Circuit Judge Wendell Griffen issued an order today warning that race may not be used in challenging jurors for the Sept. 15 retrial of former Little Rock police officer Josh Hastings for manslaughter in the shooting death of Bobby Moore, 15.
Griffen’s order noted that an all-white jury was chosen for the first trial and that defense lawyers, without objection from the prosecution, used peremptory challenges five times to remove people of color — a Latino man and three black women. The judge said peremptory challenges could be used for any reason, but a pattern of racial strikes could give rise to an inference of discrimination.
“Given the exclusion of all persons of color from the jury in the previous trial attempt and to avoid a recurrence of what transpired during the previous trial attempt, all counsel are hereby directed to re-familiarize themselves” with relevant court precedents on jury challenges.
Griffen said that he intended to hold both defense and prosecution to account and would question both sides “if a challenge appears to be based on either the race of a prospective juror or on racial stereotypes held by a party.”
The judge also said he’d conduct the voir dire, or questioning of potential jurors and will inform lawyers of the questions he intends to pose. They may submit additional questions for the court’s approval. He said his questions will include some about racial and other forms of prejudice. These may include jurors’ views about law enforcement personnel, “police interactions with persons suspected of unlawful activity” and others.
He emphasized, “The court will not allow jurors to be excluded because of racial bias or stereotypes.” To that end he said he would “closely observe and scrutinize” peremptory challenges.
By way of context: Griffen wrote an essay recently on the lack of “cultural competency” in the trial of Trayvon Martin.
One wonders how, in 2013, a six-person jury was selected that included no African-Americans in Seminole County, Florida. One wonders how and why the prosecution team did not address the reality of racial profiling, racial prejudice, and racial stereotypes during jury selection in order to be able to intelligently decide whether to challenge prospective jurors for cause on account of racial prejudice, or to exercise peremptory challenges for prospective jurors considered unacceptable. One wonders whether the prosecution team included anyone skilled in cultural competency and inclusion.
Is “cultural competency” an issue in the Hastings trial? Race is certainly a factor near the surface. Hastings is white. The youth he killed is black. He was suspected of car burglary. Hastings said he fired on a car Moore was driving because it threatened him. The prosecution has said Hastings hasn’t told the truth about circumstances that night and deadly force wasn’t necessary. The case is but one of many uses of police force against black suspects and some of the cases are the subject of a federal lawsuit.
Despite the selection of an all-white jury, it split, members said, 9-3 in favor of conviction of Hastings. But jurors also said holdouts had been supportive of the police against a victim with a criminal record from the outset of deliberations.