Juror's objection on race leads to new trial

NASHVILLE — At the start of a trial earlier this month, a juror stood up to tell the judge he did not think that two black men should face a jury without black members.

The juror's words to Judge Cheryl Blackburn of Davidson County Criminal Court earlier this month — confirmed by lawyers and others present in the courtroom — led to the delay of a trial and brought Nashville into a growing national discussion about the diversity of juries.

The action followed a day of jury selection in which defense lawyers accused prosecutors of eliminating potential jurors because of their race, a claim the state denied.

Under U.S. Supreme Court precedent, lawyers cannot excuse potential jurors only because of their race. The 1986 case also said people accused of crimes do not have a right to a jury with members of the defendant's own race.

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But some question whether a jury truly has someone's peers if a person's race is not represented.

Ludye Wallace, president of the Nashville branch of the NAACP, was not aware of the case until The Tennessean contacted him. But he said race representation on juries was a concern and the NAACP would look into how juries are chosen here.

"We may need to see if we can raise this issue to make sure that you don’t just remove somebody from the jury selection process based on their race, creed or religion," he said. "You can’t do that."

Two people who agree that race should play a role in jury selection are Mary Hamilton and Tiffany Steele. Their relatives were set for trial April 18 before the juror spoke up and forced the jury selection process to restart.

Police accused Terance Bradley, 34, and Hurley L. Brown, 21, of attacking two people during a fight July 29, 2014. Shots were fired during the fight, and two men were injured, according to an arrest affidavit.

Both men have been in custody for about 18 months. They are charged with aggravated burglary, being felons in possession of weapons and aggravated assault with a deadly weapon.

Both have pleaded not guilty.

Hamilton is Bradley's grandmother. Steele is Brown's mother.

Both women said they sat in Blackburn's wood-paneled, sixth-floor courtroom watching lawyers choose the 14 people who would weigh the case.

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Generally, both defense and prosecutors regularly strike potential jurors. In fact, each side often is allowed to remove a certain number of potential jurors without giving any reason.

In this case, the defense teams — one for each of the men charged — asked that five people be removed from the jury, according to documents in the court file. The state asked to remove six people, according to those records.

The state excused one white juror, Hamilton and Steele said. The others were black.

That was every black person that was called up from the larger jury pool for questioning, they said.

"It was disgusting. It was irritating," Steele said.

Hamilton said she did not think it was fair for the men to face that jury, which did include minorities but no African-Americans.

"There's still prejudice out there," Hamilton said. "I don't care what anyone says."

Defense lawyers for Bradley and Brown objected, and the pool of potential jurors left the courtroom. The lawyers argued that the state was excusing jurors based on race, a practice deemed unconstitutional in the 1986 U.S. Supreme Court case called Batson v. Kentucky.

"There was diversity. Just not racial diversity in favor of my client," lawyer Jesse Lords, who represented Brown, said of the jury. "It’s his constitutional right to have his trial heard by a jury of his peers."

The Batson case did several things:

• It said that lawyers could not remove a person from a jury only because of their race.
• It said a defendant is not entitled to a jury completely or partially composed of people of the defendant's own race.
• It said if someone is concerned that a lawyer —  on either side — is discriminating during jury selection, they have to provide reasons why a person was removed.

In the Nashville case, prosecutors listed the following reasons on paperwork in the court file for removing the potential jurors: "language barrier," "son arrested," "answer to truth question," "family not treated fairly," "lied about record" and "disengaged." Defense lawyers also asked to remove the juror with the language barrier, who was black.

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Blackburn, the judge in the case, also removed one potential juror who was black. Lords said that juror was not cooperating.

“It is the policy of this office to not use race as a factor in jury selection," according to a statement from Assistant District Attorney General Megan. "In fact, this issue was emphasized to all attorneys in our office during a November 2015 staff meeting."

The reasons for excusing those individuals were listed before the defense lawyers raised their claim, King said.

The judge found no unconstitutional pattern to the state's strikes and allowed the case to go forward, Lords said.

Judges can face consequences for taking a stand on the racial makeup of juries. A black judge in Louisville, Ky., was suspended earlier this month pending a Kentucky Judicial Conduct Commission investigation into his dismissal of a jury pool of 41 people that he did not believe was representative of the population and other issues.

Jury selection in Nashville is based largely on randomly choosing people. Race is never officially documented during the process.

Christopher Slobogin, director of the criminal justice program at Vanderbilt University Law School, said the U.S. Supreme Court has in the past decade — and mostly in death-penalty cases — paid more attention to the reason lawyers give to exclude a juror.

The reasons have to be race-neutral and credible, he said. That standard is whether the reasons given to exclude a juror also would have applied to people chosen to hear a trial.

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"The defense probably has a pretty good argument there's a presumption of racial bias, but the prosecution can balance that by giving race-neutral reasons that are credible," Slobogin said. Without knowing more about the other jurors, he said it was impossible to determine unconstitutional discrimination in this case.

Frank Mondelli Jr., a lawyer for Bradley, called for the 30-year-old precedent to change.

"There needs to be a better way to ensure a person who goes on trial is judged by a jury of their peers," he said.

Mondelli was not the only one in Blackburn's courtroom who felt that way. The jurors who were chosen to hear the trial of Bradley and Brown talked briefly during a lunch break about the lack of diversity on the jury, according to lawyers in the case.

That prompted the one juror to raise his hand.

Blackburn dismissed the jurors after the man spoke up. Contacted through a court officer, she declined to comment because the case is pending.

"The judge specifically instructed the jury not to begin discussions regarding the case before hearing all the proof and arguments," King said. "Judge Blackburn felt that the jury's discussions regarding the racial composition of the jury violated her instructions. The district attorney's office respects the judge's decision to release the jury on that basis."

The case that has been pending since fall 2014 is set for another trial May 23. Hamilton and Steele will return to court to see their grandson and son, respectively, stand trial. They say the men are innocent.

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They lamented another delay in the case but said they do not think the first jury would have been fair.

"There was an angel in the courtroom that day," Steele said of the juror. "Good for him for speaking up."

Follow Stacey Barchenger on Twitter: @sbarchenger

How juries are picked

In Tennessee, people reporting for jury duty on any given day are chosen based on a random selection of Tennessee DriverServices data, Trial Court Administrator Tim Townsend said.

In Nashville, a smaller group of those people again are selected randomly for each case and are moved from a jury gathering room to individual courtrooms. They are given numbers that determine the order they will be called up to the jury seating to answer screening questions.

Lawyers use two types of strikes, ways a potential juror could be removed:

• A for-cause strike is used when a juror has a conflict or cannot be impartial. For example, the person knows too much about a case or cannot miss work.
• Peremptory strikes allow lawyers to remove a set number of potential jurors without giving a reason.