Right after I moved to Washington, in 1983, a young guy I knew from Brookland named Dave Robinson told me of his recent jury service at D.C. Superior Court. Robinson’s case involved a man arrested for assaulting a Metro Transit Police officer. The suspect was smoking a cigarette on a Metrobus and ignored the driver’s request that he put it out. An officer arrived and tried to slap handcuffs on him. The suspect punched the officer, wriggled free of his jacket, and fled. He probably would have escaped prosecution had he not returned a few minutes later in search of his jacket. Unfortunately for the assailant, the officer was still on the bus. This time, the smoker didn’t get away.
Most of the jurors in the case were elderly women. Robinson was the only Caucasian. He listened as the jurors debated how they would select the foreman. After a few minutes, Robinson interrupted. “Excuse me,” he said, “but I just wanted to say that I really think he’s guilty.” The other jurors stared silently at him for a moment, before nodding in agreement and shuffling back into the courtroom with their verdict.
I was thinking about Robinson this past May, when I tried a case before a jury for the first time in five years. It was a civil commitment case, brought by the legal guardian of a person who was having mental-health issues. The court had asked me to represent the person subject to commitment. A panel of about 30 prospective jurors was brought into Judge Linda Davis’ courtroom at 500 Indiana Ave. NW.
The first step was jury selection, an ordeal that I’d have to endure on my own. The court was paying me $65 per hour—less than one-third of what blue-chip law firms bill for their first-year lawyers—so hiring a jury consultant was out of the question. From our seats at counsel’s table, opposing counsel John Howard and I looked over the panel as Davis conducted the voir dire, the part of jury selection where the court weeds out juror candidates whose partiality is open to question. So the judge asked the jury pool: Do you or does anybody you know suffer from mental illness? Are you, or is anybody you are close to, a lawyer? And so on.
Jury selection is not an exact science. Lawyers know in advance the name and age of prospective jurors, along with their occupations. In huddles at the bench, we hear detailed answers about possible areas of bias, private sessions that are inaudible to the rest of the courtroom thanks to the judge’s background-noise maker. Our decisions on who gets ousted and who stays are based in large part on that information, plus our often-shaky intuition. Then, of course, there are other intangible considerations. In one case years ago, the prosecutor and the three defense lawyers, all young men, agreed that a particularly attractive young woman sitting in the first row would not be stricken.
As I sat with my client in the commitment case, I noticed that there were only four people of color on the 30-member panel. I was wondering if the group had been flown in from Klamath Falls, Ore.
If it were a criminal case, I might have asked the judge to call for a new panel, but I didn’t see much of a point in a civil commitment case. Besides, the panel members not excused for cause, as a whole, looked like a fair bunch, so we proceeded with the jury selection.
Two of the black panel members—both women—were seated in the box. Ideally, I wanted them, because my client was a black woman, and you want jurors who will identify with your client. However, Howard, who is African-American but was playing to win, struck both. Under the Constitution, lawyers aren’t allowed to strike on the basis of race, but everybody does it anyway. If you challenge a particular strike, all counsel has to tell the judge is “She doesn’t seem to be all there” or “I didn’t like the way he was looking at my client.” Only where there is an obvious and systematic exclusion of members of a race will the court intervene. Striking two black jurors doesn’t amount to an obvious and systematic exclusion.
The other two blacks didn’t get close to the box. Thus, I had an all-white jury on my hands. That’s right, eight whites, zero blacks, in what was once known as Chocolate City.
By the way, I lost the trial.
Regulars at D.C. Superior Court have fixed notions of how business is done in the local halls of justice: Security checks at the front door are slow and annoying; not all court employees are helpful; the juries are mostly black. When things change, people notice. Sgt. David Sledge of the Metropolitan Police Department recently walked into a D.C. courtroom to testify in a criminal case. “I said, ‘Damn.’ Eleven out of 12 jurors were white,” says Sledge. “I’ve been on the force 19 years. That’s the first time I ever seen it like that.”
Other anecdotes also bolster the notion of jury blanching at D.C. Superior Court. A tour of the courthouse on Monday afternoon, July 12, furnished these tallies:
•Six of the seven jurors hearing testimony in a wrongful-death case before Judge Frederick Weisberg were white.
•A jury of five whites, two blacks, and one Asian heard a legal-malpractice case in the courtroom of Judge Stephanie Duncan-Peters.
•A jury of six whites and one black listened to a civil case before Judge Melvin R. Wright.
•On the criminal docket: Judge Ann Keary presided over a trial with a 7-5 white-to-black ratio, and Judge Lynn Leibowitz’s jury was 8-4 in favor of whites (including alternates).
Where was the city’s African-American majority that day? In only two courtrooms: A heroin-distribution trial before Judge Thomas Motley had 11 blacks and one white, and a civil case before Judge Steffen Graae had five blacks, two whites.
Graae, who retired on July 31, has seen a demographic inversion at work in the courthouse, with majority-white juries popping up more frequently. “I’ve found it, and my colleagues have discussed it,” he reports, “and it’s a phenomenon that has occurred over the last six to eight months.”
If the customer-service line next door at the Department of Motor Vehicles is a barometer, however, there hasn’t been a sea change in the city’s racial makeup since the 2000 census, which found a population that was 60 percent black, 31 percent white. “There have been some questions raised about the [low] number of black jurors,” says Wright, chair of the D.C. Superior Court’s Jury Committee, adding that the issue has been raised to him by both judges and lawyers.
The busiest litigators of this city—those who know their D.C. Bar number by heart—are concerned about the whitening of the D.C. jury pool. “There’s not a lawyer in town who practices in the courthouse who hasn’t recognized the change,” says Vincent McKnight, an attorney who represents plaintiffs in civil actions.
“In general, the jury pool does not match the population of our city,” says Wayne R. Cohen, president of the Trial Lawyers Association of Metropolitan Washington, D.C. “It is a major issue, because claimants in court are not able to have their cases tried before a jury of their peers.”
And that’s as close as the legal establishment has come to determining just what’s happening on the third floor of the courthouse. The court’s juror office keeps the very same data that defense attorneys and prosecutors receive—namely, ages, addresses, and occupations. There is a database entry for race, but it is listed as optional. According to Wright, “very few” potential jurors choose to identify their race.
“I don’t know what’s going on,” says Chief Judge Rufus King III. “That’s obviously something to try and figure out. The first thing we want to verify is, Are we getting a representative pool?”
Wright and the court’s jury committee are examining the issue. “Right now, we don’t know what the cause is,” Wright says.
During the course of several days in late July and early August, the Washington City Paper conducted an informal survey of the race of jurors as they exited the juror lounge. Of the 681 jurors surveyed, 383 (or 56 percent) were black, 287 (or 42 percent) were white. (The numbers of Asians and Hispanics were negligible.) Although not as low as some of the anecdotes reported in this story suggest, these figures show a disproportionately low percentage of blacks responding to jury summonses.
Wright says the issue of Asian and Hispanic representation among the jury pool has not been raised. But he adds: “We want broad representation of the community. At this point, we haven’t been taking statistics on that. We may do that in the future.”
Skipping out of jury duty was once a cakewalk. Before 1989, D.C. residents were summoned to serve two weeks. If that sounded like something of a misdemeanor sentence, there was an upside: Just about anyone could get an exemption from serving. Lawyers, physicians, professionals, mothers with children, and most people who would suffer financial hardship could get excused.
The system had a racial upshot. Jurors who stuck it out tended to be lower-grade government workers, unemployed or retired, and disproportionately black.
In 1989, the court adopted the catch phrase that haunts D.C. residents about every two years via U.S. mail. “One Trial or One Day” reads the killjoy summons. The current system has revoked most of the pre-1989 exemptions.
So these days, everybody must report for jury duty for one day, and, if seated as a juror, must serve until the end of the trial before being excused. When jury duty became a universal obligation, the number of white professionals reporting for duty increased. But the no-show rate went up. In the old days, when just about anybody with a good excuse could get out of jury duty, there wasn’t much reason to ignore a summons. With “One Trial or One Day,” that changed.
In 1999, Howard University professor Richard Seltzer published a study finding that only 18 percent of all eligible D.C. jurors actually showed up to the courthouse. Twenty percent ignored the juror questionnaires sent out to all residents, and another 40 percent did not receive their questionnaires at all. However, Seltzer says there was “no racial disparity” among those who appeared for jury duty. Sixty-one percent of jurors were black, and 34.2 percent were white. Thus, although there weren’t enough jurors showing up, those who did roughly reflected the population of D.C. in the late ’90s.
Seltzer blamed the poor jury response rate on the District’s inability to maintain a good record of its citizens’ addresses. In 1999, names of prospective jurors came from three lists: voter registration, driver’s license, and nondriver’s registration.
The court has since expanded its database of jurors, relying as well on taxpayer rolls and recipients of Temporary Assistance to Needy Families. Yet, according to Duane Delaney, clerk of Superior Court since 1994, the current juror response rate is 23 percent to 25 percent, only slightly better than that found by Seltzer five years ago.
“D.C. is an incredibly transient city,” says Delaney, citing Washington’s many universities, two military bases, and turnover on Capitol Hill every two years. “Washington seems to be a city where people come, stay a few years, and leave.”
Adding names to the jury list probably does more harm than good, because the court doesn’t investigate who is still living in town. Tom Munsterman, a national jury expert who is assisting Superior Court with its poor-response problem, says the existing list of potential jurors now is close to 900,000, more than twice the adult population of the District of Columbia.
“The problem is that we have a number [of addresses] that aren’t very good,” King says, adding that purging the bogus data would entail sending registered mail to the address of every name on the list and auditing what came back. According to King, “to thoroughly scrub the list runs about $5 an address, and we just don’t have the budget.”
The court does, however, have the money to examine response rates by ZIP code, a method that can shed light on racial disparities in jury service. Gregory E. Mize, a former Superior Court judge who is working with Munsterman as a consultant, says the ZIP-code data reveal “no significant disparities in rates of return.” According to Mize, the rate of response is more or less the same, whether in mostly white 20016 or mostly black 20032.
How, then, to account for courthouse perceptions of a whitening jury pool? Among the theories being passed around Superior Court: plain old gentrification, blacks moving to Prince George’s County, and hourly workers blowing off jury duty because the $30 per day stipend amounts to a pay cut. According to Superior Court spokesperson Leah Gurowitz, of the 55 percent of potential jurors who respond to summonses, nearly half bag out of service, listing reasons such as hospital stays, recent moves, and felony convictions.
Judge Wright has a theory, and it’s called “I Do Like Mondays.” Although the current system is tough on exemptions, it’s easy enough to get a deferment. For whatever reasons, says Wright, a disproportionate number of people seeking deferments “appear to be white.” And: “One of the things we seem to find is that a lot of the jurors who ask for deferments ask for Mondays [as a rain date],” says Wright.
Ninety-five percent of the court’s civil juries are seated on Mondays—yielding a possible explanation for the apparent whitening of civil juries downtown.
Wright’s theory squares with my experience. My eight-whites, no-blacks jury was selected on a Monday.
Defense attorney Chuck Wilson thought he had a decent shot in a 2000 civil trial. His client had rear-ended the plaintiff in a case that was filed in 1996. In trial proceedings, the plaintiff claimed that he’d suffered a sore shoulder. The initial doctor’s appointment cost $3,000—exorbitant for what is known in the trade as a “soft-tissue” case.
Wilson could only hope that the jury viewed the expenses and damages the same way he did—as frivolous. “I was fairly confident that they hated the doctor. That was my hope,” he says.
The jury exceeded Wilson’s hopes. During the course of its deliberations, the jury sent a note to the judge. “Are we allowed to award the defendant the cost of litigation?” read the note, in Wilson’s recollection.
So much for the famously soft D.C. jury. Despite popular myth, juries in the District do not reflexively award millions to plaintiffs in civil cases and issue knee-jerk acquittals for accused murderers.
Recent trials bear witness to the juries’ parsimony. According to Wright, there have been 49 automobile-accident cases tried in Superior Court from the beginning of January through June, of which 34 resulted in defense verdicts or the damages awarded came in less than what the defendant last offered. “Most of the plaintiff verdicts were low. In 19 of the cases, the defendant made no [settlement] offer at all,” Wright says.
An extreme example of D.C. jury stinginess came from the courtroom of Graae. It was a collision case in which the plaintiff was driving a Ford Taurus. Another vehicle hit the car squarely on the driver’s side. The plaintiff suffered broken ribs, a punctured lung, and loss of teeth, and had a painful recuperation. The insurance company didn’t contest liability and conceded that $12,000 of medical expenses were necessary. Yet the jury returned a verdict of only $7,000. Graae immediately set aside the verdict on grounds of insufficient damages—which rarely happens.
To judge from Wright’s numbers, D.C. juries are running plaintiffs off the road more frequently than their counterparts elsewhere.
But Wilson maintains that the change has to do with increasing jury sophistication, not race. “I don’t see how the whitening of the jury pool would make it so [plaintiffs] are getting bad results….People see through junk if they’re African-American or Caucasion.”
The Trial Lawyers Association Internet discussion group has been abuzz with posts about the economic impact of the change in the jury pool. And Cohen says the issue has been looked at “hard-core.” “I think the impact has been that in some instances it decreases awards. In other instances it may increase convictions in a criminal context. In all cases, you are not getting the results you should in one way or another.”
There’s anecdotal evidence that the trend extends to medical malpractice cases, as well. According to veteran lawyer Christopher G. Hoge, this past February six medical-malpractice cases went to trial in D.C. In every case, the jury returned a verdict against the patient. “The insurance industry is winning the hearts and minds of the potential jury pools around the country,” Hoge says. “[Jurors] seem to recognize the correlation between their verdicts and their insurance premiums.”
Ken Annis, who has been representing plaintiffs in medical-malpractice cases for 30 years, declined to provide figures for the amounts of his settlements and verdicts, but he conceded that his post-2000 awards are substantially less than those from the ’80s and ’90s. “D.C. has become a much more conservative jurisdiction,” says Annis. “Jurors are now more sensitive to tort reform. They are less sensitive to the pain and suffering of the victim.”
The verdicts are changing the entire economics of civil litigation in town. Nona Bonanno, who represents defendants in civil suits, says that stingy verdicts are emboldening insurance companies. “In evaluating a case, the old formula used to be three times the specials, which are typically medical bills and lost wages,” she reports. “For example, if you had $5,000 in damages, an insurance company may have given you $15,000: five for the doctor, five for the lawyer, and five for the plaintiff.” Now, insurance companies are more skeptical, particularly in auto cases where there are no broken bones or property damage, and are often settling at less than the amount of the medical bills.
Since January, Bonanno says she has had three cases settle below the cost of medical bills. In the one case she had go to trial, she netted a verdict in her client’s favor.
Players on both sides of civil litigation won’t touch the question of whether the supposed whitening of the juries has prompted harsher verdicts. “I don’t know if it’s just because there’s white people on the jury,” Bonanno says of the changing verdict trends. “I think people are just trying to do the right thing with these cases. I still think if you have a strong case, a jury is going to give you money.”
Impressions of tougher juries carry over into the criminal sphere. “The juries over the last five years have been a lot more white and a lot more conservative,” says criminal-defense lawyer Karen Cleaver-Bascombe, adding that her last jury had nine whites and three blacks. “I think it’s harder to get an acquittal, because the conservative juries think that the police don’t lie,” she says. “They also have this incredible faith in the government—and that the government wouldn’t waste its time prosecuting someone unless they were guilty.”
Brad Wensheimer, head of the U.S. Attorney’s Superior Court Division, disagrees that there has been a watershed in criminal juries. “I think D.C. juries have a reputation for being tough,” he says. And veteran criminal-defense lawyer Paul J. Riley doesn’t believe white juries are more likely to convict. “It’s hard to get a conviction in a felony” regardless of race, Riley says, particularly in drug cases.
In June, defense attorney Lauckland A. Nicholas represented the defendant in United States v. Levancie Carr, a routine street-level crack-cocaine distribution case. Nicholas worked with a jury of eight blacks and four whites. It’s a racial composition that belies common perceptions that white condo dwellers such as those in Logan Circle, along the U Street Corridor, and around the MCI Center have taken over the city. Right after giving his summation, Nicholas, who is black, says he heard that “a lot of blacks don’t want to serve as jurors.” But he downplays the significance of race in criminal trials, and he does not think his job is any harder than it was a few years ago. “You still have a lot of acquittals,” he says.
“I’ve never had a situation where my client was found guilty because most of the jurors were white or black,” says Nicholas. He adds that “most jurors are pretty fair, black or white.”
The court’s brain trust can pore over ZIP codes, databases, and anecdotal correspondence until their robes turn gray. Meanwhile, there’s one common-sense solution that’ll get people of all races sitting in the box: Make jury service more pleasant and less inconvenient.
“I do have a child-care center. We will watch your children all day long,” says Delaney. He adds that there’s a juror business center where jurors waiting to be called to a courtroom can read. If they bring their laptops, they can connect to the Internet. At the end of their jury duty, an ATM will dispense the $30 per diem, plus a $4 transportation allowance.
To keep jurors distracted, televisions in the juror lounge show Ken Burns’ acclaimed documentaries on jazz, baseball, and the Civil War in a continuous loop. “I used to show National Geographic, until they showed insects having sex and I got complaints,” say Delaney. The jurors were next shown HBO, then soap operas. “I didn’t realize how risqué they were, and then I stopped that. We try to keep jurors entertained.”
To deal with those unlikely to be thus enticed, the court is making at least a token effort to enforce its summonses. If a juror doesn’t show up and the court knows it has sent the summons to the correct address, it will issue an order directing the person to appear before Chief Judge King on a Friday.
“For the most part, it’s not the scofflaw situation that I had anticipated,” says King, reporting that most such citizens overlooked or forgot about their summonses, or had some plausible excuse. “Most of the people who fail to show are not deliberately ignoring their obligation. And so I’m guessing a significant part of the problem is that we have bad addresses.” King reports no racial disparity among those who respond to show-cause orders.
But if a juror still doesn’t show up, a warrant is issued for the person’s arrest. The U.S. Marshals Service will call and invite the juror to appear in order to avoid such a fate. Most turn up at this point. But several have been taken into custody by the marshals and delivered to King. Ultimately, the renegades get a stern lecture from King about how jury service is a serious business, before being sent to the Juror Office to get a new date.
When their service date rolls around, they will, of course, sit in the jury lounge for a spell before being called for a panel. And if they get called into the box, two teams of lawyers and perhaps a consultant or two will agonize about whether their skin color prejudices them one way or the other toward their client. Perhaps they all should consider the words of legendary Washington criminal-defense attorney Edward Bennett Williams: “I take the first 12 in the box.” CP
Additional reporting by Jason Cherkis.
Art accompanying story in the printed newspaper is not available in this archive: Devon Bowman and Darrow Montgomery.