Source: wnyc.org
Simcha Walfish
B.C.L./LL.B. II, Faculty of Law, McGill University
March 1, 2018
Introduction
Following the jury selection in the trial of Gerald Stanley, a white Saskatchewan farmer who was charged with the murder of a young Cree man named Colten Boushie, Boushie’s cousin, Jade Tootoosis, said: “It was really difficult to sit there today and watch every single Indigenous person be challenged by the defence.” The resulting all-white jury acquitted Stanley in what many have called a miscarriage of justice. The fact that the defence could remove all Indigenous jurors has led to renewed calls for the reform or abolition of peremptory challenges in criminal trials. According to law professor Kent Roach, “Such challenges, where the accused or the prosecutor look the prospective juror in the eye and simply says challenge or not, are a stone-cold invitation for jury selection to be infected by conscious or unconscious racist stereotypes.”
In “The Feel of Justice,” Howes and Classen write, “Law, through its conventional association with reason, has been seen as opposed to, or at least situated outside, the realm of the senses.” Justice is (ideally) represented as blind. They go on to document how pervasive a role the senses and sensory judgments actually play in multiple domains of law. The jury selection process is a case in point. It puts sensory judgments front and centre in a crucial moment in the criminal trial. A peremptory challenge is an opportunity for each side in the criminal trial to eliminate prospective jurors without giving a reason.[1] Armed with little information to make a reasonable choice, lawyers rely on their senses. Unsurprisingly, lawyers turn to stereotypes to interpret that sensory data.
As Tanovich, Skurka, and Pacioccio write in Jury Selection in Criminal Trials: Skills, Science and the Law,
There are essentially two general kinds of criteria that are employed by lawyers.
First, there are the generalizations or stereotypes about people in general, assumptions about how persons of a given sex, age, occupation, social status, or even race, colour, or creed are apt to see the case that is being tried.
Second, there are judgments that are made about the juror as an individual, including such characteristics as demeanour, comportment, dress, apparent intelligence, and even physique. Each kind of judgment is fuelled by the lawyer’s own beliefs about what people are like, as well as the lawyer’s experiences from prior cases.
Lawyer’s choices are not limited to how they see jurors. In his sensationalist account of jury selection, trial consultant-to-the-stars Richard Gabriel writes that “when you pick juries, you train yourself to hear voices. You sit and listen to prospective jurors, and then you project what their voices will sound like in deliberations. And you listen to those voices to try to match them to the verdict you want.”
This process of judgment has contributed to a systematic exclusion of Indigenous jurors.[2] Since reasons need not be given, it can be difficult to assign discriminatory reasons to a specific dismissal. But sometimes the circumstantial evidence points strongly towards a consciously racist motive. Cree journalist Doug Cuthand, commenting on Stanley’s jury selection, writes that: “Prior to the trial Stanley’s lawyer, Scott Spencer, issued a statement saying that the trial was not about racism. Then during the jury selection process he proceeded to challenge every identifiable Indigenous person. The result is a jury for a racially charged case with no identifiable Indigenous people.”
One reason is that lawyers consciously choose to exclude Indigenous jurors for strategic reasons. Another subtler form of racist exclusion is in everyday judgments about jurors based on appearance and behaviour. To borrow a phrase from Howes and Classen, both forms of judgments about Indigenous jurors form part of “the sensory assumptions of the Western legal system,” assumptions made by a predominantly white legal profession.
Lawyer’s judgments
Lawyers rely on more than just racial stereotypes. Left to rely on their senses, they have developed extravagant theories to predict favourable verdicts from juries. These theories assume that jurors will decide cases not on the evidence but from their own identities. For example, in 1968, American judge JC Adkins writes “Some lawyers study physiognomy and believe that certain types of people have certain characteristic responses. Fat people are said to be jovial; a fair complexion evidences a warm heart with a sense of humanity; people with light hair are sympathetic; people with thin, sharp faces are self-opinionated and stubborn.”[3]
In a recent paper, Gilda Mariana writes that “Lawyers have similarly applied the laws of physiognomy or phrenology in their voir dire examination. Relying solely on physical characteristics, they have sought to separate the sensitive, emotional, and generous juror from the pessimistic, narrow-minded individualist. For example, a short upper lip has been viewed as indicative of sensitivity, but a long upper lip reveals a strong individualist.”
Even when lawyers do not rely consciously on theories that racist stereotypes will predict the verdict, they may arrive at equally racist conclusions by misinterpreting sensory cues from non-white jurors. This problem goes far beyond jury selection. In their 1991 Report of the Aboriginal Justice Inquiry of Manitoba, Justices Alvin Hamilton and Murray Sinclair argue that legal actors “can hardly be impartial when they misinterpret the words, demeanour and body language of individuals.”
In the famous example given by Rupert Ross, a former Crown prosecutor in the North:
Most Europeans, for example, have an expectation that someone who will not look you straight in the eye is demonstrating evasiveness. We suspect that we are being either brushed off or lied to. When we wish to demonstrate our own sincerity and respect, we make a point of squarely facing the other and establishing the strongest eye contact we can sustain. I have learned, to my chagrin, that in some northern reserve communities looking another straight in the eye is taken as a deliberate sign of disrespect, for their rule is that you look inferiors straight in the eye. Fortunately, I have not insulted too many people, though only because they knew I was just an ignorant white man who did not even know how to behave civilly. More unfortunate was the fact that for many years I had been misinterpreting them, especially on the witness stand. I have been reading evasiveness and insincerity and possible lies when I should have been reading only respect and sincerity.
Even when lawyers do not consciously choose to discriminate, their assumptions on things like body language and eye contact will colour their judgments on a juror’s intelligence, reliability et cetera.
Justifying Peremptory Challenges
The justification for peremptory challenges is usually that it gives legitimacy to the process in the eyes of the accused. There is also a discomfort that the judge should have the final say in jury composition. In 1980, the Law Reform Commission of Canada’s justification was that it is necessary for the accused’s confidence in the trial:
Its importance lies in the fact that justice must be seen to be done. The peremptory challenge is one tool by which the accused can feel that he or she has some minimal control over the makeup of the jury and can eliminate persons for whatever reason, no matter how illogical or irrational, he or she does not wish to try the case.
Courts have been reluctant to intervene even in the most blatantly discriminatory uses of peremptories. The 1993 case R v Lines is a stark example. In the trial of a police officer charged with shooting a young Black man who was running away, the Crown asked the judge to prevent the defence from removing Black jurors. The judge refused:
In a criminal trial the accused is pitted against the state. In my opinion it is fanciful to suggest that in the selection of a jury he doffs his adversarial role and joins with the Crown in some sort of joint and concerted effort to empanel an independent and impartial tribunal.
For these reasons, the Crown motion to restrict the use of the peremptory challenge is dismissed. The Crown will be guided by its own conscience in its use of the peremptory challenge and so will the accused.
In the justifications for peremptory challenges, the fact that they can be based on “illogical or irrational judgments” is essential to their purpose. If law usually sees itself as representing reason in opposition to the irrational senses, here the supposed irrationality of the senses is given the final say.
Conclusion
Sherene Razack notes that Ross’s commentary is useful for seeing past “cultural interpretation through white male eyes.” But she also criticizes Ross, for reducing structural racism against Indigenous people in the justice system to “cultural” differences and misinterpretations. In our context, the discriminatory use of challenges is not simply a problem of culture. The moment when a lawyer is asked to “go with their gut” and zealously represent their client needs to be contextualized. As Justices Sinclair and Hamilton write, “For Aboriginal people, the essential problem is that the Canadian system of justice is an imposed and foreign system.” In a criminal justice system whose treatment of Indigenous people is inextricably bound to colonialism, the rational lawyer, with only “experience” and their senses to rely on, chooses to discriminate.
While we can conclude that peremptory challenges invite discrimination based on the sensory assumptions of the Western legal system, eliminating or reforming them alone would not solve the problem. As Justice Iacobucci writes in his report on the representation of First Nations on Ontario juries, “if every change in the Report is implemented to its fullest, First Nations jury service could still be significantly undermined through discriminatory use of peremptory challenges.” The converse is also true: if the discriminatory use of peremptory challenges were to be eliminated, the deeper structural issues would remain. Reforming or abolishing peremptory challenges would not be revolutionary but it could at least remove one opportunity for open discrimination in the criminal justice system.
All of the links in this Probe were accessed on 1 March 2018.
Further reading:
Indigenous Deaths Echo Through Canada’s History Of Injustice by Tanya Talaga, author of Seven Fallen Feathers: Racism, Death, and Hard Truths in a Northern City
Object Anyway, a great episode of the podcast More Perfect about race-based jury selection in the United States.
The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System by David M. Tanovich, on how “Charter has, to date, had very little impact on racial injustice in Canada.” It includes an interesting discussion on the judicial reluctance to address the racist use of peremptory challenges.
How a broken jury list makes Ontario justice whiter, richer and less like your community by Ebyan Abdigir, Kvesche Bijons-Ebacher, Palak Mangat, Robert Cribb, and Jim Rankin, “A two-year Toronto Star/Ryerson School of Journalism investigation documenting the racial makeup of jurors in 52 criminal trials since 2016 in Toronto and Brampton reveals flaws in the jury selection process that skews towards property owners, fails to reflect the GTA’s growing diversity and excludes potentially millions of Ontarians from serving their civic duty.”
5 years on, Ontario’s plan to get more Indigenous people on juries a work in progress
In the trial of Gerald Stanley, an all-white jury runs from justice by Robert Jago
- The ability of the Crown and defence to peremptorily challenge a juror is found in section 634 of the Criminal Code. Depending on the gravity of the offence, each side has between four and twenty peremptory challenges. The Code distinguishes between peremptory challenges and each side’s unlimited number of challenges for cause, used, among other things, to remove a juror who has a conflict of interest. ↑
- First Nations Representation on Ontario Juries, Report of the Independent Review conducted by The Honourable Frank Iacobucci (2013); R. v. Kokopenace (2015); The Underrepresentation of Indigenous Peoples on Canadian Jury Panels by Mark Israel (2003); Report of the Aboriginal Justice Inquiry of Manitoba (1991). ↑
- Cited in http://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=3030&context=nclr ↑
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