- The Kyle Rittenhouse and Ahmaud Arbery cases have become two of the most high-profile murder trials in America.
- Jury selection in both cases ended this week, with just one person of color making it onto each respective jury.
- Legal experts told Insider how this happened, and why the jury selection system is imperfect.
Jury selection in two of the most high-profile murder trials in the country took place this week, both resulting in mostly-white juries.
White teenager Kyle Rittenhouse faces homicide charges after killing two people and injuring a third during unrest tied to the shooting of a Black man in Kenosha, Wisconsin, last summer. Meanwhile, three white men in Georgia are facing murder charges in connection with the shooting of Ahmaud Arbery, a Black man whose family says he was out for a jog.
Jury selection for the Arbery case was a nearly two-and-a-half-week-long process, while the Rittenhouse jury was seated in just a day. But they both ended with the same result: a mostly white jury with the exception of a sole person of color.
Juries are selected through a process called voir dire, whereby potential jurors are questioned and then eliminated through the use of “for cause” strikes and “peremptory challenges.” A potential juror is eliminated for cause by expressing that they are unable to be fair and impartial, while the prosecution and defense use peremptory challenges to eliminate potential jurors without stating a cause.
Insider spoke to Vanderbilt law professor Chris Slobogin and Wisconsin-based defense attorney Julius Kim, who explained how jury selection can result in minorities largely dismissed.
How lawyers can shape a jury
In voir dire, the defense and prosecution each get a limited amount of peremptory strikes, and that number varies from state to state. Slobogin said the number of peremptory challenges each side is allowed can also be adjusted by the judge on a case-by-case basis, as happened in the Arbery case. According to the Thomasville Times-Enterprise, the judge allowed the defense 24 challenges and the prosecution 12 challenges.
The defense having twice as many peremptory challenges as the prosecution gave them more power to shape the jury, Slobogin said.
A pool of 48 potential jurors initially were considered for the Arbery case, 36 of which were white and 12 of which were Black. That reflected the racial makeup of Glynn County, where the trial is taking place, and where about a quarter of the population is Black or African American. All but one of those jurors was eliminated from the final jury.
A Supreme Court decision, Batson v. Kentucky, attempts to protect the jury process from racial discrimination by allowing peremptory challenges to be called into question, if the other side believes that a potential juror was dismissed because of their race. Slobogin explained that the side being challenged needs to provide explanations for their dismissals that are “race neutral” and “genuine,” but the explanations don’t need to be as strong as those needed for a “for cause” strike.
In the Arbery case, the judge accepted the defense’s explanations for why they struck 11 Black jurors, and the case was allowed to proceed.
Slobogin said courts could further protect against racial discrimination in voir dire either by requiring both sides to meet the “for cause” standard if they are checked on the use of a peremptory strike, or doing away with peremptory strikes altogether. The latter is something that a few Supreme Court justices — including Stephen Breyer and Thurgood Marshall — have suggested.
An “imperfect’ system”
The fact local media reported that just one person of color made it onto the Rittenhouse jury was less surprising to Kim, who works in Wisconsin and has argued cases in Kenosha County, where 87% of residents are white and 7% are Black.
Still, one reporter noted that of the approximately 70 jurors in the pool on Monday, there were only three Black women.
Beyond voir dire, Kim said there could be an issue with the way people are called into jury duty in Kenosha County that distorts the true racial makeup of the community. DMV records often are used to find people for jury duty, and Kim said that could mean some races that are more likely to have a driver’s license could be overrepresented.
“The question is, is the general process that these counties are using to summon people, is that flawed in and of itself?” Kim said. “That may be something that needs to be taken a look at now because times have changed and sometimes with government, processes are just left in place and it’s on autopilot.”
Kim also drew attention to one of the jurors who was dismissed from the Rittenhouse trial on Thursday, after making a joke about Jacob Blake, the Black man whose fatal shooting by police sparked the unrest that drew Rittenhouse to Kenosha, armed with a semi-automatic rifle.
“Something like that happening shows that the jury selection process is imperfect, but in the end it worked,” Kim said of the fact that the joke was reported to the judge. “Things like that will show itself and will make its way to the top.”
Both Kim and Slobogin said it still doesn’t look good that the juries in the Rittenhouse and Arbery cases ended up being overwhelmingly white, with Kim saying the makeup of the Arbery jury makes him more “nervous.”
“The image is jarring and doesn’t look good that juries in both of these cases are predominantly white,” Slobogin said. “One of the reasons for having a jury is to foster legitimacy of the system and I think for many people the faces on these juries will undermine that legitimacy.”