Lack of Black Jurors, Implicit Racial Bias Focus in Jury Selection

By Ned Meiners

SAN FRANCISCO, CA – In San Francisco County Superior Court, Dept. 21, Wednesday, Public Defender Kleigh Hathaway’s client, Duane West, who is African American, is accused of sexual assault—but none of the 24 jurors under questioning at the hearing were African American as well. 

West was arrested on charges of sexual assault in 2014 and has been waiting seven years for his day in court.

But this glaring racial disparity makes it difficult for him to be seen by “a jury of his peers.” 

Hathaway, who acknowledged she is white, began her questioning of potential jurors candidly. She observed that they had assembled a “whitish, tannish jury,” but not a single African American juror. In her opinion, race was the “big old elephant in the room.” 

She asked the potential jurors to examine their “implicit bias” and “unconscious assumptions” around race by engaging in an exercise. She requested that they imagine they were walking down the street and see two African American men approaching and to note what feelings or assumptions arise. Then she requested they repeat the exercise with Asian or white men and note how their feelings may change. 

For some jurors, the race of the men in the exercise made no difference. One white juror explained, “I’ve spent my whole life trying to be colorblind, I really don’t care.” 

Others spoke openly about biases they perceived. One juror explained that she was raised in China among a much more racially homogeneous group. 

She acknowledged that she found being approached by African American men “a little scary,” although she had never had any bad experiences in her own life to make her feel this way. This was a perception that she had learned. 

A white juror recounted how he had grown up in a predominantly white area of the Midwest. “I definitely recognize learned behavior.” he claimed. 

However, in his opinion, the accusation of a crime “levels the playing field.” The juror explained, “A Black man is just as capable of sexual assault as a white man, or an Asian man.” 

A large number of jurors believed they had some unconscious racial biases and behaviors. Hathaway acknowledged her own and encouraged jurors to be mindful of them. She explained, “I just have to check my biases, acknowledge them, and know what do.”

The attorney asked the jurors to pose one fundamental question to themselves, “Are you assuming he’s a certain kind of person because of his race?” 

While the questioning was open and permissive, there was one subject that was deemed off limits by Judge Christopher Hite. When Hathaway asked one juror what she thought of the Black Lives Matter movement, Judge Hite quickly interjected, “We are not going to go there.” 

While no African American was one of the 24 individuals questioned and from which the final jury will be drawn, there was a small number of African Americans in the jury pool of about 60 in attendance that day; none were selected for questioning. 

Currently, less than six percent of the population of San Francisco is Black or African American, and that has been declining steadily for decades. In spite of this, African Americans make up 41 percent of those arrested in the city, according to a 2016 Justice Department report. 

A 2020 study by the Berkeley Law Death Penalty Clinic found that prosecutors in California routinely strike African American jurors. According to the data, which was culled from a sample of nearly 700 cases, prosecutors used peremptory strikes to remove Black jurors in 72 percent of cases. They struck Latino jurors in 28 percent of cases, Asian American jurors in 3.5 percent, and whites in an astonishingly low 0.5 percent of cases. 

This trend, coupled with San Francisco’s dwindling African American population, makes it exceedingly rare to see Black jurors in the city. Hathaway spoke to this reality, stating, “Most likely no one on this jury is going to be the same race as Mr. West.” 

West’s trial will proceed in August once a jury is selected, but the difficulties in selecting a jury that represents the whole of the population of San Francisco will remain. When asked what he thought of the composition of the jury assembled in Dept. 21 that day, one juror expressed dismay. 

“It saddens me to see that,” he stated. “The lack of African Americans, it saddens me.”

About The Author

Ned Meiners lives and works in San Francisco. He received his paralegal certification from City College.

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