heart – some said that there indeed was possible prejudice, but that they would try to put it aside. I’m hesitant to even try to quantify how many, but several jurors were struck on that point.”

But public defender Robert Burke cautions that detailed juror examination can blow up in a defense attorney’s face.

“I’ve seen more cases lost by a bad voir dire than any procedure I know of,” says Burke, who estimates that 75% of his clients are African Americans. “The jurors are already disgruntled as hell even before they file into the courtroom – they’ve been sitting around for three hours waiting, and you can see them rolling their eyes as they listen to a bunch of exhaustive questions. So you risk turning them off before the trial even starts.”

Another procedural hedge against all-white jury bias is the “Batson challenge,” named for a landmark 1986 US Supreme Court case, Batson vs. Kentucky. This case established that, if the prosecution uses any of what are normally explanation-free peremptory strikes to exclude a minority juror, the defense can demand a race-neutral reason. If the reason isn’t sufficient, the case can be thrown out.

That’s what happened in Judge Moeser’s court last July when 25-year-old David Powers appealed his drunk-driving conviction by an all-white municipal jury in Sun Prairie.

Powers’s attorney, Pat Stangl, argued under Batson that the one potential black juror in the municipal trial had been struck without adequate examination. For the first time in his 18 years on the bench, Moeser declared a mistrial because of jury discrimination.

The irony: Powers is white. While Batson was originally intended to protect minority defendants, it has since been extended to all cases. The idea is that minorities have a constitutional right not to be excluded from any jury solely because of their race.

Still, while Batson might force prosecutors to think twice before striking minorities, it’s not an option in many cases.

“First of all, you need something to challenge,” Stangl explains, “and that’s not an issue if there don’t happen to be any minorities. Second, you need a defense attorney who will make the decision to challenge a strike. And, third, you need a prosecution that doesn’t have a race-neutral reason that will satisfy the judge.”

Achieving Change

Of course, the best way to combat the problem of inadequate minority representation on juries is to increase the number of minorities who serve.

To date, much of the burden for achieving change has been placed on minorities themselves, in the form of appeals to improve the response to jury-duty mailings. “The system will not change on its own,” proclaimed The Capital Times in 1993. “If change is to become long-lasting, it needs the participation of those who now feel shut out.”

Such advice has a let-them-eat-cake ring to it for some people, including Watkins, of the League of Women Voters. “I don’t think it’s the job of the white, so-called liberal establishment to decide what we have to do,” she says.

Watkins believes a bigger part of the problem is that minorities aren’t being summoned to serve to begin with. Her emphasis has been on improving the lists used to locate jurors.

National jury experts say computerized DOT records are among the most complete available for minority jury-selection purposes. They are more comprehensive than voter-registration lists because more people drive or get DOT ID cards than vote. They also are more uniform across the state.

But addresses on DOT lists are often in error, even though they are updated annually for Wisconsin jury clerks. This, officials say, is probably because people tend not to report their new addresses to DOT when they move. The impact on jury selection is profound, since blacks tend to move more often in Dane County than whites.

Would-be reformers like Watkins say DOT lists can be computer-sorted in ways that enhance address reliability. If nothing else, they say, the lists can be manually cross-checked against phone books and other records. Watkins hopes something can be worked out to bring more minorities into the jury pool.

But achieving this end may require more fundamental reform, and one national model of success is Minnesota’s Hennepin County. There, if jury pools do not match local demographics, further randomized computer work is done until the discrepancies are eliminated. The result: African Americans now make up more than 5% of Hennepin County’s jury pool. Their share of the local population is 4.6%

And that system has not been costly, says Administrative Supervisor Harold Minske, because only minimal follow-up is needed to track down jury-duty scofflaws.

“We use both voter-registration and driver’s-license lists, and we run them through a credit bureau every year to update the addresses,” Minske explains. “We end up with a very good yield. People here show up for jury duty and serve.”

Efforts to manipulate jury selection processes to increase minority representation are sometimes characterized as “jury-mandering.” That’s a concern for Dane County court officials, who urge careful consideration before a Hennepin County clone is set up.

At the same time, critics note that four years of local hand-wringing have not produced meaningful results. And, with regard to the current system, they say, the verdict is already in.

“I don’t buy all the excuses,” says Frances Huntley-Cooper, president of the local chapter of the NAACP. “If they really believed change was needed, it could happen. That’s what these people get paid for, and you can bet there’d  sure be changes if we were talking about white citizens and all-black jurors.”