King Case Stirs Debate on Jury Selection Rules : Courts: Under new procedure, questioning to find prejudice fell to the judge--the least likely person in courtroom to make such queries, a lawyer says.
Probably no one--not even the jurors who acquitted the four Los Angeles police officers--will ever know exactly what role racism played in the Rodney G. King verdict.
But some things about race and the King case seem clear:
* The prosecutors, as in most cases, did virtually nothing to detect hidden racial bias in prospective jurors, because they decided before the trial that race was not an issue.
Jurors are “supposed to put things like that aside,” said Deputy Dist. Atty. Terry White, the lead prosecutor--a statement he now acknowledges may have been too optimistic.
* The state’s new “speedy trial” jury selection rules, in which the judges ask the questions, made it unlikely that any jurors who held racist views would reveal them.
Lawyers formerly were able to question jurors about their backgrounds and attitudes before deciding which prospective panel members to challenge. That was changed by Proposition 115, an initiative sponsored by prosecutors in June, 1990, with the stated goal of reducing court delays and shortening trials. The new rules, which apply only to criminal cases, are modeled after the federal court system.
The overall effects are hotly disputed, but a jury consultant and several experienced lawyers agreed in interviews that the already difficult task of discerning racial attitudes has become far tougher.
The best way to get at attitudes is to ask “open-ended questions,” those that call on the jurors to talk about their feelings, said Lois Heaney, who works for a consulting firm called the National Jury Project in Oakland.
“You have to ask what sorts of contacts people have in their daily lives with people of other races, where they work, whether there are people of races different from their own in their schools. . . . Do you think there is racial tension in America today? When you walk down the street and approach teen-agers of a race different from your own, how do you feel?”
Those are the types of questions a judge is least likely to ask, said Hugh Manes, a Los Angeles lawyer and veteran of several decades of lawsuits against police.
“They’re satisfied generally to ask if a juror can be fair,” he said.
In civil suits, like King’s pending damage claim against the officers and the city, lawyers still question jurors and sometimes can uncover hidden beliefs, Manes said.
For the most part, “judges are simply not going to ask probing questions,” said Peter Keane, chief deputy public defender in San Francisco. “The judge likes to have jurors comfortable in the courtroom . . . and they want to get it over with.”
Not so, said James Morris, a Sacramento Superior Court judge who testified in the Legislature on behalf of the California Judges Assn. and the state Judicial Council in support of the new procedure. Judges may not “grill and probe” jurors at length the way lawyers do, but can draw out their attitudes through sensitive questioning, he said.
But Morris agreed with Heaney and the lawyers interviewed that it was practically useless to ask jurors an obvious yes-or-no question, like whether they were racist. That was just about the level of the questioning in the Ventura County trial of the Los Angeles police officers charged with using excessive force against King after they were videotaped by a witness.
A 41-page questionnaire distributed to prospective jurors by Los Angeles Superior Court Judge Stanley M. Weisberg contained two questions that related to race.
They were asked if they had ever been exposed to anyone who showed prejudice, and did they have any problem with the fact that King was black, three of the police officers were Anglos and the fourth was Latino.
Much of the questionnaire came from lawyers in the case, who were also allowed to suggest follow-up questions. None mentioned race.
“We didn’t present race as an issue in the case,” White said. “The only thing we can do is assume or hope that they’re going to follow the jury instructions. If we don’t assume that, then we might as well throw out the jury system.”
Some of the jurors’ post-trial comments appeared to indicate that race was a factor, White said. The prosecutor, who is black, said he still is not sure whether race influenced the verdict. He also said he would have preferred to question the jurors himself.
“He should have always understood that race was an issue,” declared John Burris, an Oakland lawyer whose specialties are criminal defense and police brutality suits. Describing the King case as winnable even in a white suburb, he said the prosecutors “thought the facts were so overwhelmingly bad that they never considered the biases people have.”
Those interviewed disagreed about whether a different type of jury questioning might have changed the verdict--most thought moving the trial to Simi Valley was more influential--but their comments suggested some lessons.
One was that not all possibilities for exploring juror attitudes have been exhausted. Burris said questionnaires and submission of questions to judges can be an adequate substitute for direct interrogation by lawyers. Morris said judges were willing to try new methods.
“Decades of legal culture were changed abruptly by the passage of 115,” the judge said. “Judges are still honing their skills, I hope.”
A less-encouraging lesson, particularly for defense lawyers, was the aberrational nature of the King case. Usually it is the defense, not the prosecution, that needs to learn about jurors’ racial attitudes in the hope of detecting bias against a minority defendant. If the case was a signal that prejudice will be harder to detect, defendants will be the ones who suffer most.
Bob Egelko is an attorney who covers state and federal courts for The Associated Press in San Francisco.