MINNEAPOLIS — In his effort to find an impartial jury, the lead defense attorney in the murder trial of former Minneapolis police Derek Chauvin has spent the past two weeks questioning potential jurors about their views on racism, discrimination, policing of communities of color and Black Lives Matter.
But on Thursday, Eric Nelson told a prospective juror that the trial is "not about race."
The response to George Floyd's death suggests many people believe otherwise. For weeks, thousands of people in all 50 states protested against systemic racism and police brutality, spurred by the sight of a Black man dying under the knee of a white police officer after centuries of white supremacist violence against Black people.
"We’re at aninteresting point in society where people are telling us what is and what is not about race. I’m not sure that the defense attorney in this case gets to make that decision," said Samuel R. Sommers, a social psychology professor at Tufts University who studies the impact of race on the legal system. "It's a tragedy, but it's become a racially charged instance as well because of what else is going on our society."
Chauvin is not charged with crimes related to racial bias. But experts say the issue of race is at play not only in Floyd's death but in the courtroom during jury selection. And it will likely have an impact on deliberations and the verdict.
"Nothing magical happens to individuals who show up for jury duty that makes them somehow immune to racial biases," Sommers said.
Jurors who believe race affects the legal system are 'absolutely right'
Nelson's comment bears similarities to previous law enforcement denials that systemic racism is a factor in recent high-profile police killings of Black people.
In October, Louisville Police Sgt. Jonathan Mattingly, one of the officers who fired weapons in a failed drug raid that took the life of Breonna Taylor, a 26-year-old Black medical worker in Kentucky, said the incident was “not a race thing like people try to make it to be.”
When asked why a 17-year-old white teenager accused of killing two protesters and injuring a third in Kenosha, Wisconsin, was arrested but Jacob Blake, a 29-year-old Black man, was shot several times in the back, former Attorney General William Barr told CNN in September he doesn't believe there are "two justice systems."
"I think the narrative that the police are on some, you know, epidemic of shooting unarmed Black men is simply a false narrative and also the narrative that that's based on race," Barr told CNN. "The fact of the matter is very rare for an unarmed African American to be shot by a white police officer."
And on Tuesday, after eight people, including six women of Asian descent, were killed in three shootings at Atlanta-area spas before police arrested and charged a white man, officials investigating the case said it was too soon to call the incident a hate crime. "We are just not there as of yet," Atlanta Police Chief Rodney Bryant said in a news conference.
Many people of color and others disagreed, viewing it as a crescendo of a year-long wave of racist violence – particularly after a recent spike in anti-Asian violence that began during the COVID-19 pandemic and which many believe was fomented by the rhetoric of the Donald Trump administration.
Opinion: If Derek Chauvin is acquitted, the three other cases could collapse
Multiple studies and the lived experience of many Black people, in particular, suggest systemic racism is a factor in police killings.
An analysis of data from the Washington Post published in 2019 found that while Black Americans comprise just 13% of the U.S. population, they account for 36% of unarmed police shooting victims. Black Americans are 3.23 times more likely than white Americans to be killed by police, according to a study of nearly 5,500 police-related deaths between 2013 and 2017 published by Harvard researchers in June 2020.
"The data are very clear. Any prospective juror who says, 'Yes, I believe race has the potential to influence how individuals are treated,' is absolutely right," said Sommers. "If that’s going to be grounds for removing someone from the jury, that's a problem."
The jury's racial makeup will likely will be more varied than Minnesota
Thirteen jurors, five men and eight women, have been selected so far for Chauvin's trial. Seven of the jurors identify as white, two as multiracial and four as Black, according to the court. The court plans to seat at least one more juror.
The racial makeup of the jury likely will be more varied than the Minnesota as a whole, Hennepin County, or Minneapolis. According to mid-2019 U.S. Census data, Hennepin County was 74.2% white, Minneapolis was 63.6% white and Minnesota was 83.8% white.
Months ago, the court sent a 13-page questionnaire to people in the jury pool asking their opinions on various subjects, including: whether police officers are more likely to use force against people of color, whether people of color receive equal treatment in the criminal justice system, whether police in their community make them feel safe, and how they feel about the Black Lives Matter and Blue Lives Matter movements.
Attorneys for the defense and prosecution have prodded potential jurors to expand on their answers and explain their reasoning. That has spurred some lengthy conversations about their experiences with police and discrimination.
On Thursday afternoon, one man said he didn’t believe Black and white people are treated equally in the criminal justice system. Nelson asked if the man believed an incident in which police stop a person of color is more likely to end "tragically." The man said yes.
He also said he would not believe a police officer's testimony. The judge excused him from the jury.
Another juror, the executive director of a youth organization, wrote in his questionnaire that he “somewhat disagreed” police treat Black people and white people equally and that he “strongly agreed” media reports on police brutality against racial minorities are only the tip of the iceberg.
He said he thought he could still serve as an impartial juror. The defense used a peremptory challenge against him.
If attorneys want to eliminate a juror, the judge must approve their reason, or lawyers can use what’s known as a “peremptory challenge” to cut someone without providing a reason.
A veteran who appeared to be Black told the court he experiences racism on a daily basis. On his questionnaire, he “strongly agreed” Black people and white people aren’t equally treated by the criminal justice system and “strongly agreed” Minneapolis Police Department is more likely to use force with Black people.
He told the court the fairness of the criminal justice system “depends on your colors.”
“If you’re Black ... we get the things where you have to go to jail,” he said.
He said he could set aside his opinions to serve on the jury. The defense used a peremptory strike against him.
Andrew Gordon, deputy director for community legal services at the Legal Rights Center in Minnesota, said the experiences that juror described are inextricably connected to him being a Black man. "To strike him for those reasons is tantamount to striking him because he is Black," he said.
"You are eliminating opportunities to have individuals on that jury who have an appreciation of race and law enforcement interactions with race that could help inform truth-seeking," Gordon said.
Jurors who react strongly to George Floyd video are 'systematically struck'
Most, if not all, of the potential jurors who told the court they had a strong, emotional reaction to seeing the video of Floyd's death were not seated on the jury, and most were dismissed by the judge because they said they couldn't be impartial or because it would cause them trauma. Most people seated on the jury said they had seen at least portions of a video of the incident but could remain impartial.
One juror who appeared to be a young Black woman, a single mother, told the court she “cried hearing him call for his mother during his last moments of life.”
“I can’t unsee the video, so I’m not able to set that part aside,” she said. “It’s still going to be traumatizing to me.”
She said she could not remain impartial, and the judge dismissed her.
Another woman, who appeared to be a person of color, said she had a strong emotional response to the video of Floyd's death and struggled to speak in the courtroom Friday morning. She said the incident was "so close to home."
"I think it’s too much," she said. She said she could not remain impartial, and the judge dismissed her.
The video of Floyd's death is upsetting for almost everyone who watches, but it is acutely traumatic for people of color – Black people in particular – because of the cumulative nature of trauma resulting from racism, said Monnica Williams, a clinical psychologist and professor at the University of Ottawa in Canada, who studies African American mental health.
"You already have a layer of stress built into your genetic make up," she said. "The more of these sorts of things that we’re exposed to the more likely a person is to have a traumatic reaction or full blown PTSD."
Gordon said individuals who had a strong reaction to Floyd's death are among those being "systematically struck." This perpetuates the idea that jurors who identify with the fact that Floyd was killed by a white police officer because of their own racial identity can't determine truth.
"Our common sense tells us we are able as human beings to decipher truth even in the presence of bias," he said. "That legal fiction reinforces a lot of the stereotypes, reinforces a lot of the racial animus, reinforces a lot of the indifference that you see built into the legal system."
At least one juror who had a strong emotional reaction to the video, however, was seated on the jury. A white woman in her 50s who works in health care told the court she couldn’t watch the video in its entirety because it was disturbing.
“I think they could have handled it differently,” she wrote on the questionnaire.
The woman told the judge she could set her previous opinions aside to serve as an impartial juror, and she was seated on the jury.
'Do you want people on your jury that don’t think Black lives matter?'
In questioning, lawyers for the defense and prosecution often asked potential jurors to offer their thoughts on Black Lives Matter as an organization, the greater movement and the notion that Black lives matter, generally.
One potential juror, a former musician who identifies as Hispanic, told the court he has a favorable view of the Black Lives Matter movement because it “continues on the tradition of the civil rights movement.”
The man said he thought he could still be impartial, but the defense used a peremptory challenge against him. The state followed with a Batson challenge, which claims a potential juror has been eliminated on the basis of sex, race, ethnicity or religion. The judge denied the challenge, saying there was a non-race-based rational for striking the juror,including the fact that his wife attended a protest in the wake of Floyd's death.
Experts said it's fairly easy to come up with a race-neutral answer to a Batson challenge, even if the strike is motivated in part by race.
"That’s pretty hard to enforce," Sommers said. "It's a problem the legal system has wrestled with for very long time and continues to wrestle with."
Another juror, a white woman in her 50s who works at a nonprofit and has interacted with the Minnesota attorney general, wrote on the questionnaire that she is “somewhat favorable” of Black Lives Matter.
“Excessive force against Blacks must stop, but not everyone working in the system is bad,” she told the court. “I think there’s inherent bias in the system.”
She was seated on the jury.
One juror, a Black woman in her 60s who used to work in marketing and has grandchildren, said she was not very familiar with Black Lives Matter as an organization but that she supports the idea that Black lives matter.
“I am Black and my life matters,” she said. She was also seated on the jury.
Attorneys for both sides and the judge asked all potential jurors if they can put their opinions aside and impartially judge the case based solely on the evidence presented in court. Sommers said the key question becomes whether the judge believes them and why.
"When is it that the judge is willing to take their statement at face value and when is the judge not willing?" asked Sommers.
Contributing: Kevin McCoy, USA TODAY; The Associated Press
Follow N'dea Yancey-Bragg on Twitter: @NdeaYanceyBragg
