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  • ♪ ("LAST WEEK TONIGHT" THEME PLAYS) ♪

  • Moving on. Our main story tonight concerns jury duty.

  • A summons for which is one of the things you least want to

  • find in the mail, aside from maybe a bill, or a human toe.

  • And please, a pinky?

  • Call me when you're serious enough to send a middle piggy

  • then maybe we'll talk business.

  • Complaining about jury duty has long been

  • a beloved American past time.

  • Just watch this caller to a 90's local TV show,

  • delights the host with his whining.

  • GREG: They put us down in this holding pen,

  • they call it "the jury assembly room."

  • -Yeah. -GREG: The J-A-R, the JAR.

  • They stick you in this JAR, with like 300 other people

  • -for a whole week. -Oh man.

  • GREG: And I think it's like being in jail only

  • jail is a whole lot better because jail is a lot cleaner

  • -and has much better lighting. -Oh.

  • GREG: And we have to pay for our own food,

  • and we don't get to go outside, and we don't get free HBO

  • and we don't get to talk as much and we don't get healthcare

  • and we don't get conjugal visits--

  • You don't get any of that stuff?

  • GREG: We don't get any of that.

  • Now, he's actually right.

  • You don't get conjugal visits while waiting to be called

  • at jury duty. Although, judging from that call,

  • being at jury duty isn't that caller's primary obstacle

  • in that department.

  • As for not getting HBO I don't know what

  • he's complaining about there, they don't even give me free HBO

  • and I'm actively ruining it.

  • Now that man, Greg, was a regular caller to that show.

  • And I know that because we got curious about him after

  • watching that clip, and it turns out, he's a lot.

  • For example, Greg has a website where you can find classic

  • 'Gregism's' like, "Environmentalism is evil,"

  • or "The Baptists are the pin in the Homo Grenade."

  • Incidentally "Gregism's," isn't even a term I made up,

  • it's an actual section of his website.

  • We could honestly spend the rest of this show on Greg,

  • but sadly, we do have to move on.

  • Because, the important thing about jury duty--

  • You know what, just one more thing about Greg.

  • He's been tweeting, "It's almost time to have

  • a great hashtag-weekend everyone! Who's with me?"

  • every Friday, for the last very, many Fridays.

  • And read the room Greg!

  • No one has great hashtag-weekends anymore.

  • We're all sitting at home watching the days blur together

  • in a miserable hashtag-TIMESOUP.

  • But while it might sound cliché, serving on a jury really is

  • an essential civic duty. The right to a trial

  • by an impartial "jury of your peers," is enshrined

  • in the Sixth Amendment of the Constitution.

  • But the truth is, while your peers are supposed to be

  • chosen from a fair cross-section of society,

  • people of color are routinely excluded.

  • According to a study of 14 federal district courts,

  • under representation of the Latino and African American

  • populations is ubiquitous. Which is a problem

  • with huge implications for juries.

  • This social psychologist staged mock cases,

  • where some juries were all white,

  • and others were racially diverse.

  • And found that the diverse ones operated more fairly

  • and deliberated more comprehensively.

  • In this study they raise more facts from the trial,

  • they discuss a broader range of information,

  • they discuss the information more accurately,

  • actually in discussing the facts of the case.

  • They're more willing to have uncomfortable conversations

  • about controversial issues, like those involved in race

  • and racial profiling.

  • Yeah. It turns out juries are sort of like

  • presidents of the Spokane, WA chapter of the NAACP.

  • When they're entirely white,

  • things tend to go south, fast.

  • And this is reflected in the real world.

  • Researchers who examined felony trials in Florida

  • found juries formed from all white pools convict

  • Black defendants a full 16 percentage points more often

  • than they do white defendants. But,

  • that gap in conviction rates is entirely eliminated

  • when the poll includes at least one Black member.

  • And that's one of those facts that you probably assumed

  • was true, even though you wish it wasn't.

  • Like the fact that dogs don't really enjoy music,

  • or that Sean Penn's new wife is a year younger

  • than his daughter.

  • So tonight, let's take a look at why juries are so often

  • unrepresentative, and what we can do about it.

  • And the whole process starts with

  • what's called "a jury wheel," a pool of potential jurors

  • in a community. It used to be an actual wheel.

  • And for many years, Black people were

  • explicitly excluded from them. And even after

  • the Civil Rights Act of 1875 said you couldn't discriminate

  • against jurors based on race, many officials would still

  • find ways to remove them, like by printing their names

  • on different colored paper, so they could be avoided

  • during the supposedly random drawings.

  • And while thankfully, that doesn't happen anymore,

  • our current system has many flaws, that can end up

  • having a similar result. For instance, nowadays,

  • jury wheels are often computerized lists gathered

  • from voter registration and driver license records.

  • But there's a big problem there,

  • as this public defender in New Orleans explains.

  • Not everybody's registered to vote,

  • and not everybody owns a car, and has a driver's license.

  • The problem is when we use voter registration

  • or DMV records, we're probably excluding

  • around 35 percent of New Orleanians.

  • Right, 35 percent of people are excluded there.

  • And being registered to vote and owning a car

  • doesn't affect whether you're qualified to serve on a jury,

  • it just affects how much money you probably spend

  • on bumper stickers.

  • Bumper stickers! Think of them as traffic twitter.

  • That's not a compliment.

  • And the exclusions don't stop there.

  • Most states ban people with felony convictions,

  • and with juror pay being incredibly low,

  • lower income people can be unable to afford to take part.

  • Both of which disproportionately exclude people of color.

  • So inherently, the system is already biased.

  • And that's before you even get into the mistakes

  • that jury summoning systems can make, which to be fair,

  • can sometimes, be pretty fun.

  • I got "Jerry" duty.

  • I said, "What's 'Jerry' duty?"

  • "Summons for "Jerry"-- "Jerry" Service."

  • If you're picked then you go up to the judge and then you say

  • if they're guilty or not guilty.

  • Yeah, Jacob got jury duty. And while I can't believe

  • And while I can't believe he found Casey Anthony not guilty,

  • that's what he and his "Jerry" decided,

  • and we just need to live with that.

  • But some errors are significantly less fun.

  • For instance in Connecticut, it emerged

  • that their jury selection computer program

  • had accidentally read the 'd' in Hartford

  • to mean 'deceased.' So for nearly three years,

  • it never summoned anyone from Hartford,

  • or indeed, New Britain, the second largest city

  • in that district because their list of names

  • had been accidentally misplaced,

  • and was never entered into the program.

  • And the thing is, those two missing cities accounted for

  • 63 percent of African Americans in the district,

  • and 68 percent of the Hispanic population.

  • Which is horrible! 'Cause if you're going to

  • forget a town in Connecticut, why not forget Danbury?

  • Because, and this is true, fuck Danbury!

  • From its charming railway museum,

  • to its historic Hearthstone Castle,

  • Danbury, Connecticut, can eat my whole ass.

  • I know exactly three things about Danbury.

  • USA Today ranked it the second-best city to live in

  • in 2015. It was once the center of the American hat industry,

  • and if you're from there, you've got a standing invite

  • to come get a thrashing from John Oliver,

  • children included, fuck you.

  • Now, that Hartford error was made by the government's

  • own system. But many courts, actually contract out

  • their jury selection to companies like these,

  • who promise to run the process cheaper and more effectively.

  • But private companies can be surprisingly unreliable.

  • Take what happened outside Tulsa, Oklahoma,

  • where a Black man was tried by an all-white jury

  • drawn from a pool of 200 jurors without

  • a single Black person in it, after the company handling

  • jury selection accidentally excluded zip codes

  • where 90 percent of its Black residents lived.

  • Then there's Allen County, Indiana, where this company

  • had a system that was programmed to work through an alphabetical

  • list of townships, and stop when

  • it reached ten thousand names. Unfortunately, it turned out

  • 75 percent of African Americans in that county,

  • happened to live in Wayne Township,

  • towards the end of the alphabet.

  • Meaning, they had roughly half the chance of being included

  • on a jury, than a truly random system would have produced.

  • So yet again, alphabetization fails us.

  • I've said this for years, it's an ABC supremacist system,

  • that disrespects the better end of the alphabet.

  • 'Cause think about it. 'Z' has got all the hotties!

  • Zayn, Zoe, Zendaya, Zac Efron and of course, Zonkeys.

  • Half donkey, half zebra, all sex.

  • Now the extent of that Indiana error only emerged

  • when a man who had been convicted there

  • sued over the makeup of his jury,

  • and his lawyer pointed out to the State Supreme Court

  • just how lax the design process had been.

  • That's true.

  • That county's jury system was originally designed

  • by a college student. Whose previous job incidentally,

  • had been working at a head shop.

  • And look, there are plenty of jobs that people with

  • head shop experience are qualified to do,

  • for instance, cleaning bong resin off an Ikea couch cushion

  • or going on a late night snack run to 7-11

  • and only getting 40 percent of what everyone asked for.

  • I'm just not sure that programming a county's official

  • jury list is one of those jobs.

  • And whether the errors in these programs were deliberate

  • or just careless, the result is the same.

  • And I'd love to tell you mistakes like these are rare,

  • but the truth is, no one knows how common they are.

  • We only know about the examples that I've mentioned so far

  • because of lawsuits that took years!

  • Private vendors often won't reveal details about

  • their systems, claiming their algorithms

  • are a trade secret.

  • And 39 out of 50 states provide no public access

  • to jury data. So, your court system might have

  • a massive problem, and until a nine-year-old

  • shows up for a murder trial, no one would have any idea.

  • And all of this is before jurors even show up

  • for selection, at which point, things can get even worse.

  • Because prosecutors tend to exclude Black jurors.

  • Sometimes out of implicit bias,

  • but sometimes, out of a bias that is pretty fucking explicit.

  • Just watch this Philadelphia DA addressing

  • a room full of prosecutors in a leaked 1980's training video

  • explaining which jurors they might want to avoid.

  • Another factor, I'll tell you, if--

  • You know, in selecting Blacks, again,

  • you don't want the real educated ones.

  • Again, it's-- this goes across the board,

  • of all races, you don't want smart people.

  • Uh... And again, but-- if you're sitting down

  • and you're gonna take Blacks, you want older Blacks.

  • In my experience, Black women--

  • young Black women are very bad. Uh, there's an antagonism

  • I guess maybe 'cause they're downtrodden

  • on two respects. They got two minorities,

  • they're women and they're Black,

  • so they're downtrodden on two areas,

  • and they somehow, uh, want to take it out

  • on somebody and you don't want it to be you.

  • Okay, first, any white people who use

  • the word "Black" as a noun and not an adjective

  • are pretty suspicious. Throw in that mustache,

  • and suddenly it feels like a Spike Lee period piece.

  • And even putting aside the bigotry there,

  • the only time it's acceptable to say,

  • "We don't want smart people," is in a training manual

  • for selling LuLaRoe. Because if your business model

  • is, "Sell 5,000 ugly leggings on Facebook

  • to the people who hated you in high school,"

  • then, yeah, you're gonna want

  • to weed out the smart people.

  • Now, we reached out to that prosecutor,

  • who was very upset saying... (READS PROMPT)

  • ...even though he agreed that...

  • Something slightly undercut by the fact, that A,

  • you just heard him say, "young Black women are very bad"

  • and B, a later review of felony cases

  • that he tried found he removed Black jurors

  • at such a high rate, the odds of it happening

  • by chance were...

  • And that guy is not a one-off.

  • Recent studies in North Carolina and Louisiana

  • found prosecutors striking Black jurors

  • at twice and three times the rate of white jurors.

  • And if you're wondering how they were able to do that,

  • it's probably worth knowing that in a trial,

  • lawyers have two ways to remove jurors.

  • The first is a so-called, challenge for cause.

  • That's where they can show that a juror

  • can't be impartial because of some connection

  • to the trial, or because they were somehow

  • unfit to serve. The second

  • is a peremptory challenge. Where they can remove

  • a limited number of jurors with no explanation.

  • Although, since the 1986 Supreme Court ruling,

  • they can't exclude jurors purely based on race.

  • It's something that this HLN host explains

  • in a borderline aggressively literal way.

  • What happens is the prosecution and defense

  • each have 10 jurors each that they can reject

  • for any reason at all, or for no reason.

  • Unless they believe the other side

  • is playing the race card. And they can then challenge

  • that peremptory challenge.

  • Okay, I've got a lot of questions

  • and absolutely none of them are about peremptory challenges.

  • First, why use the loaded term, "playing the race card" at all?

  • Uh, second, why imply it means acting

  • in a racist fashion, when it doesn't?

  • But most importantly, how long did that man

  • walk around with that race card in his suit pocket?

  • Was it just for the show, or does he always walk around

  • with it, on the off chance he has

  • to explain peremptory challenges to someone?

  • And if so, does he ever go to pay for something,

  • accidentally pull out his race card,

  • and then say, "Oops! That's not my wallet,

  • that's my race card," to the utter bewilderment

  • of the cashier? Also, how did he get that card?

  • Did he make it himself? 'Cause that'd be weird.

  • But it might actually be weirder if he'd asked someone else

  • to make it for him. That would mean he asked

  • the producer, "Hey, can you make me a race card

  • for my segment on jury selections?"

  • To which she probably said, "What do you mean?"

  • And he said, "You know, like a physical card

  • that says 'Race Card' on it." And then the producer said,

  • "Why?" and he said, "'Cause I'm trying

  • to explain lawyers playing the race card

  • when striking jurors." To which the producer said,

  • "But can't you just say the phrase,

  • 'playing the race card' or, you know,

  • not actually say it at all?" And he said, "Absolutely not."

  • So, a production assistant then had to spend 20 minutes

  • printing the words, "race card," on a red card.

  • Is that how it came to exist? And what happened to it

  • after the show? Did he throw it away,

  • or did he put it on his desk just in case he ever needed

  • it again? And if so,

  • did someone ever walk by and say,

  • "Hey, what the fuck is that?" to which he replied,

  • "Oh, that's just my race card," as if that's a normal thing

  • to say or to have. And finally,

  • and I know this isn't the most important thing,

  • why does it say "Race Card" on it?

  • It's already a card, shouldn't it just say, "Race"?

  • Because then the thing he's actually holding up there

  • technically a "Race Card" card, and if so,

  • what the fuck does that mean? I've got so many questions

  • about this, and I know we don't have time,

  • but I guess my broader point is,

  • there are two ways for lawyers to strike jurors,

  • and HLN is a deeply weird television network.

  • But while the Supreme Court said

  • that you can't strike jurors based on race,

  • it turns out that's a pretty easy rule

  • to get around. All you have to do

  • is just come up with some reason

  • other than race, to strike a juror,

  • and then do it anyway. Remember that lawyer

  • that you saw earlier? He was speaking after

  • that ruling was handed down. And was openly instructing

  • prosecutors on how not to get caught.

  • Let's say you strike three Blacks to start with,

  • first three people. And then it's like

  • the defense attorney makes an objection

  • saying that you're striking Black--

  • But you're not gonna be able to go back and say--

  • make something up about why you did it.

  • Write it down, right then and there.

  • 'Cause sometimes on that line, you may want to ask

  • more questions of those people, so it gives you more ammunition

  • to make an articulable reason as to why

  • you're striking them, and not for race.

  • Wow.

  • It's pretty bizarre to see a government official

  • so flagrantly teaching people how to do something illegal.

  • It's like if How to Get Away with Murder

  • was an educational series where Viola Davis

  • explains how to literally get away with murder.

  • Which she'd absolutely crush, by the way.

  • I'd gladly watch multiple seasons

  • of her describing in vivid detail

  • how to dismember a corpse and dissolve the body parts

  • in acid. And look, to this day,

  • prosecutors use a wide variety of bullshit reasons

  • to strike Black jurors, some of which,

  • are just flat-out ridiculous. Like saying jurors were...

  • In fact, just listen to this public defender

  • describe a juror strike that he once saw.

  • I had a juror, an African American woman,

  • who was actually excluded because she was wearing

  • what's called a puffy coat.

  • Yeah, she was excluded for wearing a puffy coat.

  • And a jacket should never be an acceptable reason

  • to exclude someone from a jury, unless it's the one

  • that Post Malone wore to the American Music Awards.

  • He looks like he's supposed to jump out of a cake

  • at a mariachi-themed gender reveal party.

  • And if you want to see the lengths

  • to which prosecutors are willing to go,

  • just look at the multiple murder trials

  • of Curtis Flowers in Mississippi.

  • His case made it all the way to the Supreme Court,

  • which decided that his prosecutor

  • had repeatedly, and blatantly, tried to whitewash the jury.

  • And that opinion was written by maybe the last justice

  • you'd expect.

  • REPORTER: Justice Brett Kavanaugh wrote that a white,

  • Mississippi prosecutor's goal was to have an all-white jury

  • decide the fate of an African American man

  • accused of murder, which is unconstitutional.

  • The court's newest justice said that District Attorney

  • Doug Evans waged a...

  • It was Curtis Flowers' sixth trial

  • for the same quadruple murder. Kavanaugh pointed to a pattern.

  • Noting that Evans had removed 41 of the 42

  • prospective Black jurors over the six trials.

  • Forty-one of 42 jurors. You know you're doing

  • something wrong when it's so flagrant,

  • even Brett Kavanaugh has a problem with it.

  • A man who's done exactly two good things in his life.

  • This decision, and making it acceptable

  • to spend your entire job interview

  • screaming and crying.

  • And it wasn't just how often that prosecutor

  • struck Black jurors, it's how blatantly he did it.

  • Because while, on average, he asked the white jurors

  • who were seated, "one question," he asked the Black jurors

  • he struck, "29." And how do you ask anyone

  • that many questions about anything?

  • That is too many even for a first date

  • who's desperately trying to keep the conversation going.

  • "Uh, let's see... I've asked about

  • where you grew up, what you did for work,

  • whether you like your job, whether you have any siblings,

  • whether your siblings are older or younger,

  • what you like to do for fun, what kind of music you like.

  • What else is there? 'Do you like rakes?'"

  • And a prospective juror in one of Curtis Flowers' trials

  • felt pretty clear about why she'd been struck.

  • They just told us they didn't need us.

  • I think they might assume that because I was Black

  • that I was gonna agree that he was innocent,

  • just by the color of his skin. But I actually

  • would have listened to the evidence,

  • and had an open ear. I actually was looking forward

  • to serving.

  • Look, it is ridiculous to assume that a juror

  • would be biased, just because the defendant

  • is the same race. Of course a Black person

  • can be impartial when the defendant is Black.

  • In the same way that I can be impartial

  • if the defendant was an owl.

  • To suggest otherwise is extremely insulting,

  • not just to myself, but to all owls.

  • And these decisions have consequences.

  • Curtis Flowers spent 20 years on death row

  • and is currently out on bail, awaiting a potential

  • seventh trial. So taken all together,

  • it's pretty clear that through how we decide

  • who serves, to how the list is administered,

  • through who we let lawyers select,

  • we are making a mockery of the phrase,

  • "a jury of your peers." Because who exactly

  • is the, "you" there? The defendant's peers,

  • or the prosecutor's peers? That's a pretty big difference.

  • And as we've seen, the impact of having

  • people in a jury room who can speak

  • to what being Black in America is like,

  • and how that might effect your relationship

  • with law enforcement, can be hugely beneficial.

  • And yes, that might make a prosecutor's job

  • a bit more difficult. But the role of a court

  • is not to make it fucking easy, by having cases heard

  • by only a group of white people.

  • Or to use the proper collective noun for that,

  • a Whole Foods. I'm serious,

  • try it in a sentence. Look at that gaggle of geese

  • flying over that Whole Foods of Abigails.

  • So how do we fix this? Well there are four

  • basic steps we could take. One, broaden jury lists

  • so they don't exclude large sectors of the community.

  • Someone suggested using income taxes,

  • for instance. Two, make that data public,

  • so we can see if there were errors

  • in compiling potential jurors.

  • Three, increase juror pay, so the people who miss work

  • don't suffer financial hardship.

  • And finally, reform the process behind peremptory challenges,

  • to make it more practically difficult

  • to strike jurors by race.

  • And while, yes, this is a lot of work,

  • it is worth it. Because as we've discussed

  • before on this show, every gear

  • in the criminal justice system is unfairly biased

  • against people of color. From policing, to bail,

  • to the shortage of public defenders,

  • to punitive sentencing, to incarceration,

  • to re-entry from prison. And this is yet another

  • to add to that depressing list.

  • Because right now, too often, our current system

  • would systematically weed out a qualified person

  • who actually wants to serve, and leave in

  • someone who aggressively doesn't,

  • 'cause he can't watch HBO in fucking the jury box.

♪ ("LAST WEEK TONIGHT" THEME PLAYS) ♪

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