What happens when a potential juror admits he's racist?

Last week, a Boston criminal defense lawyer representing a person of color revealed his struggle while selecting a jury in Fitchburg. A member of the jury pool said he was biased, and that he doesn’t “care for Black people.” That juror was dismissed from the jury pool, but the case went to trial with an all-white jury. To answer questions about how often this happens and what safeguards are in place to protect against bias in the jury box, GBH News Legal Analyst Daniel Medwed joined Morning Edition hosts Paris Alston and Jeremy Siegel. This transcript has been lightly edited.

Jeremy Siegel: To start, let's go as basic as you can get, at least when it comes to the law in the U.S. What are the constitutional requirements about jury trials in criminal cases in the U.S.?

Daniel Medwed: Both the U.S. constitution and the Massachusetts Declaration of Rights provide that criminal defendants have a constitutional right to a jury trial. That trial has to occur in the district where the alleged crime took place, not necessarily where the defendant or the victim live, but where the events happened. What's more, the defendant has a right to what's known as a fair and impartial jury: jurors who are free of bias and who represent a fair cross-section of the relevant community. Now, Massachusetts has a very interesting and somewhat alarming history in this regard.

On the one hand, the positive side is that we were in the vanguard of states, one of the first states, to allow Black men to serve as jurors. There's a case from Worcester in the 1850s where two Black men served on a criminal jury. But on the other hand, we dragged our feet when it came to integrating women fully into the process. It wasn't until 1949, I believe, that our state legislature passed a law affirmatively encouraging this practice, and even then we were tardy in fully implementing that objective.

Paris Alston: We always hear about us as U.S. citizens having this right to a fair and impartial jury. But let's talk about what that actually means in practice, Daniel, because just going off of the example that we heard at the top, these things can come through in jury selection. Even though that one juror was taken out, it still ended up as an all-white jury. And we know that an all-white jury is 16 percent more likely to convict a defendant of color than it is to convict a white defendant. How does that play out, and what are some of the obstacles that can come about when trying to create a fair and impartial jury?

Medwed: There are lots of obstacles. Here are two of them, two main ones. The first is really structural, and there's not much you can do about it: What if the crime occurs in a very homogenous community where the racial and ethnic makeup of the population doesn't include many people who match the defendant's identity? Very little you can do in that situation. The second scenario is much more common. Let's say in theory, you could assemble a pretty diverse jury pool, a representative jury pool. How do you ferret out bias?

How do you winnow down the pool so that folks are fair and impartial? Lawyers and the judge have an opportunity to ask questions of prospective jurors. It's called the voir dire process, as part of jury selection. But people are seldom forthcoming with their foibles, their biases, their prejudices. That's what makes the Fitchburg case that you mentioned at the top so interesting, because the prospective juror was quite upfront about his racism, about his biases. Short of that rare situation, lawyers basically have to resort to gut instinct and basically profile jurors about who would be good or who would be bad for their client.

Siegel: You mentioned how lawyers and judges can ask potential jurors questions, and lawyers have the option of striking jurors from the pool. How exactly does that work?

Medwed: There are two ways that lawyers can do that. The first is called a challenge for cause. And that's where you strike a juror because they exhibit a clear bias or a conflict of interest. Say the prospective juror is related to the victim, or is an ex-police officer in a case where police testimony is going to prove vital — you can just strike them for cause. The second tool is much more nuanced, and trickier. It's called a peremptory challenge, and that's when you can strike a juror for no articulable reason, without any explanation.

In Massachusetts, each side — the defense and the prosecution — has four peremptory challenges in a criminal case. It goes up to 12 in cases where the defendant is facing a life sentence, but it really is a tool that is fraught with the risk of misapplication.

Alston: How can we make sure that they're used appropriately and that lawyers don't use them as a ruse to strike, say, all people of color from a jury pool?

Medwed: Well, for many years, that's exactly what happened, especially in the long and sordid history of the Jim Crow-era South, where prosecutors would try to craft an all-white jury in cases involving a Black defendant, or where the white defendant was accused of a crime of racial violence. In 1986, the Supreme Court tackled this head on in a case called Batson v. Kentucky, a very famous case in which the court basically empowered trial judges to scrutinize the pattern in which prosecutors utilize these peremptory challenges. And if they detect a racially discriminatory pattern, they can bounce the case. They can find a constitutional violation. But despite that case, which at this point is 36 years old, this happens a lot.

Siegel: Let's talk a little bit about what happens at the back end. Once the jury selected, the trial is going through and they're in the deliberation room, can you at all detect whether racism is part of the deliberations? Can jurors tell the court details about what is said behind closed doors?

Medwed: This is fascinating, because the answer is generally no. You can't engage in what lawyers call post-verdict inquiry into the jury deliberations for fear that the threat of that examination would chill the conversation, that people wouldn't speak their minds or vote their consciences if they knew they had to be accountable to the judge afterwards. It's a really interesting issue, and it's kind of counterintuitive because we have this really, really elaborate system before then where we ferret out the bad evidence and we leave only relevant and reliable information.

But on the back end, we slam the door shut. We don't go into the deliberation room. Now, the rationale here and I'm curious if you guys buy this, is that if we give the best evidence possible to 12 fair and impartial jurors, more often than not, they'll reach a just outcome. And that, of course, begs the question we've already explored. How do you get 12 fair and impartial jurors?