The Dalai Lama said that “a lack of transparency results in distrust and a deep sense of insecurity.” If that’s right, Black people should have immense distrust in our jury system and should feel insecure in the notion that it can deliver justice.
Transparency is a necessary cornerstone of a well-functioning democracy. In the words of Justice Scalia, “requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” At its best, transparency leads to better collective decision-making. At a minimum, it forces actors to bear responsibility for their decisions and exposes those decisions to public scrutiny and accountability.
The Supreme Court recently explained that the jury is a pillar of American democracy, stating that “[o]ther than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process.” The jury is the community’s way of exercising control over our third branch of government. In theory, the jury represents the community’s judgment.
Despite the jury serving as a quintessential democratic body, the institution is shrouded in secrecy. Both grand and petit jury decision-making is shielded from view. The Supreme Court has given policy reasons supporting secrecy: it protects jurors and witnesses from harassment and outside influences, it encourages freedom of debate and full and frank testimony, and it guards against public scorn, while at the same time promoting public confidence. The Court has also given a more pessimistic reason for why secrecy is integral to the American jury system: it’s not clear whether the system could survive the scrutiny that comes with transparency.
But is the American jury system worth maintaining in its current form? The framers did not design the secret jury system for the intricacies of American democracy. Rather, they indiscriminately adopted the system—flaws and all—from Middle Ages England.
Few in the legal profession have reflected on whether jury secrecy makes sense today given our pluralism, especially when considering America’s history of anti-Black racism. Indeed, a review of history reveals the jury to be a key situs of race-based discrimination and racial subordination. The jury system has contributed to the over punishment of Black defendants and the under punishment of White people charged with crimes against Black victims. And the jury has never been fully accessible to Black Americans seeking to exercise their fundamental democratic rights. The jury has long been entangled in America’s history of racism.
Specifically, the practice of secrecy itself can work to the determent of Black people.
Start with the grand jury. This important body decides whether and what charges to bring against a criminal defendant. But that decision necessarily depends on what information the prosecution decides to present to the body, and there is no real oversight or accountability in the prosecutor exercising this function. This hurts Black people in two distinct ways.
First, the secret grand jury leads to the up charging of Black criminal defendants. As the old saying goes, a “grand jury would indict a ham sandwich.” What this actually means is that prosecutors can present a case to the grand jury in such a way that convinces the grand jury to return an indictment filled with trumped up charges against defendants—who are disproportionately poor and Black, which prosecutors can then use as leverage to extract draconian guilty pleas, fueling America’s mass incarceration problem. And because of the secrecy of the grand jury, the prosecutor does this with impunity.
Second, the grand jury’s secrecy works to the detriment of Black people who are victims of crimes committed by law enforcement. In that scenario, secrecy acts as a shield. A prosecutor can indict a ham sandwich until that ham sandwich is an officer accused of taking a Black life, such as Breonna Taylor’s. Kentucky’s Attorney General Daniel Cameron presented the case to the grand jury, which did not return any charges related to the killing of Ms. Taylor. When announcing the grand jury’s decision, Cameron chalked it up to the system, lamenting: “Justice is not often easy . . . It does not fit the mold of public opinion, and it does not conform to shifting standards.” That was supposed to be the end of that. However, one of the grand jurors came forward and requested permission from a judge to speak about the case—permission was necessary because grand jury proceedings by law are secret. This grand juror revealed that the prosecutor did not present them with the option of homicide charges for the officers, and accused Cameron of using the secret grand jury “as a shield to deflect accountability and responsibility.” And now, three grand jurors have called for Cameron’s impeachment, alleging “Cameron deceived the American people” in his handling of “the Breonna Taylor investigation and the resulting legal actions.”
While the grand jurors in Breonna Taylor’s case have spoken out in protest, a grand juror in the Michael Brown case was silenced. There, a grand juror wanted to divulge how the prosecution misled the public about the grand jury’s decision not to indict Darren Wilson, who shot and killed Michael Brown in Ferguson, Missouri in 2014. However, state law prohibited him from revealing what transpired in the grand jury. When this grand juror therefore requested permission to speak about the case, the courts denied it. The Eighth Circuit ruled that it is “beyond dispute that secrecy is an integral component to a functioning grand jury system and that once a state chooses to adopt it as a mechanism for screening indictments, the grand jury’s secrecy becomes an interest of the highest order because it is necessary for upholding the administration of justice.” Ironically, in that case, like in many others, the grand jury’s secrecy undermined the administration of justice for Black victims.
Turn to the petit jury; there, too, secrecy can be bad for Black people in that it allows for jurors to convict defendants out of prejudice. Begin with what should be an uncontroversial notion that all people harbor some form of bias, and it should be unsurprising that bias seeps into jury decision-making. But because the jury room is a black box, there is a lack of robust data that confirms this commonsense conclusion. However, the evidence that’s available supports this. As Professor Sheri Lynn Johnson summarized: “A cross-disciplinary survey of evidence about white juries and their evaluation of the guilt of black defendants provides a large body of data supporting the inference that, for many white jurors, race is a factor in a determination of guilt.”
Anecdotally, we know jurors express racism during deliberations. For example, in a Sixth Circuit case, United States v. Robinson, the White foreperson told two Black jurors that she “found it strange that the colored women [were] the only two that can’t see that the [Black] defendants were guilty.” In a case from the Third Circuit, Williams v. Price, a juror called a fellow White juror a “n****r lover” because she expressed sympathy for the Black defendant. Indeed, just a few years ago, the Supreme Court in Peña-Rodriguez v. Colorado dealt with a situation where one juror said to his fellow jurors that Mr. Peña-Rodriguez was more likely to be guilty of sexual assault, the crime he was charged with committing, because “Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.”
In all of these cases, the secrecy of jury deliberations would have allowed this racial bias to go undetected. The racism only came to light because a juror was brave enough to blow the whistle. Without a courageous juror willing to pierce the veil of silence, it’s highly unlikely that racism in jury deliberations will ever be exposed. In fact, in many jurisdictions it is extra difficult to discover racism in deliberations as lawyers are prohibited from contacting jurors even after a case is over; thus, lawyers can’t even probe the issue.
We have a jury system where there is no way of knowing what happened during deliberations unless a juror comes forward. Given this reality, one must imagine that for every time a brave juror comes forward to disclose racism seeping into deliberations, there are many more examples of racial bias appearing in deliberations that go unchecked. This conclusion becomes more likely when you consider the fact that Black people are disproportionately excluded from juries, and therefore aren’t even in the room to protect against potential racism. We must assume, then, that there are defendants languishing in prison despite the fact that members of their jury may have relied on racism to convict them. This should worry us all.
It’s time to revisit our secret jury system. It may not be the case that a secret system adopted from homogenous medieval England is the best for a burgeoning majority-minority country founded upon a racial hierarchy. It may be that grand jury proceedings should be more transparent so the public can see the immense power prosecutors wield and better understand how that contributes to the over incarceration of Black and Brown people. Perhaps we should scrap secret grand juries altogether in cases involving police defendants, as secrecy often perpetuates unaccountability. And while we may not be able to stop all people who harbor bias from serving on juries, we should consider recording jury deliberations to ensure jurors are not openly condemning defendants out of racial prejudice, strengthen voir dire to protect against openly bigoted people making it onto juries in the first place, and adopt a strict standard requiring a new trial if any inkling of bias ever comes to light. Because doing nothing allows racism to flourish.
Daniel S. Harawa, Associate Professor of Law, Washington University in St. Louis. I explore jury secrecy and juror bias in greater depth in Sacrificing Secrecy, forthcoming in Volume 55 of the Georgia Law Review, and The False Promise of Peña-Rodriguez, forthcoming in Volume 109 of the California Law Review.
Daniel S. Harawa, Are Secret Juries Bad for Black People?, Calif. L. Rev. Online (Feb. 2021), https://www.californialawreview.org/are-secret-juries-bad-for-black-people.