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Diversity in the Courtroom Part 1 – Jury Pool Biases

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Guest blogger Ahmed Davis, who is launching February’s series on diversity in the courtroom, deems himself a scientist with a law degree.  A chemistry major, he won the Ronald E. McNair NASA Scholarship which is designed to increase the number of minorities with PhDs in the fields of science, math, and engineering. With the “right stuff” to enter a PhD program, he turned instead to combine science and law for justice, and has bagged numerous awards for stars “under 40.”  Now Partner and National Diversity Chair of the IP trial firm Fish & Richardson PC, Ahmed shares some thoughts about counsel, clients, jurors, and jurists around the theme of diversity in the courtroom.

The first day of my federal district court clerkship was the final day of a multi-defendant bank robbery trial.  Barely introduced to chambers, I suddenly found myself ushered into the courtroom to cry “oyez”—the jury was ready to return a verdict.  Three defendants, each African-American and each represented by African-Americans, rose to hear their fate.  Afterwards, my judge thanked the jurors for their service and sent them on their way.  And that is when Juror No. 12—a young, Caucasian woman and the last of the jurors to exit the box—slipped past the two Caucasian prosecutors, flashed a thumbs-up, and said, “Good job.  We made up for O.J.”

Thus began my legal career, with a lesson that we all can heed as much today as I did thirteen years ago.  Despite our best efforts and the great strides we have made in this country, implicit race-related biases remain and can be brought into the courtroom by anyone.  We are, after all, products of our environment, and that sometimes engenders in us feelings antithetical to the higher moral ground to which we rightly aspire.  An astute counsel—regardless of ethnicity and independent of practice area—best serves the interests of her client and the larger legal profession when she prepares her case with the very real biases we each carry with us into the courtroom in mind.  If handled poorly, this can affect the outcome of your client’s case and irretrievably disconnect you from the jury.

When my trial witness, a diminutive Caucasian woman in her 50s, cried during my cross-examination I was unmoved—until I peeked at the jury and realized that a tall, goateed black man with a deep voice bearing down on her presented bad optics.  Never mind that I was in a suit and we were in a courtroom; had I continued, I would have lost the jury.  In another case, I understood completely why my Chinese-American opposing counsel explained his heritage and American upbringing during counsel introductions.  Representing a Japanese defendant in Texas on Pearl Harbor Day, he appreciated the moment and the unspoken bias the jurors might have.  Rather than ignore it, he addressed it as best he could.  His candor was refreshing.

Which brings us back to the Virginia bank robbers.  Defense counsel, unsurprisingly, demanded a mistrial.  Upon hearing what had been said, the judge rounded up the jurors before they could leave the courthouse and brought them back upstairs.  Sitting in the same seat where 15 minutes earlier she had rendered judgment against three others, Juror No. 12 now wept softly while explaining to the Court what she had meant by her words and actions, and the inherent conflict they presented with her pre-trial representations.  It was a sad exchange to be sure, the explanations entirely unsatisfying.  But the raw, exposed nerve taught me that even at our best, many of us struggle to leave the personal lens through which we view the world at the courthouse door.  And I do not think we want anyone to.  But we must always be mindful that these biases that lurk just below the surface, and we must deal with them frankly and honestly where we can.

Upcoming Posts in the Diversity in the Courtroom Series:

  • Part 2 – The Advocate’s Approach to Juror Biases
  • Part 3 – Diversity in studio71: An Interview with Judge Alfred Harrell Part 1
  • Part 4 – Diversity in studio71: An Interview with Judge Alfred Harrell Part 2



3 thoughts on “Diversity in the Courtroom Part 1 – Jury Pool Biases
  • A fascinating discussion is worth comment. I think that you need to
    publish more on this subject, it may not be a taboo matter but
    generally people don’t talk about these topics. To the next! Best wishes!!

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