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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Appellate Work: Getting the Law Right

Recently, I authored a post on this same blog discussing the first of two frequent observations I’ve made since joining the Milwaukee County District Attorney’s Office as a prosecutor and rookie lawyer in February of last year. There, I expressed my belief that we must do more to educate the nonlegal public about what it is we do as lawyers. Here, however, I wish to share what is perhaps as much a personal conclusion as it is an observation—appellate work is where it’s at.

In the last six or so months, I’ve been tasked on several occasions to represent the State before the Wisconsin Court of Appeals. These experiences have been enjoyable for several reasons—not the least of which is that I do enjoy writing about the law.

More generally, I have come to prefer legal argument over arguing facts. For these reasons, I expect that my career in the law will naturally gravitate toward appellate work. This is not to say I that I don’t enjoy trying cases to juries, but rather it is acknowledgment of one introspective observation.

As I’ve arrived at this conclusion, I’ve also realized that I’m most interested in getting the law right—regardless of whether doing so helps or hurts any particular position I’ve taken in a case. That said, what I find most appealing about appellate work is that I’ve come to believe that appellate courts generally prioritize getting it right above all else.

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The Legal Process Sea-Change

Illustration of Ariel's Song from The TempestThere’s an old joke about scientific progress: that science advances one funeral at a time. The same might be said about judicial philosophies. Some judges might be persuaded to change their views over time, but it is just as likely, if not more, that change occurs through a changing of the guard. So it was with the Second Circuit in the 1960s. The Second Circuit had had a remarkably stable bench during the 1940s, when Learned Hand was the chief judge. Four of them, Hand, Hand’s cousin Augustus, Harrie Chase, and Thomas Swan served together in active or senior status for twenty-five years, from 1929 to 1954. The remaining two, Charles Clark and Jerome Frank, were with them from 1940 on.

But within six years in the 1950s, the active bench of the Second Circuit experienced nearly a complete turnover, except for Clark. The new judges, who included Henry Friendly, J. Edward Lumbard, Irving Kaufman, and Thurgood Marshall, obviously had different educational and professional experiences from those of the judges they replaced. What truly distinguished the new group, however, is that they had a very different approach to judicial decisionmaking, and in particular the proper role of discretion. No longer were the Second Circuit judges comfortable with leaving important substantive decisions on the merits of a claim to case-by-case equitable balancing. In the 1960s, the Second Circuit began crafting multi-part tests to replace the vague standards that had come before, to force lower courts and later panels to elaborate the reasons for their decisions. Whether they consciously subscribed to it or not, the new judges were heavily influenced by Legal Process ideology. 

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