The Gemara relates: Rav bar Sherevya had a trial pending before Rav Pappa. Rav Pappa seated him and also seated his litigant counterpart, who was an am ha’aretz (a simple man, not a rabbi). An agent of the court came and kicked and stood the am ha’aretz on his feet to show deference to the Torah scholars there, and Rav Pappa did not say to him: Sit. The Gemara asks: How did Rav Pappa act in that manner by not instructing the am ha’aretz to sit again? But aren’t the claims of the am ha’aretz suppressed by Rav Pappa’s perceived preferential treatment of Rav bar Sherevya? The Gemara responds: Rav Pappa said to himself that the litigant will not perceive bias, as he says: The judge seated me; it is the agent of the court who is displeased with me and compelled me to stand.

Shevuot 30b

Understandable outrage is brewing among many folks around me: At a San Francisco trial of a man accused of stalking and groping women, all the jurors are male. How could this happen? And is it lawful? Let’s go over some terminology:

  • Population: everyone who lives in the county.
  • Sampling frame: the group of people from which one can draw a sample. For our purposes, the folks whom the law deems eligible to serve on juries in the county.
  • Venire: Everyone who received summons to appear for jury selection (the selection process itself is called “voir dire.”)
  • Panel: The people who are eventually seated on a particular jury.

The constitution requires that the jury be drawn from a “fair cross-section” of the population: in other words, that the jury pool–the overall sampling frame from which people are summoned for the venire–be reflective of the population. If some recognizable minority group is systematically disqualified from serving, the selection method is unconstitutional. In the landmark case Taylor v. Louisiana, the Supreme Court invalidated a jury selection scheme by which women were not summoned at all to the jury pool unless they explicitly chose to opt in. Similarly, schemes like Texas’ “key man” system, where there’s some official who gets to pick and choose who’s on the jury (and thus, for example, underrepresents Mexican-Americans) have been invalidated.

Having a sufficiently diverse jury pool, however, does not guarantee the empaneling of a diverse jury. Consider the following example: you have 100 pebbles, 50 of which are gray and 50 of which are purple.

The statistical odds of drawing a purple pebble are 0.5, which means that, in a random selection of 12 pebbles, the stats predict you have great odds of having a mix of gray and purple pebbles. But you can easily imagine many random drawings that will only include gray pebbles.

This is exactly what happened here, except for an important fact: the twelve jury members were not drawn at random. Annie Vainshtein and Nora Mishanec reported for the Chron:

During jury selection, some women said they could not impartially weigh the evidence that would be presented at trial due to personal experiences with sexual assault or harassment, or negative feelings toward Hobbs’ attorney, which prompted Superior Court Judge Harry Dorfman to dismiss them.

Others from the pool were unable to serve on the jury for different reasons; one woman said she had booked an upcoming cruise. Several jurors, one of whom was male, were dismissed after expressing opinions including that “sexual predators” should be segregated from society, and even face the death penalty. 

By the end of jury selection, the only woman selected was an alternate juror, who will hear all of the evidence but vote on the verdict only if needed.

Here’s the thing: robust social science research tells us that, when looking at groups of people in the aggregate, people’s life experiences and worldviews, which are often a function of their demographics, impact how they will assess evidence and judge a case. Which is why, even without resorting to the services of expensive trial consultants, prosecutors assume that people of color will be favorable to the defense, and defense attorneys assume that white men will be more punitive. The name of the game in voir dire then becomes getting rid of as many people whom you suspect will be unfavorable to your side. The problem is that, even though we can make these generalizations regarding groups, we have a deep social distaste about making them regarding individuals: people generally recoil from being told that they must think a certain way because of who they are, even though in the aggregate we know such statements to be true. This is why one can’t mount a for-cause challenge for disqualifying a woman, any woman, from the trial of an alleged stalker/groper just on the basis of her sex/gender. In science, it’s known as the group-to-individual (G2i) problem, and it affects various areas of legal decisionmaking.

Over the years, parties have tried to skirt this problem by using peremptory challenges to get rid of demographics they suspected of being unfavorable to them; the advantage of this strategy was that peremptories didn’t require an explanation. But the Batson doctrine allows the opposite party to challenge such use of peremptory challenges when they reveal a pattern of discrimination against a suspect racial or gendered group. It used to be the case that all the prosecution had to do was provide a race neutral explanation for their challenges (which, admittedly, would be difficult if there was evidence to refute this.) Now, California’s new peremptory challenge laws, enacted through AB 3070, make it a lot more difficult to get away with this sort of thing, because the prosecution’s explanation has to be reasonable, and it also cannot correlate with a seemingly race-neutral explanation that strongly correlates with race, gender, or any other suspect category.

But this is not what happened here! The women were dismissed using for-cause challenges because they directly opined that they would not be able to impartially weigh the evidence. This I find dubious (though not impossible) and it leaves me with serious discomfort. To drive home the problem, consider the following analogy: assume a white police officer is on trial for shooting and killing an unarmed black man. Imagine that, at jury selection, every single black prospective juror says that they would not be able to impartially weigh the evidence and, consequently, we end up with an all-white jury. Does this pass the “fair cross section” test? Yes–there were people of various races in the jury pool. Does this pass the Batson test? Sure! No peremptory challenges were used; everyone who was struck was struck for cause. Are you comfortable with the outcome?

How could this have been fixed? First, I think that prospective jurors can and should trust their ability to make good decisions with the life experience that they have. Like 50% of the people on the planet, I have been sexually harassed, catcalled, groped, pestered for sex, and other fine experiences. Does that mean I would not be able to seriously consider the possibility that a person who did this to others was severely mentally ill, or that there was an eyewitness identification problem? I worry that the emphasis we put on group identity in contemporary discourse has locked people into beliefs that they are immutable members of whatever demographic they belong to and there’s nothing more to them, and that is impoverishing and disappointing. Second, I think the onus here was on the prosecution to ask the prospective jurors questions that would probe the extent of the bias. For example, I think a fair question would have been, “would your experience with harassment lead you to find someone guilty even if there was defense evidence that the police got the wrong person, or even if there was persuasive psychiatric evidence that the defendant didn’t know what he was doing?”

If such a stunning number of women find themselves unable to fairly adjudicate a sexual harassment case, then the root of the problem here is not the jury selection process itself. It is the fact that harassment experiences in public space are so common and far more malignant than people think. In her book License to Harass, my colleague Laura Beth Nielsen exposes the unbearable lightness of offensive speech in public space and the many insidious ways in which it affects people’s everyday lives and decisions. It turns out that even behaviors that might not be a big deal on a one-off basis can add up to the point that people are so fed up with them that they don’t feel they can be objective on a jury.

If that’s what happened here, it’s a damn shame. Because the irony is that the very fact that there are many other people like this guy (who maybe just yell obscenities, rather than grope, and thus completely escape public censure) is what makes it impossible to adjudicate this guy by a true jury of his peers, which should include women.

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