A Proposal for Unfair Juries

Several of my recent columns have been devoted to concerns about the impact of cultural differences on law. Those columns have recognized that the legal system, as it existed, particularly in the South, was a factor in our creating different cultural systems based on race. Unfortunately, the legal system itself discouraged black participation. The exclusion of blacks from the system and mistreatment of blacks by the system resulted in lack of support for the legal system in the black culture. The legal system itself necessitated totally different social structures and institutional structures and reinforced the cultural differences. The segregated institutions included schools, churches and other community organizations. We pointed out in earlier columns that because a working legal system is a prerequisite for economics, the cultural differences can have an adverse impact on economic development.

Desegregation did not eliminate the cultural differences. The remedies provided by the Voting Rights Act created a quilt pattern of segregation in which predominantly black counties came to be governed by the cultural system that evolved because of slavery and segregation. There was continuity of the cultural institution that existed during segregation in those counties, and large scale elimination of influence of the white culture. This development did not usher the black population into the good life of America. Nowhere is the impact greater than in the court system itself. The differences that exist between predominantly black counties in Alabama and predominantly white counties with the regard to the prospects of jury verdicts in trials are extremely significant.

Forum shopping - choosing the county in which to file litigation - has become a way of life with the legal profession. A docket call in rural Macon County almost looks like a meeting of Alabama Bar Association. Litigation that can be filed in Macon, Bullock, and Lowndes counties has a far greater prospect of success for the plaintiff than if filed in Lee, Elmore, or Autauga counties. These significant differences are very difficult to justify in a country that prides itself on providing equal justice for all. To again paraphrase the French enlightenment philosopher Pascal, it is a strange justice that changes with the crossing of a river. (or traveling a few miles on the interstate)

As a practical matter, modern means of transportation and communication probably would justify redrawing county lines and eliminating a large number of counties. That action could promote efficiency and save a lot of money. While it might be totally impractical politically to attempt to revamp the configuration of counties, such a drastic step may not be necessary to solve the problem described here. It would be relatively simple to make much larger districts from which jury panels are chosen. Once the legal framework has been established, a computing program would do the rest. Modern transportation and communication could make the task easy. The State could be divided into ten or fifteen judicial districts and jury panels could be drawn from the entire district. District lines could be drawn to create proportional racial make-up. Jury panels, convened in the present court houses from such districts would provide a much more uniform jury for every case. That solution would be much more effective than the present system of evaluating every jury based on the Batson Case which requires race neutral reasons for jury strikes.

Revamping the system of jury selection for uniform results in jury trials is important, in and of itself. It would help assure equal justice for all. However, the secondary effects would likely be even more important. As previously mentioned the adverse economic impact of lack of uniformity in application of the law is significant. Law is a prerequisite of economics. By taking steps to assure a more uniformity in the black/white ratio on juries throughout the state could contribute materially to economic development in the state. It could help promote economic development in every county.