Confederate Flags and Jury Service

Last week a potential juror in York County, S.C. caused a bit of buzz when she appeared for jury duty wearing a confederate flag on her shirt along with the words, “If this flag offends you, you need a history lesson.”  The judge who qualified the jury panel Monday morning asked the juror about her shirt and asked her if she could be “fair and impartial” to both sides if selected for a case.  She responded that she could be fair and impartial, and was allowed to remain in the jury panel.

Later, during jury selection for a drug case, the public defender on the case made a motion to excuse the juror “for cause,” which was denied by the judge.  Although the defense lawyer was the only black trial participant, the court ruled that, because the juror stated she could be fair and impartial, the flag and accompanying message were not grounds for excusal “for cause.”  The defense used one of their strikes on the woman and removed her from the panel.  Ultimately the case ended up pleading out before trial, which means there is no possibility of an appeal based on the juror’s inclusion in the jury panel and this question will have to be decided by an appellate court another day.

Should the juror have been struck for cause?  Like the larger debate over the flag, it depends on who the decision maker is.  The general rule is that, if a juror states that they can be fair and impartial to both sides, and the court determines that they can be fair and impartial to both sides, they will remain on the jury panel.  Either side can then use a “peremptory strike” to keep them off the jury in their particular case.  If the court denies a strike for cause that the court should have granted, the defense uses a peremptory strike on the juror, and then the defense runs out of peremptory strikes as a result, there may be grounds for appeal.  But only if the case goes to trial and the defense loses – this particular case resulted in a guilty plea and so there are no grounds for appeal.

The question was whether the shirt that this juror wore was a clear enough indication that the juror could not be fair and impartial in this case despite stating that she would be fair and impartial.  If you are a white, privileged judge in a courtroom full of white participants (except for the lone public defender), the answer is apparently yes, she could be fair an impartial and we will take her word for it.

On the other hand, if you are a black defense attorney, if your client or any of your witnesses are people of color, or (ironically)  if you understand the history of the confederate flag, it would be clear that any person wearing the shirt in question should be removed for cause.  Consider the following, as viewed through the lens of a black defendant or a defendant who is represented by a black attorney:

  • Southern heritage, as expressed by the confederate flag, is a heritage of slavery – for most people, the flag does not represent Southern culture, food, crafts, or tradition apart from the South’s struggle to create a separate nation that preserved whites’ supremacy and right to own black people as slaves;
  • State’s rights, the focal point of the war between the North and the South, undeniably refers to the Southern States’ right to enslave the black race;
  • Confederate president Jefferson Davis stated that the labor of African slaves was indispensable to Southern prosperity, that these interests were imperiled by the election of Abraham Lincoln who was anti-slavery, and that the Southern States were driven to action by the threat of the end of slavery;
  • Confederate vice-president Alexander Stephens stated that the “immediate cause” of secession was disputes between the North and South about “the proper status of the negro in our form of civilization;”
  • Stephens went on to state that the Confederacy was founded “upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and normal condition;”
  • The Confederate Constitution was almost an identical copy of the United States Constitution except for the addition of a provision forbidding the passage of any “law denying or impairing the right of property in negro slaves;”
  • During the civil rights era, white supremacist groups and Southern states increasingly used the Confederate flag as a symbol of resistance to desegregation, and as a result it became further entrenched as a symbol of Jim Crow and a racist South; and
  • Today the flag is widely displayed as the symbol and rallying point for a variety of white supremacists and hate groups.

Maybe the juror understands the history of the flag and intended to offend persons of color.  Maybe she has no hostility towards people of color whatsoever.  Personally, I understand both sides.  I grew up in the south, but my family is from Ohio.  Many times I remember being picked on for my accent and the way we lived.  I spent a lot of time fishing and riding horses, which my cousins did not.  Growing up, the flag to me represented those things.  It was a symbol that I looked at that made me proud to be southern in a family that did not always understand me.

It’s easy as a child to avoid the history of the flag, but as an adult and as a conscientious human being, it’s impossible to overlook the hatred and racism it represents.  With that, the juror should have been removed for cause because of the likelihood that the shirt and message displayed reveals a bias against people of color and because of the unavoidable climate of tension and discord that it will create in the jury room.  At best, it is an unnecessary distraction from the facts in a case that involves the potential loss of a person’s freedom.

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