The Color of Justice on Cook County Juries

For 10 days, Sam W. Shipp held steadfastly to his belief that Jonathan Tolliver was not guilty of murdering Chicago Police Officer Michael Ceriale.

The lone holdout on the jury said the prosecution did not present enough evidence to convince him, beyond a reasonable doubt, that Tolliver was guilty. Tolliver’s fingerprints were not on the gun used to kill Ceriale, and prosecutors did not prove that Tolliver even had fired a gun, Shipp noted. And while seven witnesses had fingered the 19-year-old African American defendant shortly after the shooting, all recanted during the trial, saying police had pressured them to make false statements.

On Feb. 8, Cook County Circuit Judge Dennis Porter declared a mistrial on the murder charge. Tolliver now sits in a cell at Cook County Jail awaiting retrial. He also awaits sentencing for drug possession with intent to deliver. The jury acquitted Tolliver of a drug conspiracy charge.

Mayor Richard M. Daley criticized the outcome. Police Superintendent Terry Hillard said he was “disappointed.” But Shipp said many people told him he “did the right thing.”

In many ways Shipp would seem to be a typical juror. He worked 31 years for the Chicago Transit Authority, the last 11 as a supervisor. Now a 63-year-old widower, Shipp still lives in the home where he raised his two sons. Both are college graduates, and one is a member of the U.S. Navy.

But Shipp is unlike most jurors at the Cook County Criminal Courthouse at 26th Street and California Avenue. A resident of Auburn-Gresham on Chicago’s South Side, Shipp is black. He said he has seen Chicago police officers make mistakes. In 1999, he was arrested for drug possession, court records show. The police report said Shipp was found clenching two bags of cocaine in a vacant lot on the West Side. He contends he had no drugs and has never used them. The case was dismissed for lack of probable cause, said John Gorman, communications director for the Cook County State’s Attorney’s office.

Those experiences gave Shipp a perspective different from the other jurors. “They don’t see the police in the same light as black people,” said Shipp, the only black man on the 12-member, mostly white jury. “I prefer to believe that, than to believe they were out-and-out racist,” he told The Chicago Reporter. Shipp said a black woman was the last of the 11 to vote guilty.

Another juror said Shipp should have disclosed his run-in with Chicago police during jury selection, according to news reports. Shipp said he intended to mention the arrest, but was cut off during questioning–”before he had a chance to do so.

“If I had seen evidence that [Tolliver] had done the shooting, I would have voted him guilty. I would not hesitate,” said Shipp, who added that he felt no sympathy toward Tolliver because he is black. On a previous jury, Shipp voted to convict a black defendant, he said. “If I was leaning any way it would have been against [Tolliver]” because he considered him a drug dealer and a gang-banger.

Few people like Shipp get the chance to determine guilt or innocence at the criminal courthouse, where the Tolliver trial was held. Men from predominantly black areas of Cook County are less likely to be selected for juries at 26th and California than women, Latinos or men from white areas, shows an investigation by the Reporter.

William Hooks, a criminal defense attorney and immediate past president of the Cook County Bar Association, said the findings highlight racial discrimination by prosecutors during jury selection at the criminal courthouse, where two-thirds of all defendants are black men. “I call it jury tampering,” Hooks said. “It also deprives a black defendant of their Sixth Amendment rights –¦ the right to a jury of their peers.”

Gorman denied that prosecutors challenge jurors because of their race. “As a defense attorney, [Hooks] is an advocate in an adversarial process, and his statement must be seen in that context,” he said.

The Reporter analyzed information provided by Cook County Jury Administrator Anthony Barone, including the name, sex and address of every citizen who reported for jury duty from Jan. 1 to June 30, 2000. Civil and criminal jury trials are held at seven facilities in the circuit court system. The analysis includes only jurors selected for trials that lasted more than one day. Some civil cases are completed in a day, but nearly all criminal cases take longer, Barone said.

Last month, the Reporter also observed jury selection in seven trials at 26th and California, the only courthouse that exclusively handles criminal cases.

No agency collects race and income information from prospective jurors. However, the Reporter analyzed racial data from the 2000 Census and household income for the ZIP codes in which jurors live. Census tracts with populations of at least 90 percent black were classified as “black,” and those with populations of at least 90 percent white as “white.” Census tracts with populations of 60 percent or more Latino were considered “Latino.”

The Reporter’s five-month investigation found:

–¢ The greatest racial disparities in jury selection occurred at the criminal courthouse at 26th and California and the courthouse in northwest suburban Rolling Meadows, which account for about 29 percent of all the county’s prospective jurors. At these locations, men from predominantly black areas were far less likely to be picked for juries than men from mostly white areas, or women of any race or ethnicity.

–¢ At the courts at 26th and California, Rolling Meadows and southwest suburban Bridgeview, men ages 18 to 29 who live in black census tracts were about half as likely to be chosen for juries as those from white census tracts. Young men from Latino areas were chosen about half as often as young men from white communities at the courts in north suburban Skokie, Rolling Meadows, Bridgeview and south suburban Markham.

–¢ Between 52 and 68 percent of prospective jurors at the seven courthouses were from the suburbs. About 46 percent of Cook County’s adult population is suburban.

–¢ People from ZIP codes with average annual per capita household incomes below $15,000 were underrepresented among those who report for jury duty.

–¢ And overall, adults reporting from Latino areas were underrepresented in proportion to their population.

Civic Duty

The jury room at 26th and California looks like an airport waiting area during the Thanksgiving holiday. Up to 400 people gather daily to fulfill their civic duty. They sit in rows of seats facing television monitors; restrooms, candy and coffee machines are nearby. Their day begins at 9:30 a.m. and can last into the evening. They earn about $17 for reporting and another $17 for each day they serve.

Jury Room Supervisor Allen Klein orients the prospective jurors, peppering his speech with humor. After viewing a video about jury selection, they wait to see if they’ll be called to a courtroom. Some are, but many spend the day waiting–”watching television, reading or sleeping.

All U.S. citizens who are 18 years or older, live in Cook County and are not currently on probation or parole, are eligible for jury duty. Once a year, the court compiles a master list of millions of names gleaned from lists of licensed drivers, registered voters and individuals with state identification cards, Barone said. The list is shuffled and the first one million names are tagged as potential jurors. About 80,000 people are summoned each month.

The county’s court facilities are at the Richard J. Daley Center in downtown Chicago, 26th and California in Chicago, and locations in Bridgeview, Markham, west suburban Maywood, Rolling Meadows and Skokie. In Chicago and Maywood, prospective jurors are drawn from the entire county, Barone said. Rolling Meadows and Skokie only draw people living north of Roosevelt Road, while Bridgeview and Markham only draw those south of Roosevelt Road.

The Reporter analyzed data on the 84,422 people who reported for jury duty at the Chicago and Maywood courts and compared those numbers to adult population figures from the census and household income estimates from Claritas Inc., a national marketing research firm.

ZIP codes with per capita incomes below $15,000 had 17 of every 1,000 adults report for jury duty, the lowest rate among all income groupings. Areas with incomes between $30,000 and $35,000 registered the highest ratio, with more than 25 of every 1,000 adults reporting.

No information was available to determine whether people who didn’t show up for jury duty were not summoned, were not on the master list or did not respond. However, residents from the poorest areas may be underrepresented on the county’s master list because they are less likely to own a car.

Twelve of every 1,000 adults from Latino areas reported for duty, compared to about 23 for every 1,000 from black areas, and 27 per 1,000 from white communities. Many Latino residents are not U.S. citizens and therefore cannot serve as jurors, said Patricia Mendoza, regional counsel for the Mexican American Legal Defense and Educational Fund, a national civil rights organization. Nearly 47 percent of the adult Latinos in Cook County are not citizens, noted Rob Paral, a research consultant.

More Latinos should serve, Mendoza said. “People bring their own experiences to the jury box. No matter what people are told, they’re going to judge based on those experiences.”

While people from mostly black and mostly white communities report for jury duty at similar rates, they are not selected in equal numbers. For example, men from black areas were least likely to be chosen for juries at 26th and California and at Rolling Meadows.

“We know that blacks are not on juries,” Hooks said. “I had no idea that we had the turnout rate that we did. Your study has dismantled that myth about us being lazy.”

Hooks said the racial disparity is evidence that prosecutors “deliberately and institutionally” remove African American males. He added, “There’s something much more insidious going on here than blacks not living up to their constitutional duty.”

Gorman of the state’s attorney’s office said prospective jurors are removed for many reasons. For example, they may have been crime victims or have arrest records, or they may be self-employed, making jury service a financial hardship, he said. “It is never because of race.”

Among 18- to 29-year-old men at 26th and California, about 9 percent of men from black areas were selected, compared with 17 percent from white areas.

Fifty men between 18 and 29 from Latino areas reported at Skokie or Rolling Meadows. None were selected for juries. And only three of the 111 young Latino men who reported at Bridgeview or Markham were picked, the Reporter found.

“I think that’s a problem for people to be summoned to the courthouse and not called to serve,” said Stanford University law professor Barbara Babcock, an author of articles and books on discrimination in jury selection.

Fine Line

While the summons process is random, jury selection is not. To detect biases, the judge and attorneys question prospective jurors about their lives, experiences, feelings and families.

Based upon the responses, attorneys representing either side are allowed to remove prospective jurors. But those who suspect discrimination in the process can use the landmark 1986 U.S. Supreme Court decision, Batson v. Kentucky, to challenge the removals.

Alan J. Greiman, chief judge of the 1st District of the Illinois Appellate Court, said some prosecutors may fear black faces in the jury box, believing they may be sympathetic to a black defendant. And there’s nothing wrong with an attorney removing a prospective juror who is likely to be sympathetic to the other side, said Greiman, who has been one of the state’s harshest critics of Batson violations. “But if you play with race, it’s a no-no.”

The legal system has failed to adequately draw a distinction. Clearer definitions of “race-neutral” reasons for peremptory challenges could help, Greiman said.

“The motivation for prosecutors to peremptory challenge blacks may not necessarily be rooted in racist behavior,” said Rob Warden, executive director of the Center on Wrongful Convictions, a program at the Northwestern University School of Law. “It’s simply because the typical African American juror is going to be much more distrustful of the police story than the average white juror.”

However, attorneys have been judging prospective jurors by their race, ethnicity or nationality for years, said Babcock of Stanford. To some degree the whole practice of peremptory challenges “is based on this idea of unspoken prejudices,” she added.

Donald P. O’Connell, chief judge of the Circuit Court of Cook County, said there are many ways judges can address concerns about peremptory challenges or the racial makeup of the jury pool. “Every judge true to his or her oath is opposed to inappropriate use of peremptory challenges,” he said. O’Connell added that he hasn’t received any complaints about judges disregarding their duties under Batson.

Judges use a three-part test to determine if discrimination has occurred in jury selection. First, an attorney must identify a pattern of discriminatory peremptory challenges by the opposing attorney. If the trial judge agrees, he or she can ask the opposing attorney to explain race-neutral reasons. If the judge deems the challenges race-neutral, they are allowed to stand. Otherwise, the challenged jurors remain.

A pool of 40 to 60 jurors can include 10 to 15 blacks and Latinos, said Cook County Public Defender Rita Aliese Fry. “If you’re real lucky –¦ as a defense attorney, you hope that you can keep one or two of them.” She said black and Latino men may be less likely to be picked for juries because they are more likely to have criminal records.

In jury selections observed by the Reporter, whites, blacks and Latinos who said they had been arrested or convicted of crimes had different experiences. The Reporter logged the responses of 216 prospective jurors on March 13, 20 and 26. Six of seven whites who had been arrested or convicted of a crime were picked for juries. But of the four African Americans and three Latinos who had been arrested or convicted, none was selected.

In Cook County, no one tracks every peremptory challenge or allegation of racial discrimination, experts said. And Jim Grogan, chief counsel for the Illinois Attorney Registration and Disciplinary Commission, said the agency has investigated allegations of Batson violations, but no attorney has ever been charged.

Still, judges have made strong remarks about Batson abuses. In his majority opinion reversing a 1995 murder conviction, Greiman ordered a new trial and pointed out “the charade that has become the Batson process.” He wrote: “Surely, new prosecutors are given a manual, probably entitled, –˜Handy Race-Neutral Explanations’ or –˜20 Time-Tested Race-Neutral Explanations.’–¦ It might include: too old, too young, divorced, –˜long, unkempt hair,’ free-lance writer, religion, social worker, renter, lack of family contact, attempting to make eye contact with defendant –¦” and a long list of other reasons. While some of those reasons can be legitimate, Greiman said, others are far-fetched.

Chicago defense attorney Joan Hill-McClain raised Batson claims against prosecutors’ peremptory challenges of two black prospective jurors in the March 6 trial of Darian Lee, a 23-year-old African American man accused of motor vehicle theft and aggravated possession of a stolen motor vehicle.

Hill-McClain argued that prosecutors excused Krystal White and Donyell Madison because they were black, according to the court transcript. Prosecutor Adam Monreal offered race-neutral reasons for the challenges. Judge Mary Maxwell Thomas allowed the challenge to White, but disallowed it for Madison, who served on the jury.

Hill-McClain also asked Thomas to bar prosecutors from using criminal background checks on prospective jurors because the information was obtained without their knowledge. “This is the only county in the entire state of Illinois that does such a criminal history background search for each and every prospective juror, and the whole purpose we believe is to keep blacks, particularly black males, off the jury,” she said.

Thomas allowed use of the background checks but ordered that prosecutors share the information with the defense. Lee was found not guilty by a jury that included five African Americans.

According to Cook County Circuit Judge Leo E. Holt, a criminal judge since 1987, “You’re never going to address this problem by trying to tinker with the peremptory challenges. Any lawyer worth his salt can articulate race-neutral reasons for what he is doing.” He said the only sure way to root out discrimination in jury selection is to abolish the peremptory challenge. But many legal scholars believe that is unlikely.

Judges can limit racial discrimination in jury selection only if they are able to recognize it, Holt said. But “most white folks are not sensitive to racism in this country. Very few white judges and lawyers, in my judgment, will tell you that the system is racist because it looks like the rest of the society that they live in.”

In an appeal of a 1990 murder conviction, the public defender’s office in Rolling Meadows challenged the juror selection process, arguing that prospective jurors should be drawn from the entire county, Assistant Public Defender Scott Slonim said.

The case was appealed to the Illinois Supreme Court, but was rejected. A study prepared for the public defender by Paul Kleppner, a professor and director of the office for social policy research at Northern Illinois University, showed that while 83 percent of registered voters living north of Roosevelt Road were white, 13 percent were black. As a result, blacks were underrepresented in the jury pool for the north suburban courts, Slonim said. “It was a very real and legitimate problem 10 years ago. I believe it still is today.”

O’Connell said the Illinois General Assembly split the jury pool between the north and south suburban courts to limit jurors’ inconvenience. But in response to the Reporter’s findings, he said the circuit court would be willing to consider summoning jurors countywide for criminal cases in suburban courtrooms “on an experimental basis.” Still, O’Connell said he fears the distance would discourage people from reporting.

Peer Review

At 26th and California, most defendants may be surprised to learn they are entitled to be tried by “a jury of their peers.” The Reporter reviewed the court docket for Feb. 28, 2000, and found:

–¢ Of 894 defendants, more than three-fourths were black, while 12 percent of the 110 people selected for juries that day lived in predominantly black areas.

–¢ About 8 percent of defendants were white, while 23 percent of the selected jurors came from white areas.

–¢ Nearly 12 percent of defendants were Latinos, while three jurors lived in Latino areas.

–¢ More than 58 percent of the jurors lived in Chicago suburbs, compared to less than 5 percent of the defendants.

Hooks said African American and Latino defendants can be intimidated by juries that don’t look like them. And whites who have long-standing prejudices against African Americans do not leave those feelings behind when they report for jury duty, he added. “There is no instruction a judge can give to a jury that can eliminate racism.”

Minority defendants often wonder whether they will receive a fair trial if they don’t see minority faces in the jury box, Fry said. “Your client is sitting there thinking –¦ –˜how are (the jurors) –¦ going to understand that this is what happens in my community, that police lie, that because I’m in a gang doesn’t mean I did this crime?’ ”

That was Rosalind Green’s experience. Green was a juror in the March murder trial of alleged gang member Pablo Guerra. The mostly white jury could not agree on a murder conviction, Green said. While she and the one other black juror agreed that Guerra pulled the trigger, they questioned whether the crime was first or second-degree murder or manslaughter.

Green said Guerra was trying to protect himself, and the victim was a bystander caught by a bullet meant for someone else. Guerra thought rival gang members were going into the alley to get a weapon, so he fired, Green believes.

The black jurors “understood the gangs and how they run,” she said. “That’s part of living in the city. We understood where (Guerra) was coming from–¦(The white jurors) said he shouldn’t have fired even though his life would have been in danger.” Guerra pleaded guilty to first-degree murder.

The experience “was the worst three days I ever spent,” Green said. “I don’t ever want to sit on [a jury] again.”

But Sam Shipp feels differently. “If they call me, I will serve.–¦ I hope most black people would feel (this) way. Don’t try to get off jury duty. That’s part of the system. If we as blacks do everything under the sun to get off serving on a jury, then where’s justice?”

Contributing: Cindy R. Barrymore, Danielle Duncan, Tim Hollander, Micah Holmquist, Mari Katsumura, Eric W. Luchman, Kimiyo Naka, Ellyn Ong, Elizabeth Raap, E.J. Rublev, Eric Satre and John Stanovich helped research this article.

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