MINNEAPOLIS — In his effort to find an impartial jury, the lead defense attorney for Derek Chauvin has spent the past two weeks questioning potential jurors about their views on racism, discrimination, policing of communities of color and Black Lives Matter.

But on Thursday, Eric Nelson told a prospective juror that the trial is “not about race.”

The response to George Floyd’s death suggests many people believe otherwise. For weeks, thousands of people in all 50 states protested against systemic racism and police brutality, spurred by the sight of a Black man dying under the knee of a white police officer after centuries of white supremacist violence against Black people.

“We’re at an interesting point in society where people are telling us what is and what is not about race. I’m not sure that the defense attorney in this case gets to make that decision,” said Samuel R. Sommers, a social psychology professor at Tufts University who studies the impact of race on the legal system, “It’s a tragedy, but it’s become a racially charged instance as well because of what else is going on our society.”

Chauvin is not charged with crimes related to racial bias. But experts say the issue of race is at play not only in Floyd’s death but in the courtroom during jury selection. And it will likely have an impact on deliberations and the verdict.

“Nothing magical happens to individuals who show up for jury duty that makes them somehow immune to racial biases,” Sommers said.

Jurors who believe race impacts the legal system are ‘absolutely right’

Nelson’s assertion bears similarities to previous law enforcement denials that systemic racism is a factor in recent high-profile police killings of Black people.

In October, Louisville Police Sgt. Jonathan Mattingly, one of the officers who fired weapons in a failed drug raid that took the life of Breonna Taylor, a 26-year-old Black medical worker in Kentucky, said the incident was “not a race thing like people try to make it to be.”

When asked why a 17-year-old white teenager accused of killing two protesters and injuring a third in Kenosha, Wisconsin, was arrested but Jacob Blake, a 29-year-old Black man, was shot several times in the back, former Attorney General William Barr told CNN in September he doesn’t believe there are “two justice systems.”

In this screen grab from video, defense attorney Eric Nelson speaks as Hennepin County Judge Peter Cahill presides over jury selection in the trial of former Minneapolis police officer Derek Chauvin on Wednesday, March 17, 2021 at the Hennepin County Courthouse in Minneapolis, Minn.

“I think the narrative that the police are on some, you know, epidemic of shooting unarmed Black men is simply a false narrative and also the narrative that that’s based on race,” Barr told CNN. “The fact of the matter is very rare for an unarmed African American to be shot by a white police officer.”

And on Tuesday, after eight people, including six women of Asian descent, were killed in three shootings at Atlanta-area spas before police arrested and charged a white man, officials investigating the case said the incident does not appear to be a hate crime. Many people of color and others disagreed, viewing it as a crescendo of a year-long wave of racist violence.

Multiple studies and the lived experience of many Black people, in particular, dispute such claims.

Opinion: If Derek Chauvin is acquitted, the three other cases could collapse

An analysis of data from the Washington Post published in 2019 found that while Black Americans comprise just 13% of the U.S. population, they account for 36% of unarmed police shooting victims. Black Americans are 3.23 times more likely than white Americans to be killed by police, according to a study of nearly 5,500 police-related deaths between 2013 and 2017 published by Harvard researchers in June 2020.

“The data are very clear. Any prospective juror who says, ‘Yes, I believe race has the potential to influence how individuals are treated,’ is absolutely right,” said Sommers. “If that’s going to be grounds for removing someone from the jury, that’s a problem.”

The jury’s racial makeup will likely will be more varied than Minnesota

Thirteen jurors, five men and eight women, have been selected so far for Chauvin’s trial. Seven of the jurors identify as white, two as multiracial and four as Black, according to the court.

The racial makeup of the jury likely will be more varied than the Minnesota as a whole, Hennepin County, or Minneapolis. According to mid-2019 U.S. Census data, Hennepin County was 74.2% white-alone, Minneapolis was 63.6% white-alone and Minnesota was 83.8% white-alone.

Months ago, the court sent a 13-page questionnaire to people in the jury pool asking their opinions on various subjects, including: whether police officers are more likely to use force against people of color, whether people of color receive equal treatment in the criminal justice system, whether police in their community make them feel safe, and how they feel about the Black Lives Matter and Blue Lives Matter movements.

Attorneys for the defense and prosecution have prodded potential jurors to expand on their answers and explain their reasoning. That has spurred some lengthy conversations about their experiences with police and discrimination.

More: 30 years after Rodney King, Derek Chauvin trial is ‘like reliving history’ for lawmakers, lawyers, activists and others who were there

On Thursday afternoon, one man said he didn’t believe Black and white people are treated equally in the criminal justice system. Nelson asked if the man believed an incident in which police stop a person of color is more likely to end “tragically.” The man said yes.

He also said he would not believe a police officer’s testimony. The judge excused him from the jury.

Another juror, the executive director of a youth organization, wrote in his questionnaire that he “somewhat disagreed” police treat Black people and white people equally and that he “strongly agreed” media reports on police brutality against racial minorities are only the tip of the iceberg.

The defense used a peremptory challenge against him.

A veteran who appeared to be Black told the court he experiences racism on a daily basis. On his questionnaire, he “strongly agreed” Black people and white people aren’t equally treated by the criminal justice system and “strongly agreed” MPD is more likely to use force with Black people.

The defense used a peremptory strike against him.

Andrew Gordon, deputy director for community legal services at the Legal Rights Center in Minnesota, said the experiences that juror described are inextricably connected to him being a Black man. “To strike him for those reasons is tantamount to striking him because he is Black,” he said.

“You are eliminating opportunities to have individuals on that jury who have an appreciation of race and law enforcement interactions with race that could help inform truth-seeking,” Gordon said.

Jurors who react strongly to George Floyd video are ‘systematically struck’

Most, if not all, of the potential jurors who told the court they had a strong, emotional reaction to seeing the video of Floyd’s death were not seated on the jury, and most were dismissed by the judge because they said they couldn’t be impartial or because it would cause them trauma. Most people seated on the jury said they had seen at least portions of a video of the incident.

One juror who appeared to be a young Black woman, a single mother, told the court she “cried hearing him call for his mother during his last moments of life.”

“I can’t unsee the video, so I’m not able to set that part aside,” she said. “It’s still going to be traumatizing to me.”

The judge dismissed her.

Another woman, who appeared to be a person of color, said she had a strong emotional response to the video of Floyd’s death and struggled to speak in the courtroom Friday morning. She said the incident was “so close to home.”

“I think it’s too much,” she said. The judge dismissed her.

The video of Floyd’s death is upsetting for almost everyone who watches, but it is acutely traumatic for people of color, Black people in particular, because of the cumulative nature of trauma resulting from racism, according to Monnica Williams, a clinical psychologist and professor at the University of Ottawa in Canada, who studies African American mental health.

A protester carries a portrait of George Floyd during a protest march around the Hennepin County Government Center, Monday, March 15, 2021, in Minneapolis where the second week of jury selection continues in the trial for former Minneapolis police officer Derek Chauvin. Chauvin is charged with murder in the death of George Floyd during an arrest last may in Minneapolis.

A protester carries a portrait of George Floyd during a protest march around the Hennepin County Government Center, Monday, March 15, 2021, in Minneapolis where the second week of jury selection continues in the trial for former Minneapolis police officer Derek Chauvin. Chauvin is charged with murder in the death of George Floyd during an arrest last may in Minneapolis.

“You already have a layer of stress built into your genetic make up,” she said. “The more of these sorts of things that we’re exposed to the more likely a person is to have a traumatic reaction or full blown PTSD.”

Gordon said individuals who had a strong reaction to Floyd’s death are among those being “systematically struck.” This perpetuates the idea that jurors who identify with the fact that Floyd was killed by a white police officer because of their own racial identity can’t determine truth.

“Our common sense tells us we are able as human beings decipher truth even in the presence of bias,” he said. “That legal fiction reinforces a lot of the stereotypes, reinforces a lot of the racial animus, reinforces a lot of the indifference that you see built into the legal system.”

‘Do you want people on your jury that don’t think Black lives matter?’

In questioning, lawyers for the defense and prosecution often asked potential jurors to offer their thoughts on Black Lives Matter as an organization, the greater movement and the notion that Black lives matter, generally.

One potential juror, a former musician who identifies as Hispanic, told the court he has a favorable view of the Black Lives Matter movement because it “continues on the tradition of the civil rights movement.”

The defense used a peremptory challenge against the juror. The state followed with a Batson challenge, which claims a potential juror has been eliminated on the basis of sex, race, ethnicity or religion. The judge denied the challenge, saying there was a non-race-based rational for striking the juror, including the fact that his wife attended a protest.

Asking potential jurors about their participation in Black Lives Matter protests is an unfair question, Williams said.

“Why should you be eliminated from a jury if you think Black lives matter?” she said. “Do you want people on your jury that don’t think Black lives matter?”

Experts said it’s fairly easy to come up with a race-neutral explanation, even if the strike is motivated in part by race.

“That’s pretty hard to enforce,” Sommers said. “It’s a problem the legal system has wrestled with for very long time and continues to wrestle with.”

Another juror, a white woman in her 50s who works at a nonprofit and has interacted with the Minnesota attorney general, wrote on the questionnaire that she is “somewhat favorable” of Black Lives Matter.

“Excessive force against Blacks must stop, but not everyone working in the system is bad,” she told the court. “I think there’s inherent bias in the system.”

She was seated on the jury.

One juror, a Black woman in her 60s who used to work in marketing and has grandchildren, said she was not very familiar with Black Lives Matter as an organization but that she supports the idea that Black lives matter.

“I am Black and my life matters,” she said. She was also seated on the jury.

Attorneys for both sides and the judge asked all potential jurors if they can put their opinions aside and impartially judge the case based solely on the evidence presented in court. Sommers said the key question becomes whether the judge believes them and why.

“When is it that the judge is willing to take their statement at face value and when is the judge not willing?” asked Sommers.

Contributing: Kevin McCoy, USA TODAY; The Associated Press

Follow N’dea Yancey-Bragg on Twitter: @NdeaYanceyBragg

This article originally appeared on USA TODAY: Derek Chauvin trial: Defense attorney, experts differ on role of race





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