Why it's not racist to consider the composition of the George Zimmerman jury

Today the prosecution delivered its closing argument in the Trayvon Martin murder case.  In a few days, a jury of 6 women, 5 of them white, will be deciding the fate of George Zimmerman.  I teach a class on the American jury system.  Although there has been a lot of reporting on the sex of the all female jury, race will become a real issue if this jury returns a not guilty verdict. Based on the available research on juries, I offer the following observations. 

Why only 6 jurors?   Some might be wondering why there are only 6 jurors instead of 12.  Although the Sixth Amendment of the constitution guarantees the following:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense

The Sixth Amendment leaves to the states to decide the number of jurors that serve.  In general, in criminal cases, most states have a jury of 12, but Florida's state law allows a jury of 6 to be seated. 

What, if any, is the relevance of race to a jury?  The seated jury consists of 6 women.  I would argue that the race of the jurors is more important than the sex if one were trying to predict the outcome of the case. 

On the one hand, the jury of 5 white women and "one minority" mirrors the racial composition of the area the crime took place in and that makes sense since the Sixth Amendment requires that the jury be drawn from the community where the alleged crime took place.  The Huffington Post describes the area this way, "The central Florida community of Sanford is in Seminole County, which is 78.5 percent white and 16.5 percent black, roughly mirroring the jury's racial makeup."  The rationale for the Sixth Amendment requiring a local jury is the belief that the community most affected by the crime should decide the fate of the accused because they have more incentive to "get it right" and catch the guilty person.

On the other hand, even though the racial composition of the jury reflects roughly the racial distribution of Seminole County, it does not mirror the racial composition of the state or the nation.  And that's where there might be a problem if a not guilty verdict comes back.  I argue in the class that I teach that juries are a hallmark of our democratic system because they serve as a citizen-based counterweight to the vast and awesome power of the government. It is supposed to be a bulwark against government tyranny.

But the legitimacy of the jury's verdict depends on whether the public perceives the jury to be representative of the community (however you define community, by neighborhood, state, nation) or whether the jury was skewed.  One can recall the riots that broke out after the assassination of Mayor Moscone and Harvey Milk, the latter was the first openly gay public official.  The crime took place  in San Francisco and an all straight jury delivered a verdict of voluntary manslaughter for Dan White instead of first degree murder.  The defense had used all of its peremptory challenges (a way to deselect jurors that does not require an explanation or justification) to remove the gay and minority jurors in the panel. 

If this almost all white jury returns a not guilty verdict or a lighter charge than murder in the Zimmerman trial, African American and other minority communities are likely to feel like they've been betrayed.  In the original jury pool of 40 from which the final 6 were picked, we know that "Five of the jury candidates were black, two were Hispanic, and the rest white."  During the questioning of potential jurors (the process known as voir dire), it is unclear how 6 of the minority jurors came to be deselected.

I am not arguing that there should be racial, ethnic, religious, or sexual quotas on a jury.  The reason a diverse jury is a strong jury, is not because all white people think the same way or African Americans have a distinct way of thinking from whites and other races.  Instead, it's a reasonable assumption that those who carry the same genetic and biological markers of race and sex (color and texture of your hair, skin color, male/female anatomy) will share a common set of experiences that others without those set of phenotypical markers will not.  I offer as an example to my class the experience of walking past a construction site.  I ask the men in the class what their experiences have been and they just shrug.  The women however report everything from creepy leering looks, to catcalls, to sexist and threatening remarks.  Every woman in the room knew exactly what I was talking about.  Why?  Because they had that shared experience by virtue of being women.

For that reason, the race of the jury is highly relevant.  Your race dictates the kinds of life experiences you have had, the nature of your interactions with members of other racial groups, and your worldview including notions of perceived threat and safety are also filtered through your race, sex, and sexual orientation.  Although the defense has downplayed it, the Trayvon Martin case is about race. The prosecution has argued that Martin was racially profiled by Zimmerman as dangerous because of his skin color.  How receptive you are to that argument depends on your race.  For this reason, Holly McCammon, a law professor interviewed by CNN, is right when she says:

The answer is likely to be that the all-female jury will have little or no effect on the ultimate decision in this case. Research shows that no one juror trait, including gender, is an accurate indicator of how a juror will vote. Rather -- and savvy trial lawyers know this -- the best predictor of whether a juror will side with the prosecution or defense is a mix of gender, race, ethnicity, religion, political ideology, personality, attitudes, and so on.

It is not racist to talk about the racial composition of the Zimmerman jury. We have never lived in the past, nor do we live now, in a colorblind world. Race itself influences how jurors process and comprehend legal arguments.  To ignore its effect is to put on rose-colored glasses.