Transcript: Jury System on Trial

Trymaine Lee: (BACKGROUND VOICES) Jury selection began this week in the trial of Derek Chauvin, the former police officer charged with murder in the killing of George Floyd.

Archival Recording: No justice. No peace. No justice. No peace.

Lee: Activists and media descended on the Hennepin County Courthouse in downtown Minneapolis for the trial of the white police officer captured on video with his knee on George Floyd's neck as Floyd said he could not breathe. No Minnesota Attorney General Keith Ellison is leading the State's case against Chauvin.

Chauvin is being represented by defense attorney Eric Nelson. And after some initial starts and stops, jury selection is underway. This is what Floyd's family and supporters have been waiting for since last summer: charges, a trial by jury, and ultimately a verdict.

(DRUMBEAT) The right to, quote, "a speedy and public trial by an impartial jury" is a critical piece of the justice system, baked into our Constitution. Juries hold tremendous power in our legal system to determine our fates. They often determine who lives, who dies, who goes to prison, and who goes free.

(DRUMBEAT) So the selection of a jury in Chauvin case is a critical first step. But what does impartial really mean? It's tough to get a conviction in cases against a police officer under ordinary circumstances. And in Hennepin County where Black folks make up about 14% of the population, how hard will it be for Black people to be seated on the jury in this case?

Archival Recording: This potential jury should represent all of the beautiful diversity of Hennepin County.

Lee: I'm Trymaine Lee. And this is Into America. Today we explore the hidden and not so hidden ways that juries reflect America's racial biases, efforts to fix them, and whether it's possible to have a fair and impartial jury in one of the most anticipated trials in recent memory.

The first juror in the Chauvin case was selected late Tuesday morning, a man dubbed "Juror Number Two." He's white, works as a chemist, and was the second person to be interviewed. The entire country is watching and waiting as the judge and attorneys select 12 jurors and two alternates in a process that is expected to last a few weeks. But Charlene Cooke of Chicago, Illinois, probably won't be following along.

Charlene Cooke: No. No. My girlfriend called me the other day and she asked me, "Oh, you know, they have the jury selection." I was like, "Okay. But no, I'm not gonna get wrapped up in that."

Lee: You've had your fill of it.

Cooke: I've had my fill. And that one was a little bit more than I could stomach, you know. Because how bold can you be?

Lee: For Charlene, who is 62 years old, the case and all of the media attention around it feels too close.

Archival Recording: Jason Van Dyke was only Chicago police officer of at least eight on the scene to fire his gun at 17-year-old Laquan McDonald.

Lee: It was a case that police might have gotten away with, but for the video. In 2014, footage from a police dashcam captured a white Chicago cop, Jason Van Dyke, getting out of his police SUV and firing 16 shots over the course of 15 seconds at 17-year-old McDonald. Police said he’d been swinging a knife at the officers, but the video clearly shows he was walking away. Laquan McDonald was rushed to the hospital, but ultimately, died. There are parallels here in the cases of Laquan McDonald and George Floyd, a Black boy and a Black man, each killed by white police officers. Both deaths were caught on video and circulated. Both caused national furor (BACKGROUND VOICES) and please for justice.

Lee: Jason Van Dyke was charged with first-degree murder. (BACKGROUND VOICE) Had you seen the video of Laquan McDonald being killed?

Cooke: I seen it when it happened, but I couldn't believe it. I was like, "Wow."

Lee: When Charlene first showed up for jury duty, she had no idea she'd be seated on a case that captivated the country.

Cooke: Well, when we first got there, nobody really knew what trial we were comin' in for. It had to be at least, I would say, 400 or 500 people there. And the process took all day.

Lee: What kind of questions were actually being asked?

Cooke: (LAUGH) Of course, your name, who your parents were, how many children you have, if you had any relatives in prison. Or did you have any people that work for the law enforcement?

Lee: You know, I've been talkin' to lawyers about this process. And they talked about, you know, weeding through a bunch of different prospective jurors. And the defense has one idea of who they're lookin' for; and the prosecution has a different idea. Could you tell the difference between, like, the defense and the prosecution, where they treat you guys Would they treat you guys any differently with the questions they were askin'?

Cooke: Well, I could tell that the questions that they were askin' as though they wanted to see what type of attitude I had.

Lee: She told me that something in her gut said the defense didn't want her there because she was Black.

Cooke: And I knew he asked me two or three times how old I was, and where did I work, and how long I had been on my job, as though he didn't believe the questions that I had answered. The way he was speaking, it was though he wanted to see if I would get a attitude with him. Because at one part, the judge told him, "I think you've asked that question enough. I need you to move on."

Lee: Charlene thought she'd go home that day and be done. The defense didn't seem to want her there anyway. Instead she was asked to come back the next week to serve on the Van Dyke trial. And she stood out pretty quickly. And you, as you look around, you at this is the jury. And you realize that you are the only Black juror. Like, how did that strike you?

Cooke: I couldn't believe it. I was like, "What's goin' on?" I felt like it was a setup to be truthful. I was like, "Okay, this happened to a young Black man, really a boy. He was a child, for this to happen, and you only would let one Black person?" I thought that was a setup right there. I thought it should have been more than one Black person. That's my opinion.

Lee: There is a lot of pressure being the one Black person in a jury room, or any room for that matter. The pressure of feeling like you represent all Black people.

Cooke: I was disappointed. (LAUGH) 'Cause I really didn't want to be on the jury. (LAUGH) No, I didn't. Unh-uh (NEGATIVE). For one, I didn't want no one's life in my hands, regardless to what I thought of him. I didn't really want to be involved with it.

Lee: As the trial began, Charlene was nervous.

Cooke: My stomach was in a ball of knots. First of all, because you walk in and you see all these people, the news cameras there. As you're comin' in you see everyone that's sittin' in the audience. The audience was full. Everybody's starin' at you. And even though the people in the TV land couldn't see who I was, the people in the audience knew who we all were. So I'm watchin' and I'm sittin' down tryin' to observe everything, tryin' to take notes to everything.

Lee: Well, so it's like there's this sense of anonymity like you're anonymous to the general public. But everybody in that room knew exactly who you were.

Cooke: Uh-huh (AFFIRM).

Lee: The other jurors were nervous at first too. Everyone was a bit awkward. And Charlene felt like the other jurors were all looking at her, worrying what the Black lady might make of this case.

Cooke: I think they thought by me bein' this Black lady that they was gonna have a problem out of me. I was comin' in militant. And I just had to tell 'em, "I'm old." I think I was the second oldest person there. "We're here to do a job. I'm not here. Don't look at my race. We're comin' in here to do this job. And we're all goin' home."

Lee: The trial lasted three weeks. Charlene said that sometimes it felt like she was in a time loop: same people, same meals, same four walls.

Cooke: Basically were in the same room all day, every day. (LAUGH) It was a room that had just a table, conference table, two washrooms. If you wanted to bring your lunch, you could. But if not, you had the same list that you could pick a different sandwich, (LAUGH) coffee or pop to go with your sandwich. This was every day for three weeks. And trust me, after three weeks of cold cuts, I haven't had another cold cut since.

Lee: What were some of the biggest challenges you faced while sitting on the jury? I mean, this obviously seems like an ordeal in so many ways, emotionally, physically. You're there all day. But what were some specific challenges that you faced on this trial?

Cooke: I had to not allow myself to think about: okay, here's another Black guy getting killed. And we have to prove that he didn't deserve this.

Lee: This is important. What Charlene is describing is trying to be a fair and impartial juror. It's an ideal we've all been taught. But she's doing this while thinking about how her grandson was the same age as McDonald. Again, you know, I wonder if there's a case of, you know, a white boy who did somethin', and the jury's all white. Would they ask the white jurors: now can you judge him? (LAUGH) Can you judge him fairly--

Cooke: Fairly.

Lee: --and impartially? Because he's white and you're white. Are they askin' anybody that? Or-- I think we probably know the answer to that.

Cooke: Right.

Lee: Why do you think it's so important that Black people are represented on juries?

Cooke: I feel it's important because then that way nothin' can be slid by. Because I had to remember I can't act the way they want me to act.

Lee: Charlene could use her perspective to help her analyze what was happening in the courtroom. At one point during the trial, one of the lawyers actually argued that Laquan McDonald wasn't a Boy Scout. And this wouldn't have happened to a kid who wasn't already in the system. For Charlene, these weren't just dog whistles. The message was loud and clear.

Cooke: I had to really swallow. Because I felt some of the stuff they said was so unnecessary. Just because you are Black, you don't automatically deserve to be killed. Or you don't automatically go the wrong way just because you're Black. No, all Black people are not brought up to be thugs. And just because you are Black, you doesn't deserve to be shot down. You deserve to be listened to and approached like you do everyone else.

Lee: Do you get the sense that you were, with your experience and having these convicts, able to kind of enlighten some of the other jurors in ways that they might not have fully understood, but you were able to, like, share your experience as a Black woman in this country?

Cooke: Well, we talked about certain things. Certain things I didn't. Because I didn't feel it was my job (LAUGH) to enlighten them on anything. Because I've learned this over my life: people are gonna accept what they want. When somethin' happened in the court that they didn't understand, we discussed it. And I gave them my opinion on it. Or I felt if somethin' was said wrong, I'd say it was wrong.

Lee: But Charlene says there was a lot of disagreement. And some jurors actually empathized with the officer.

Cooke: One lady I'll never forget. She said, "Oh, when we have someone's life in our hands." Hey, regardless to whose life we have in our hands, this young man has no life anymore. I don't care if he was the worst person in the world, his life was over. He had no time to get it right anymore. It was over. And I let 'em know, "I'm not bendin'. We're here to do a job. Let's get this job done. 'Cause I'm not gonna bend, I'm sorry."

Lee: The jury eventually found Jason Van Dyke guilty of second-degree murder. This was a big deal. It's rare for a police officer to be convicted at all, let alone for murder. What was it like to leave that courthouse for the last time and go home?

Cooke: It was relief for me. I was like, "Okay, I'm gonna have my life back now." And when I left, I had to go back to work. I went back to work the next day I think it was. (SIGH) I was dealin' with the public. I was out in the public. So I was nervous. I went into the store one day.

And a lady, she just walked up. She was like, "Oh, here's Juror Number 247." I'm like, "Whoa." (LAUGH) She didn't remember my name. But she remembered my jury number. I had one lady walked up to me in the store and really, literally, like to gave me a heart attack.

Because she walked up behind me, and was tryin' to hug me. And I didn't know what she was tryin' to do. So I almost pushed her back. It's like, "Come on, wait a minute." So she was like, "Oh, I just wanted you to know that I'm so proud of you." And she was a Caucasian lady. I said, "Okay, thank you. But you don't walk up on anyone. 'Cause I didn't know what you wantin' to stab me (LAUGH) in the back, punch me or what."

Lee: Charlene had reason to be scared. As much as people were proud of her, others were angry.

Cooke: And I also had a couple of people walk up to me and tell me, "How dare me?" So.

Lee: You had people literally come to your face and say, "How dare you?"

Cooke: I had a lady tell me--

Lee: Wow.

Cooke: --"How dare you?" You know, I told her. I said, "I did my job."

Lee: Do you think there is actually widespread bias in the jury selection process, given that you kind of experienced the process?

Cooke: Oh, yeah, it's definitely widespread. Because the questions they ask you: do you think you could be partial? Do you think that by you bein' Black and Laquan bein' Black, that you can give us a verdict, and it's not because you are Black? Of course. Like I told 'em, right is right; wrong is wrong.

Well, I learned really how the system thinks of us. They expect us to be a certain way. They expect us to think a certain way just because this is what they have in their mind. So I'm glad that I was on there. We needed a Black person on that jury. We still have a long ways to go. Because there times when Blacks weren't allowed on the jury at all. So we are fortunate now that we are able to come. But sure, they're not makin' it fair. If you have 12 jurors, why would one be Black?

Lee: In Chicago, of all places, to have one Black juror on any case does seem kind of wild. After the break, we'll get into how the makeup is actually by design. I sit down with a public defender to understand how our jury system is biased against Black jurors and what we should be lookin' for as the Derek Chauvin trial picks up steam in Minneapolis. Stick with us.

Lee: Charlene Cooke's story of being the lone Black juror on a case isn't especially rare. Most juries aren't representative. Our next guest is trying to change that. What's that on your shirt, man?

Will Snowden: It says: jury duty is my duty. Underneath it is 12 dots which are emblematic of a jury.

Lee: Will Snowden is the founder of the Juror Project, advocacy group to teach people why jury service matters and why it's especially important for Black people to be on juries. The project is based in New Orleans, Louisiana, where Will moved in 2012 to be a law clerk, and eventually a public defender. Today Will is watching the Derek Chauvin trial very closely.

Snowden: You know, the first that I was paying attention to is how they were going to be establishing a representative jury of Hennepin County. We all have a constitutional right to a jury of our peers. And so what that means to me is that we should have a fair cross-section of our communities in which we're going to trial. And so that includes people from the north side of Minneapolis just as much as it includes people from downtown and other areas of Hennepin County.

Lee: The right to a jury of our peers is guaranteed by the Sixth Amendment. The idea is that when you're judged by your peers, by a full representation of the community, that can help insure public trust and accountability. It's a powerful idea, but one that comes with some challenges.

Snowden: You know, I think what works about this system is that it's a democratic process where you can actually see the impact of your vote. What doesn't work about our system is the way in which we generate the people who are sitting in those seats.

Lee: Black defendants don't often get a jury of true peers. What they get is a jury of mostly white people, usually political moderates. And there's research that shows the racial makeup of a jury is directly linked to whether we might consider a trial fair. All white juries tend to spend less time deliberating, make more errors, and consider fewer perspectives, especially in cases where there are non-white defendants.

That's according to research from the Equal Justice Initiative, a non-profit focused on criminal justice reform. The solution is obvious: make sure juries are more diverse. But there are built-in barriers to doing that in this country. And the problem starts from the very beginning in how it's actually find potential jury members.

Snowden: So most jurisdictions will use voter registration and DMV records to generate the summons list. And that's the list that identifies people who should be mailed summonses to show up for jury duty. The reason why that's problematic, and the reason why it doesn't work, is when you use just, say, voter registration and DMV records, you're effectively excluding everybody who doesn't own a car and everybody who isn't registered to vote, but otherwise would be eligible to sit on a jury.

Lee: The second problem emerges during a process known as voir dire. Voir dire is French for "to speak the truth." And it's the stage of the legal process where the pool of potential jurors called during the summons stage starts to get whittled down through a series of questions from the judge and the lawyers in the case. Remember when Charlene told me she felt like lawyers for the defense were tryin' to get under her skin? That was during the voir dire stage. And it's where a lot can go wrong.

Snowden: The types of questions that we can see being asked during that process unfortunately sometimes are tailored to remove certain perspectives from that jury box. So for example, we've heard questions that prosecutors have asked. You know, how many of us have either personally had or know somebody who's had a bad experience with a police department?

And we'll see people raise their hand. And they'll say, "Yes, I've had a bad experience." They'll describe it. And then ultimately what happens is that person gets removed from the jury because of that bad experience they had with the police department. And when you do that, what you're saying is: your perspective and your experience does not matter for this particular trial.

Lee: That's, like, 99.8% of Black people. (LAUGH)

Snowden: Uh-huh (AFFIRM).

Lee: At least 99.8% of Black men I know.

Snowden: But then what you're doing is you're affirming people who have not had bad experiences or people who have trusting and loving relationships with the police department, and you're saying, "Oh, yeah. Yeah, you're fine. You can sit on our jury." And what that does is it creates biases.

Lee: What Will is getting at is that this notion of fair and impartial is a bit of a fallacy. Sure, we can all be fair and judge the facts in front of us, much like Charlene Cooke did in Chicago. But no one is truly impartial. We all have our filters. Society has just decided that certain filters, those that align with whiteness, are okay.

Snowden: We actually want somebody on the jury who trusts, loves, and believes our law enforcement just as much as we want somebody on the jury who does not love, who does not believe, and who does not trust the police department. Because at the end of the case, if those two individuals, on kind of opposite ends of the ideological spectrum, can agree upon a verdict, then we can then have faith in the process. That we know that biases simply haven't carried out the verdict of that particular day.

Lee: Now let's get into the strike process. This is a big part of voir dire. You might know it from shows like Law & Order for example. After questioning, lawyers from both side look at potential jurors and decide who they want to remove. Will says in practice though the process is a little more complicated.

Things are about to get a little bit jargony here. But bear with me. There are two kinds of strikes: legal cause and preemptory. A legal cause strike is issued when a jury demonstrates that they can't be fair and impartial in a case. A lawyer gets an unlimited number of these.

But they have to provide a reason for striking. So they might say, "This case is about a robbery. And Junior Number Five said they were recently robbed at gunpoint. Motion to strike for cause." But it's not always possible to discover bias when the jury is screened. Sometimes it's revealed later.

Then there's the preemptory strike. Both sides get a limited number of these. With the preemptory strike, a lawyer doesn't have to provide a reason for getting rid of any juror. They simply write the names down, pass it to a judge, and those jurors are asked to leave.

Snowden: And I was a defense attorney here in New Orleans for five years, tried many cases, supervised many trials. And so I've seen the ways in which preemptory strikes are utilized strategically. And when you kind of get the feeling that opposing council is striking people because of their race or because of their gender, there's something that you can do about it. And it's called a Batson challenge.

Lee: That term, a Batson challenge, comes from the 1986 Supreme Court case, Batson v. Kentucky, wheelchair ruled that striking someone from a jury based on race or gender is illegal. But in practice, it happens all the time.

Snowden: The problem with Batson and Justice Thurgood Marshall, the first Black Supreme Court justice, stated in his opinion: as long as we have preemptory strikes, we're gonna have discrimination. Because anybody can articulate a race-neutral reason to kind of mask and disguise that it's gonna show intent. So we've seen explanations such as: the person had a beard, which I take offense to as a bearded person. (LAUGH)

Lee: I do too. I happen to think that's (LAUGH) very offensive (LAUGH) personally.

Snowden: Or the person has glasses. Or the person failed to make eye contact with me when I was asking them questions. And so you might specifically want to remove all the women from the jury. But you know you can't say, "I'm removing this person because they're a woman." So you're gonna make something up.

Lee: Who to strike, and why to strike them. All of these factors will be at play over the next few weeks as lawyers in Minneapolis try to reach an agreement on the 12 Americans who will judge Derek Chauvin's guilt or innocence. And there's one other step that we're seeing right now in the trial of Derek Chauvin.

Prospective jurors are being asked to fill out a preliminary questionnaire put together by the lawyers involved in the case. And this one is long, 16 pages long. I wanted to run some of these questions by Will. How favorable or unfavorable are you about Black Lives Matter?

And another was: how favorable or unfavorable are you about Blue Lives Matter? Now, we know especially when it comes to Blue Lives Matter and Black Lives Matter, they exist in these kind of polar ideas, right. Are those valid questions to use to be able to weed out potential jurors?

Snowden: So from a personal perspective, I think those questions have problems. I think from a legal perspective, there have been provided justifications of asking that question to gain more insight into how potential jurors might receive the evidence and information of that case.

I believe in that same questionnaire, they asked: you know, did you attend a demonstration? And did you hold a sign? If so, what did your sign say? You know, I think about the equivalent question that I've asked is: do you have a bumper sticker on your car? And if you have a bumper sticker, what does it say? Right.

And so attorneys are gonna be using everything they can to try to get inside the minds and perspectives of these jurors. But I think that they certainly can fly in the face of what biases that are being removed or added to a jury, which could be problematic.

Lee: That brings us back to the big question.

Snowden: Can we actually produce a jury of your peers that are fair and impartial? Now, I would say you can't because we all walk into that courtroom with our experiences, with intersectional identities, with perspectives, that we just don't leave at the door, right.

We don't want somebody to leave their common sense at the door when they walk into the courtroom. We don't want somebody to leave their 36 years of lived experiences at the door. There's value in that.

Lee: So Will wants lawyers to welcome diversity in their jury pools. It's a pretty big hurdle to change the system we have. But Will is seeing some movement.

Snowden: We're seeing a wave around this country of people who hold themselves out to be progressive prosecutors. And so in the context of juries, what that means to me is that progressive prosecutors are going to want to have the most representative juries in which they are presenting their trials so they can have faith in the conviction that they're securing.

Lee: And where he's spending a lot of his energy is in trying to tackle the problem through the public. Will says one of the most important parts of fixing the system is to not miss the opportunity to participate.

Snowden: I think people are familiar with the pitfalls of our criminal legal system. And I want to meet that appetite and meet that interest with presenting this idea that you actually have a voice in improving the fairness of our criminal legal system.

And that when you get that jury summons, if there's things that you like about the criminal legal system, you can make sure that that gets carried out. The things that you don't like about the criminal legal system, you can voice about that as well. But there's so much power in that deliberation room.

Lee: That power Will is talkin' about is on display this week in Minneapolis in the trial of Derek Chauvin.

Snowden: I think individual jurors are gonna know that they have the eyes of the country looking at their decision. That there is this feeling that America is a tipping point. We can either lean forward and embrace ideas of fairness and equity and racial justice. Or we can fall back onto the pillars of white supremacy that have been ingrained in our criminal legal system for decades. And the jurors are going to be aware of that.

Lee: At the time we're taping this, prosecutors and defense attorneys have chosen five jurors to seat and dismissed more than two dozen others. Among those removed was a 19-year-old Black man who told the Court he was suspicious of law enforcement and wanted nothing to do with the, quote, "divisive case."

Jury selection will continue for the next couple weeks. Will is hoping that in the end the jury in the Chauvin trial is diverse, racially, ideologically, in all ways. Will wants people on that jury and in every deliberation room across the country to debate and disagree and push each other to think in new ways. The stakes are too high for anything else. And while Charlene Cooke isn't sure just how much she'll be watching day-to-day, she did have some words of wisdom. What advice do you have for the jury as a whole?

Cooke: To go in, listen to the facts, keep notes, try to write down as much as possible. 'Cause you're not gonna remember everything. Don't allow them to make up your mind. If you feel they're wrong, stick with it regardless to who is not on your side. Go with your heart. Don't be persuaded by no one.

Lee: Jury selection in the Derek Chauvin trial will likely last about three weeks, and it's estimated the trial could run through mid April. We'll be following along here on Into America. If you have questions or perspectives that you'd like us to tackle relating to this story or any other, please reach out.

You can tweet me @trymainelee. That's @trymainelee, my full name. Or write to us at intoamerica@nbcuni.com. that was intoamerica@nbc and the letters U-N-I.com. Into America is produced by Isabel Angell, Allison Bailey, Aaron Dalton, Max Jacobs, Barbara Raab, Claire Tighe, Aisha Turner, and Preeti Varathan. Original music by Hannis Brown. Our executive producer is Ellen Frankman. I'm Trymaine Lee. We'll be back next Thursday.