What If Jurors Become Political Activists?

THE O.J. SIMPSON verdict has focused attention on the issue of race and justice in the United States. Simpson jurors have said they acquitted Simpson for lack of reliable evidence, but jurors in some minority communities may be using the principle of "jury nullification" to reach their verdicts.

The evidence against Davon Neverdon seemed overwhelming.

Four eyewitnesses testified that they saw him kill a man in a robbery attempt. Two others said he told them he committed the crime. Even Neverdon was expecting to be convicted: He had offered to plead guilty in exchange for a 40-year sentence, a deal the prosecutor had rejected at the request of the victim's family.

But that wasn't how the Baltimore jury, which included 11 African-Americans, saw it. After 11 hours of deliberation, they acquitted the defendant, who is black. A note from the jury room before the July 28 verdict suggested an explanation for the contrarian result: "Race," the lone Asian-American juror informed the judge, "may be playing some part" in the jury's decision-making.

Commentators have warned during the yearlong ordeal of the O.J. Simpson case - which ended in a not-guilty verdict last week -that a juror's race doesn't dictate his or her verdict, and that evidence matters more than skin color.

But, increasingly, jury watchers are concluding that, as in the Neverdon case, race plays a far more significant role in jury verdicts than many people involved in the justice system prefer to acknowledge. And rather than condemn this influence, some legal scholars argue that it fits neatly into a tradition of political activism by U.S. juries.

The case of Darryl Smith in 1990 is a less celebrated, but perhaps more telling, example of how race can affect a criminal trial. After an all-black jury in Washington acquitted Smith of murder in March 1990, a letter from an anonymous juror arrived at the superior court there. The letter said that while most jurors in the case believed Smith was guilty, the majority bowed to holdouts who "didn't want to send anymore Young Black Men to Jail."

With as many as half of young black men under the supervision of the criminal-justice system in some cities, "African-American jurors are doing a cost-benefit analysis," says Paul Butler, a black criminal-law professor at George Washington University. Many black jurors have determined that "defendants are better off out of jail, even though they're clearly guilty."

The phenomenon of race-based verdicts isn't limited to blacks, of course. In past years, all-white juries, particularly in the South, nearly always convicted blacks accused of crimes against whites, regardless of the evidence - while whites who raped or lynched blacks went free. In death-penalty cases, white jurors frequently refuse to send whites to death row for murdering blacks. When Los Angeles Police officers charged in the videotaped beating of Rodney King were acquitted in Simi Valley, Calif., in 1992, many observers attributed the verdict to the fact that 10 of the jurors were white and none were black.

Emerging phenomenon

But the willingness of many blacks, in particular, to side with African-American defendants against a mostly white-dominated justice system is a relatively new phenomenon with specific roots and ramifications, according to researchers who have analyzed recent jury verdicts.

At the simplest level, they say, minority jurors are merely drawing on their own life experiences, as jurors are expected to do, in evaluating evidence. Based on such experiences, they are quicker than whites to suspect racism on the part of police and prosecutors and thus more likely than whites to distrust the evidence they present. Indeed, a recent USA Today/CNN/Gallup Poll found that 66 percent of blacks believe the criminal-justice system is racist, compared with 37 percent of whites. This disparity inevitably affects deliberations.

But some black jurors are quietly taking a further, much more significant step: They are choosing to disregard the evidence, however powerful, because they seek to protest racial injustice and to refrain from adding to the already large number of blacks behind bars.

High acquittal rates

Most black jurors "understand how fine the line is between doing well and being on trial," says Thomas I. Atkins, a defense lawyer who is former general counsel of the National Association for the Advancement of Colored People. For many blacks, he says, "it's not enough to merely conclude that the right person is on trial and that the evidence is sufficient. You also have to prove that the right thing to come out of this trial is a conviction."

The race factor seems particularly evident in such urban environments as the New York City borough of the Bronx, where juries are more than 80 percent black and Hispanic. There, black defendants are acquitted in felony cases 47.6 percent of the time - nearly three times the national acquittal rate of 17 percent for all races. Hispanics are acquitted 37.6 percent of the time. This is so even though the majority of crime victims in the Bronx are black or Hispanic.

Although other jurisdictions generally don't break down conviction rates by race, overall figures for heavily black urban areas suggest that the Bronx phenomenon extends elsewhere. In Washington, D.C., where more than 95 percent of defendants and 70 percent of jurors are black, 28.7 percent of all felony trials ended in acquittals last year, significantly above the national average. In Wayne County, Mich., which includes mostly black Detroit, 30 percent of felony defendants were acquitted in 1993, the last year for which statistics were available.

Jury watchers point to a number of high-profile cases in recent years in which urban juries acquitted black defendants, despite what appeared to many observers to be strong evidence for conviction. These include the 1990 case of Washington Mayor Marion Barry, who was acquitted on all but one of 14 counts against him stemming from a sting operation in which the FBI and police videotaped him smoking crack cocaine; the string of acquittals of defendants charged with beating Reginald Denny during the Los Angeles riots in 1992, and the November 1988 Bronx acquittal of Larry Davis on charges of attempting to murder nine police officers.

After the verdict, Davis' lawyer, the late William Kunstler, acknowledged that there was "no question" that race influenced the jurors. But he said this had led to a just, rather than an unjust, verdict.

Some black lawyers and scholars argue that any defiance of what blacks perceive as a racist system falls within the tradition of so-called jury nullification - the rejection of the law in favor of the jurors' own views of justice. They note that this controversial power, which the U.S. Supreme Court explicitly affirmed 100 years ago, has played an important role at key times in U.S. history - and may be doing so again today.

During colonial times, for instance, jurors used the power to acquit colonial defendants of political crimes against the Crown. In the mid-19th century, Northern jurors kept the tradition alive by acquitting people who harbored runaway slaves, even though the law explicitly made this a crime. The constitutional prohibition against trying a person twice for the same crime protects the defendant in all such circumstances from having an acquittal overturned because the jurors didn't follow the law.

Some jury-nullification advocates now say blacks are justified in using their jury-room vote to fight what they perceive as a national crisis: a justice system that is skewed against them by courts, prosecutors and racist police such as former Los Angeles Detective Mark Fuhrman.

"Jury nullification is power that black people have right now and not something Congress has to give them," Butler says. In a forthcoming law-review article, Butler even argued that in nonviolent crimes, black jurors should "presume in favor of nullification."

"Black people," he writes, "have a community that needs building, and children who need rescuing, and as long as a person will not hurt anyone, the community needs him there to help."

Not surprisingly, prosecutors vehemently disagree with such reasoning, which they see as undermining the rule of law. "It's terrible and sad that juries will base their opinions on race bias rather than the facts, but it happens every day," says Ahmet Hisim, the assistant state's attorney in Baltimore who lost the Neverdon case. "It's very bad for justice," he adds.

Hisim blames much of the problem on defense lawyers, whose "main ploy is to nullify juries for racial reasons," he says.

But some defendants are adopting race-based defense tactics themselves. Representing himself in an Atlanta trial last summer, Erick Bozeman openly pleaded with a jury to acquit him of serious federal drug charges because he is black. In his opening statement, he told jurors that the U.S. war on drugs was part of the same war on black people that "has existed in one way or another since African prisoners arrived in 1619 as slaves." He described his birthplace as "the urban war zone of South Central Los Angeles where the real law is money and survival" and his profession as that of a drug middleman, "a broker, just like Michael Milken and Ivan Boesky."

The case ended in a hung jury on the central charge, that Bozeman was a drug "kingpin," a crime punishable by life in prison. All three voting to acquit were black. Afterward, Judge Clarence Cooper, who is also black, privately told the jurors he was disappointed with the verdict, and he questioned their common sense.

As in the Neverdon case, the black jurors denied race was a factor in the verdict. Ulysses Garror, one of the jurors who voted for acquittal, says only, "There wasn't enough there to convict." But a white juror, Russell Snellgrove, now says, "These people, I hate to say this, it could have been a racial thing. They didn't come out and say it, but their arguments were such that it was apparent."

Different views of police

More prevalent than outright jury nullification is the greater tendency of many blacks to believe that police will falsify evidence and lie on the witness stand - factors that became major elements in the Simpson case. In this regard, African-American jurors are concentrating on the evidence, but filtering it, as any juror must, through their own perspectives.

Robert E. Kalunian, assistant public defender for Los Angeles County, while agreeing that "race does affect jury deliberations," adds, "It's not just race. It's life experiences. Blacks are more likely to have been jacked by the police, and less likely to view police testimony with quite the same pristine validity as a white male from the suburbs."

Defense lawyers in urban areas with large black populations routinely attribute acquittals they have won to distrust of the police. "African-American jurors who live in communities where cops are the enemy don't have to be educated that police lie," explains Peter Kirscheimer, a onetime Bronx legal-aid attorney who is now a federal defender in Brooklyn.

Many times, of course, a verdict may stem in part from jurors' evaluation of the evidence and in part from a broader, racially influenced desire to see certain defendants acquitted because circumstances make a conviction appear unfair to them.

This mix seemed to be at play in a gun-possession case in September in the same courthouse where the Simpson trial was in progress.

The stakes in the case were particularly high because defendant Byron Carter, 22 years old and black, had two prior convictions, and a conviction here would mean life in prison. Because it was a gun-possession case, the defense appeared to have an instant advantage. Jurors living in dangerous urban areas, recognizing a need to be armed in self-defense, are known to be particularly reluctant to convict for gun possession. Indeed, in the Bronx, 75 percent of such cases end in acquittals.

Deliberating after a six-day trial, the jury of five blacks, three Hispanic Americans, two whites and two Asian Americans split instantly into two conflicting camps.

Leading one side was Howard Anderson, the black 34-year-old jury foreman, who believed certain statements made by the two white arresting officers were transparently false. On the other side were Asian Americans Ken Chan, 27, and Paul Wong, 35, who felt the police were more believable than the defendant, since he was a convicted felon. One of the two white jurors says he felt Carter was guilty but came to believe the evidence wasn't sufficient.

The main issue for the panel was whether a young, urban black man would ever confess, as the police claimed, that, "I'd rather be caught in this neighborhood by the police with a gun than caught otherwise without one." The two arresting officers, who didn't record the statement or obtain Carter's signature on a written version of it, claimed he had made the confession after they confronted him in a van that was parked too far away from the curb.

Carter testified at trial that he actually said: "Everybody and their mama in this neighborhood got a gun." But he said he told the police that the weapon in question wasn't his. He also said the van was legally parked.

All of the black members of the jury immediately agreed that Carter's version of the statement was more consistent with urban slang than the police's, which was submitted as part of the alleged confession. After an initial discussion, the first ballot was 10-2 to acquit - with only Chan and Wong seeking a conviction.

Little agreement

The dissenters ultimately gave in, but, not a lot of convincing was done: "We reached a unanimous verdict, but we still don't agree on the facts," Chan says.

The jury experience "showed me the reason so many people are being locked away," Anderson says. Jurors without experience dealing with inner-city black defendants "just sit there and look on them as criminals before the trial even starts."

After the verdict, several black jurors talked openly about the illogic of sending another young black man away to spend his life in jail for what they considered the "victimless" crime of possessing a .22-caliber handgun. But was this jury prepared to defy the law? Not quite, says black juror Troy Richardson.

The thought of voting to acquit regardless of the evidence "did enter my mind," says Richardson, "but I decided if the evidence says he's guilty, I'm going to send him away."