Racial Discrimination in Wisconsin Jury Pool Practices

A courtroom is filled with women dressed in long black dresses and wearing hats.
Crowd of women register for jury duty after gaining the right to vote, Portland, Oregon, 1912.

“It requires little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that state laws might be enacted or enforced to perpetuate the distinctions that had before existed.” – Strauder v. West Virginia, 100 U.S. 303, 306 (1879)

As ominously foreshadowed by the Supreme Court in 1879, current state and federal laws and practices continuously present disadvantages to people of color. Removed from enslavement and the oppressive nature of the Jim Crow Era, today many of the participants in our justice system and in politics are blind to discrepancies within this nation’s criminal justice system and erroneously believe that the black defendant enjoys the same rights as the white defendant.  The black defendant is seldom given a jury that racially represents him or her, and this lack of representation is a product of case precedent, judicial reasoning, and discriminatory practices. In Wisconsin, these discriminatory practices take the form of both state and federal jury pooling procedures. As such, the purpose of this blog post is to draw attention to the disproportionate jury pooling practices in Wisconsin circuit courts as well as federal district courts in our state, and to provide a forum for debate on this important issue.

Federal Jury Pooling in Wisconsin and the Depleted African American Voting Population

The right to a jury is so critical to the makeup of our system of justice that the Constitution mentions juries in four different sections. However, while individuals have a constitutional right to a jury, the pooling and selection of such juries is not always constitutionally executed. Both the Eastern and Western District Courts of Wisconsin have jury pooling practices that raise constitutional concerns due to the disproportional impact that those practices have on black criminal defendants.

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Supreme Court Dodges Long-Running Dispute Over Defendant’s Right to Psychiatric Expert

A photo of the Supreme CourtThree decades ago, in Ake v. Oklahoma, the Supreme Court held that indigent criminal defendants have a constitutional right of access to a psychiatric expert in some cases. More specifically, the Court stated, “[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U.S. 68, 83 (1985).

This seemingly straightforward holding has spawned a number of long-running disputes in the lower courts. Among the more important lingering questions is this: May a state satisfy its obligation under Ake by supplying the defendant with access to a neutral expert who is equally available to both sides, or must the state engage an expert who will truly serve as a member of the defense team? Of course, a wealthy defendant would almost always be well-advised to hire his own expert, rather than merely relying on a neutral, but Ake does not necessarily guarantee that poor defendants will have all of the advantages of their rich counterparts.

With the lower courts split on this question, the Supreme Court finally seemed poised to provide a definitive answer this term in McWilliams v. DunnHowever, when the Court issued its McWilliams decision earlier this week, the justices actually ruled in the defendant’s favor on quite narrow, case-specific grounds, leaving the big question about the acceptability of a neutral expert unanswered.

Whenever the Court gets around to answering the question — and, given the way that matters were resolved this week, McWilliams itself could well provide the vehicle on a return trip to the Court — the justices will confront a difficult issue that touches more generally on the role of experts in an adversarial system of justice, and even on the very nature of scientific knowledge.

Our ideal for science is objective knowledge. We hope that scientists will develop analytical methods that will invariably yield the same conclusion as to the same subject, regardless of who is doing the analysis.

If tests for mental illness are “scientific” in this sense, then there seems little unfairness in limiting the defendant to a neutral psychiatrist. The only way in which having an expert on the defense team might change the outcome would be if the defendant’s “hired gun” were dishonest or incompetent — and there surely cannot be a constitutional right to mislead the jury with bad science.

Thus, the claim that the defendant should have his own expert seems implicitly grounded in a belief — accurate, I should think — that psychiatric diagnosis does not always fit that ideal of wholly objective and indisputable conclusions. In the American legal tradition, of course, we look to adversarial process to determine the truth when there are two conflicting, but both still plausible, versions of reality available. Thus, if reasonable psychiatrists could differ over a defendant’s diagnosis, it seems natural to fall back on adversarial process and give each side an opportunity to make the best case possible for its version of reality, including with its own expert witness. We are accustomed to think that the truth will emerge from such an adversarial clash.

And, yet, there is something disquieting about this picture. When we ask a jury to choose between two competing stories about what a defendant did, we count on the jury to use its common sense and life experience to decide which version of reality is more plausible. But, when the question instead relates to what was going on in the defendant’s head, it is not so clear that common sense and life experience are up to the challenge. After all, the essence of the defendant’s claim is that his brain was not working in a way that is familiar to most lay people in their day-to-day lives. The very reason we bring experts to bear to try to deal with the issue makes lay jurors seem unqualified to pick between the two different versions of reality being presented.

There does seem a dilemma here. If we use only a single, nominally neutral expert, then the jury may be left with a sense in some cases that the science is more certain and one-sided than it really is. On the other hand, if we arm each side with its own expert, then we implicitly ask the jury to perform a task for which it is ill-equipped — adjudicating the scientific quality of competing expert opinions. There may be ways of alleviating the concerns — e.g., through use of a neutral panel of experts — but such approaches tend to raise cost and other practical difficulties.

Perhaps the conundrum helps to explain why the Court has not seemed anxious to resolve the big question that was posed by McWilliams.

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Saving by Investing in Civil Legal Aid

Kara is a single parent with two children. She works full-time, but still makes less than $1,500 each month. Kara’s boyfriend Jay, the father of one of Kara’s two children, lives with her, but does not always contribute to the household. In addition, he’s physically abusive to the family cat and to Kara. After the most recent incident where Jay pushed Kara into the wall and grabbed her arm so hard he left a bruise, Kara wants him to leave. And she wants a restraining order. But knowing who to call and where to go—and, most of all, how to pay for services she’ll need—is overwhelming her. If Kara lives in a state that invests in civil legal aid, she’ll have no problem finding resources and will be able to have a lawyer represent her—at little to no cost to her—at any court hearing she needs to get a domestic violence injunction.

While Kara’s story is merely illustrative—though many people experience circumstances like Kara’s every day—its larger point is important. Civil legal aid is a combination of services and resources that helps Americans of all backgrounds—including those who face the toughest legal challenges: children, veterans, seniors, ill or disabled people, and victims of domestic violence—to effectively navigate the justice system. Civil legal aid helps ensure fairness for all in the justice system, regardless of one’s ability to pay. It provides access to legal help for people to protect their livelihoods, their health, and their families. Civil legal aid makes it easier to access information through court forms; legal assistance or representation; and legal self-help centers. Civil legal aid also helps streamline the court system and cuts down on court and other public costs. When we say the Pledge of Allegiance, we close with “justice for all.” We need civil legal aid to ensure that the very principle our founders envisioned remains alive: justice for all, not the few who can afford it.

Our state has had a rocky history of funding civil legal aid programs. While the state did begin such funding, of late, that funding has since dropped precipitously. In 2007, for the first time in Wisconsin history, the legislature included nearly $2 million in the state budget for civil legal aid. In 2009, the funding was increased to just over $2.5 million. But in 2011, the funding was eliminated completely from the state budget. From 2012-2015, Wisconsin was one of just three states that did not provide any funding for civil legal aid for low income people. (The other two are Florida and Idaho.)

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