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Join Birdsall Law Offices S.C. for our 7th Annual Fundraiser Benefiting the Milwaukee Rescue Mission

Have you ever worried about where your next meal would come from? Or maybe where you and your children could stay during a cold winter night? Unfortunately, worrying about those things are normal to Milwaukee’s homeless population and homeless populations around the world.

Being that we are located in Milwaukee, Wisconsin, our firm seriously appreciates the work the Milwaukee Rescue Missions does for the homeless community. The Milwaukee Rescue Mission, if you are not familiar with it, provides homeless men, women, and children with emergency aid, such as food, shelter, and clothing, as well as long term assistance. The Mission has rehabilitation programs that include education, job training, addiction recovery, and life-skills classes. Additionally, the Milwaukee Rescue Mission provides at-risk children with a quality education through its Cross Trainers Academy and supports local families in need through other programs.

The Milwaukee Rescue Mission runs completely on private donations, and that is why we, as a law firm put on this fundraiser every year. It is a great way to give back to the community; a way to offer help in the present to give hope for the future. We hope that you too can give hope for the future and join us on Wednesday, September 12, 2018 from 5-7:30 pm at the Wisconsin Club in downtown Milwaukee.

To register for the fundraiser/silent auction and donate click here

To learn more about the Milwaukee Rescue Mission click here

The Black Defendant and the all White Jury: Maintaining Racial Hierarchy in a Post-Strauder America

Written By: Attorney Nicole Muller/ Associate Attorney Birdsall Law Offices, S.C.

Introduction

“It requires little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that state laws might be enacted or enforced to perpetuate the distinctions that had before existed.”[1]

As ominously foreshadowed by the Supreme Court in 1879,[2] current state and federal laws  and practices continuously present disadvantages to people of color. Distant from enslavement and the oppressive nature of the Jim Crow Era, individuals, courts, and politicians, blind to the discrepancies of this nation’s criminal justice system, erroneously believe that the black defendant enjoys the same rights as the white defendant. Ignoring the lack of racial representation and the presence of implicit bias in the courtroom, white judges sit in front of white prosecutors and instruct the white jury on how to handle the black defendant’s case. The black defendant is seldom given a jury that racially represents him or her, and this lack of representation is a product of case precedent, judicial reasoning, and discriminatory practices. In Wisconsin, these discriminatory practices take form in both state and federal jury pooling procedures. As such, the purpose of this article is to draw on the disproportional impact jury pooling practices have on black defendants in circuit and federal district courts in the state of Wisconsin.

While Part I provides a historical overview of racism in Wisconsin, Part II analyzes the impact federal jury pooling practices have on black defendants. In Wisconsin, there are two federal districts that employ the same jury pooling practices. In both the eastern and western districts of Wisconsin, federal courts generate a wheel of prospective jurors from voting records. This pooling practice fails to take into account the disproportionality of voting records, and as such, the wheel of jurors is systematically discriminatory and racially exclusive. Similarly to Part II, Part III dissects circuit courts’ jury pooling practices and the discrepancies that lie within a program that uses valid driver’s license lists to create a potential jury pool.

Part IV draws on the constitutional ramifications produced by both federal and circuit court jury pooling practices. In this section the racially discriminatory outcome of pooling practices will be analyzed under the fair cross section guarantee. Additionally, the Supreme Court’s continual reliance on colorblindness  will be used to explain why courts in Wisconsin and throughout the United States ignore the disproportional impact jury pooling has on African Americans. In light of the constitutional issues, Part VI advances the notion that due to the implicit bias of jury members, eliminating discriminatory pooling systems is not solely sufficient in abolishing racism in the courtroom.

      I.           No Jim Crow Laws, No Problem – The Historical Oppression of African Americans in Wisconsin

According to the 1850 census, 99.79 percent of Wisconsin’s population was white, making it the “most homogeneous state of the union.”[3] Despite the predominantly white population, Wisconsin congressmen and senators alike consistently opposed slavery expressing “[s]lavery degrades not the slave only, but all with whom it comes in contact.”[4] Regardless of the position of Wisconsin politicians, the attitudes of both the average Wisconsin citizen and the nation as a whole fostered racially disparate treatment.

By 1910, the majority of African Americans that lived in Wisconsin had migrated from southern states in hopes to escape segregation in the work place.[5] A large portion of black migrants had a background in industrial work, and therefore moved to areas in Wisconsin that offered this specific type of employment.[6] In 1960, the black population increased from 12,158 to 74,546; the majority of which domiciled in Milwaukee, Wisconsin due to the increase of industrial jobs and the lack of Jim Crow laws.[7] During the 1960’s and soon after, Milwaukee became “one of the most segregated cities in the nation,” and although there were no Jim Crow laws, a vast majority of the black population became subjected to the issues that plagued the southern states during the Civil Rights Era.[8] The socioeconomic impact of segregation not only adversely affected the economy of African American communities and African Americans alike, but also leaked into criminal justice system, poisoning judicial and prosecutorial practices in Wisconsin courts.

Very little case precedent addresses how race impacts the jury selection process as segregation in Wisconsin was historically based on housing practices[9] and societal prejudices. However, Wisconsin’s overall attitude on racial equality was clearly illustrated in the events following the landmark decision in Brown v. Board of Education.[10] In Brown, the Supreme Court held that segregation in public schools violated the Fourteenth Amendment to the United States Constitution.[11] As such, public schools across the nation were forced to integrate their education programs; however, it took the Milwaukee School System twenty-five years to curate a desegregation plan.[12] This example not only illustrates how long racial minorities in Wisconsin were unequally treated after the Brown decision came down, but also exemplifies the mindset of the State.

Societal prejudice historically influenced the action of State officials on a large scale; from education to housing, racial biases played a large part in disproportionately impacting Wisconsin’s African American population. This prejudice continues to have a negative impact, and has, unfortunately, managed to plague the criminal justice system and directly taint the practices surrounding both federal and state jury pooling practices.

   II.           Federal Jury Pooling in Wisconsin and the Depleted African American Voting Population

The constitutional right to a jury is so critical to the makeup of our country that the constitution mentions juries in four different sections.[13] Although individuals have constitutional rights to a jury, the pooling and selection of such juries are not always constitutionally executed. Both the eastern and western federal district courts of Wisconsin have jury pooling practices that raise constitutional concerns due to the disproportional impact they have on black criminal defendants. In order to guarantee a defendant’s constitutional right to an impartial jury, federal courts in Wisconsin have established a jury selection process wherein a “master jury wheel” is created.[14] The master jury wheel draws citizens from voter records every two years, and then names are randomly drawn to establish a pool of potential jurors.[15] Although this practice seems legitimate, fair, and on its face racially inclusive, it fails to consider the disenfranchisement conundrum.

a.      The Disenfranchisement Conundrum

The conundrum is simple: how can a jury pool established by voting records be impartial and racially inclusive when a significant percentage of minorities have been stripped of the right to vote. The right to vote, as eluded to in the Fifteenth Amendment,[16] is not to be denied or abridged. However, under the authority of the Fourteenth Amendment[17] and Richardson v. Ramirez[18] a population in the United States is stripped of their right to vote—a population composed of a majority of minorities.[19] This population, according to a 2016 study, is a rapidly increasing group of 6.1 million Americans.[20]

Table One. The Increase of the Disenfranchised Population.[21]

Felony disenfranchisement refers to the denial of voting rights to an individual or group of people who have committed a crime. Laws surrounding felony disenfranchisement vary by state, some states like Florida, Kentucky, and Mississippi strip all felons of their right to vote while serving their sentence and after completion of their sentence, while other states such as Vermont and Maine refuse to strip felons of their constitutional right to vote.[22]

Wisconsin felony disenfranchisement laws are not as strict as those seen in Florida and Kentucky, but, nonetheless, still impact the “impartial” jury pool selection process employed by federal courts in Wisconsin. Under Wis. Stat. § 6.03(1)(b), a Wisconsin resident who is convicted of treason, bribery, or a felony automatically loses his or her right to vote.[23] The right to vote, however, can be restored when the convicted felon completes his or her sentence.[24] Sentence, for statutory purposes, includes the successful completion of both imprisonment and any term of probation or extended release.[25] Pulling from data from the Wisconsin Department of Corrections, Bureau of Justice Statistics, the U.S. Bureau of the Census, and the Pew Foundation, a 2012 study out of the University of Minnesota concluded that disenfranchised African Americans made up 10.5 percent of the overall voting-age population in Wisconsin.[26]

Figure Two[27]

The black community in Wisconsin already makes up a small percentage of the overall voting-age population, so removing 10.5 percent of eligible voters further depletes the probability that a black individual will be selected for jury by a federal court.[28]

b.     Further Depleting the Pool- Wisconsin’s Confusion of Voter ID Requirements

In addition to the depleted pool of black voters caused by felony disenfranchisement, the number of black voters, according to a 2016 study composed by researchers at University of Wisconsin-Madison, is further decreased due to confusions over voter ID laws in Wisconsin.[29] This study focused on the 2016 presidential election, which is relevant to federal jury pooling as in 2018, both the eastern and western districts of Wisconsin will take voting records from the 2016 presidential election to generate names for their “master jury wheel.”[30]

In order to vote in Wisconsin, prospective voters are required to present a form of identification at the polling locations at the time of voting.[31] Forms of identifications that are acceptable range from Wisconsin issued driver licenses to U.S. issued passports.[32] Pulling data from Milwaukee and Dane counties, it was estimated that “17,000 Wisconsin voters were kept from the polls” due to confusions produced by strict voter ID laws. [33] Out of this percentage only “8.3 percent of white registrants were deterred, compared to 27.5 percent of African Americans.”[34]

It is clear that both felony disenfranchisement and voter ID laws in Wisconsin disproportionally impact the black Wisconsin population. Due to the reduced amount of minority voters in Wisconsin, it is statistically inferred that when the federal district courts in Wisconsin use voting records to pull names to generate jury pools, the majority of those individuals are going to be white—directly leading to the increased probability that a black defendant will be tried by an all white jury.

 III.           Wisconsin Circuit Court Jury Pooling and the Unlicensed Minority

In Wisconsin, having a valid drivers license will not only allow you to vote, but will also guarantee you a spot on state circuit courts’ jury pooling lists. Wisconsin circuit courts use Wisconsin Department of Transportation’s list of people with valid motor vehicle licenses in establishing a database for potential jurors.[35] Just like the federal pooling practice, this technique appears on its face to be systematically inclusive, however, pooling from license records generates a racially disproportional outcome as well.

In 2016, Wisconsin Department of Transportation reported that there were 4,250,018 licensed drivers in the state of Wisconsin.[36] Out of all licensed drivers, 790,836 of those licenses had expired.[37] Looking once again at Milwaukee and Dane counties, counties that have the highest low-income and minority demographics in the state of Wisconsin,[38] a good percentage of licensed drivers either had their licenses suspended or rendered expired. In Milwaukee County, there were 569,415 licensed drivers, out of which 157,796 were considered expired and subsequently invalid for purposes of jury pooling selection.[39] That means 27.7 percent of licensed drivers in Milwaukee County could not be considered for jury duty. Given 69.4 percent of Wisconsin’s African American population resides in Milwaukee County, the 27.7 percent of invalid licenses presents a serious problem for the fair outcome of the circuit court’s pooling practices.[40]

In addition to those who simply cannot afford the costs of a license, African Americans living in Milwaukee County are continuously subjected to having their license privileges suspended or revoked. After studying majority minority neighborhoods in Milwaukee, John Pawasarat, a research professor at University of Wisconsin-Milwaukee, found that the failure to pay simple tickets can lead to losing licensing privileges for two years.[41] In fact, fifty-six percent of all license suspensions in the state of Wisconsin occur due to the failure to pay municipal violation citations.[42]Additionally, in those same neighborhoods, it was recorded that “two out of three African American men . . . do not have a driver’s license.”[43] Recognizing the issue plaguing Milwaukee’s community, Jim Gramling, a former Milwaukee County municipal court judge, started the Center for Driver’s License Recovery and Employability.[44] Statistics from the Center for Driver’s License Recovery prove that the issues surrounding license suspension is not a community wide issue, but rather an issue directly impacting African Americans. From July 1, 2016, to June 30, 2017, eighty-four percent of people assisted by the Center were African American, where only four percent were white.[45] Clearly, white individuals are not having their licenses revoked or suspended at the same rate as African Americans. So, although pooling from valid driver’s license lists appears to be more inclusive than voting records, the truth is it is just as racially exclusive.

 IV.           Constitutional Ramifications: The Judicial Reinforcement of Colorblindness and the Subsequent Failure to Extend the Fair Cross Section Guarantee

As it has been established, jury pooling practices in Wisconsin inadequately account for the African American population[46]—so what’s the big deal? The big deal is that black criminal defendants, like white defendants, are constitutionally granted the right to an impartial jury.[47] Under 28 U.S.C.S. § 1861, in order to preserve an individual’s right to an impartial jury, juries must be “selected at random from a fair cross section of the community.”[48] However, this statutory provision is often overlooked by the judicial reinforcement of colorblindness.

Colorblindness, in its essence, is a term coined to describe the act of “ignoring race without eradicating racism.”[49] This notion that race should be ignored has historically leaked into courtrooms and into laws created by Congress and legislatures around America. Perhaps the most detrimental use of colorblindness, has been illustrated through centuries of Supreme Court precedent. The judiciary’s first elaboration of colorblindness can be found in Plessy v. Ferguson, wherein Justice Harlan, in his dissent, refers to the Constitution as being colorblind.[50] In this distinction, Harlan focuses on how certain races within society will think themselves dominant, and how this distinction of racial supremacy “will continue to be for all time,” but that this idea does not transcend into the jurisprudence of constitutional law.[51] Unfortunately, applying colorblindness to both the Constitution and subsequently enacted laws has ultimately led to the protection and furtherance of racism in America.

The Court’s persistence in defending and applying colorblindness gives way to the delusional concept that the composite race of a jury would have no unconstitutional impact on a defendant. This underlying concept is illustrated by the Supreme Court’s continual admittance that individuals do not have a constitutional right to be tried by a jury representative of his or her race, but rather have the right that people of the same race are not systematically excluded from jury selection.[52] It is important to note that although the impartiality right belongs to the defendant, excluding a juror on a basis of race is a not a deprivation of the defendant’s Fourteenth Amendment rights, but rather the Juror’s right to be equally treated under the law—the focus is on the jury opposed to the defendant. If the Court was actually concerned by the impact a biased jury could have on a defendant, it would have extended the impartiality requirement to the final jury panel—an extension that would and could have been supported by the text of the Sixth Amendment.[53]  By not extending the impartiality requirement to a final jury panel, which would grant a criminal defendant the right to be tried by a jury represented by a fair cross section of the community, the Court is assuming a jury is colorblind—a fact we all know to be false. In fact, this idea that racism does not transcend into a final jury panel is directly contradicted by the underlying purpose of an impartial jury that being a defendant’s right to be free from a biased verdict.

The jury selection is not complex, however an understanding of the structure is necessary for knowing when and where to apply the impartiality requirement. Identical to federal practices in Wisconsin, Wisconsin circuit courts follow the following jury selection process:

(1)  After names are randomly selected and the prospective jury pool shows up to court, jurors are sworn to answer truthfully all questions about their qualifications;

(2)  The next step is referred to voir dire, wherein the judge asks potential jurors a series of questions;

(3)  After voir dire concludes, venire begins, and the judge excuses a limited number of jurors. The lawyer may also excuse additional jurors who the lawyer may think may not be impartial in the case; and

(4)  Finally, the final jury panel is then selected and sworn to fairly and impartially decide the case. [54]

The impartiality requirement only applies to the first, second, and third step, leaving room for the final jury panel to be racially exclusive and as a result partial to the outcome of a case. In Batson v. Kentucky, the prosecution struck all black individuals during venire, leading to the outcome of an all white jury.[55] The defendant, a black male, appealed his conviction on the grounds that the prosecution’s actions had deprived him of his Sixth Amendment right to a jury drawn from a cross section of the community.[56] The Supreme Court, in Batson v. Kentucky, held that “selection procedures that purposefully exclude black persons from juries undermine the public confidence in the fairness of our justice system.”[57] Drawing on Strauder v. West Virginia,[58] the Court in Batson held that the “[e]xclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure.”[59] As such, the Court not only found that the black jurors’ Fourteenth Amendment rights were violated, but also found that because Batson was denied an impartial jury, the state violated the defendant’s Sixth Amendment rights.[60]

In order to cure the evil of racial discrimination in the jury selection process, Congress enacted 28 U.S.C.S. § 1861 to ensure that the jury selection process remained racially impartial and inclusive. As previously mentioned, in order for a jury to be impartial, it must be selected from a fair cross section of the community “in the district or division wherein the court convenes.”[61] In light of Batson and 28 U.S.C.S. § 1861, the Supreme Court established a three-prong test when determining whether an individual was denied his or her Sixth Amendment right to an impartial jury. As applied in Duren v. Missouri,[62] a defendant must prove the following three things to successfully establish a violation of the fair cross section requirement: (1) “that a distinctive group in the community was excluded;” (2) “that representation of the group in venires from which juries are selected is unfair and unreasonable in relation to the group’s numbers in the community;” and (3) “ that the underrepresentation is due to a systematic exclusion of the group.”[63]

Federal courts’ creation of a jury wheel based on voting records and Wisconsin Circuit courts’ dependence on license records to create a jury pool are both subject to the Duren test.[64] Wisconsin jury pooling practices have been challenged before, but no defendant has been successful on getting past the third prong. In State v. Wakeman, a Native American defendant argued that Native Americans were systematically excluded from the jury panel as it was less likely they had driver’s licenses.[65] The court in Wakeman concluded that the defendant failed to show systematic error as she had no data and subsequently could not show that Native Americans had been systematically excluded from juries over time.[66] The third prong also failed to be satisfied in State v. Jackson,[67] where an African American defendant claimed that all minorities were systematically excluded based on voting records in Racine County, Wisconsin. The Jackson court, like in Wakeman, asserted that the defendant failed to satisfy the third prong as he did not show any statistical data that proved his point.[68]

Looking to federal jury pooling practices in Wisconsin,[69] jury selection processes using lists of actual voters is constitutional only where there was no showing that blacks voted in lower proportion to whites.[70] Blacks are usually going to vote in lower proportion to whites. As touched on earlier, black individuals are automatically disadvantaged due to the impact felony disenfranchisement has on voting turnout.[71] In addition to the lowered voting turnout as a product of felony disenfranchisement, voter ID laws in Wisconsin further reduce the black vote.[72] In 2016, 27.5 percent of African Americans were deterred from voting due to the disproportional impact of voter ID requirements; only 8.3 percent of whites were deterred.[73] Without ignoring this systematic oppression, there is no denying that pooling jurors from voting records discriminates against African Americans. In a country where the African American race has been so heavily oppressed, it is appalling that federal courts in Wisconsin choose to employ a practice that directly goes against what both the Sixth and Fourteenth Amendments solely try to avoid—a biased jury and unequal treatment under the law. The use of voting records for jury selection not only weeds out a good majority of the minority population, but it also fails to produce a fair cross section of the community. How can something be a fair representation of a community, when laws and practices are in place that systematically “removes” a large portion of a group outside of the pooling sample—it cannot.

From Wakeman and Jackson it is clear that Wisconsin courts need statistical data and a showing of historical systematic exclusion in order for an individual to successfully claim that jury selection practices are unconstitutional. However, showing historical systematic exclusion is not necessary pursuant to Supreme Court standards. It is simple; based on the information provided in sections II and III, both the federal courts’ and Wisconsin circuit courts’ methods of jury selection do not satisfy the Duren test as: (1) they exclude the African American group within the Wisconsin community; (2) the representation of African Americans in venires from which final jury panels are selected is unfair and unreasonable in relation to the overall African American population in the community; and (3) the underrepresentation of African Americans is due to both a historical and systematic exclusion of the group.

   V.           The All White Jury and the Racist Verdict: Implicit Bias and the Presence of Societal Racism in Wisconsin Courtrooms

“The one place where a man out to get a square deal is a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into a jury box, and as you grow older, you’ll see white men cheat black men everyday of your life.”[74]

The Sixth Amendment is in place as it was foreseen that a biased jury could be detrimental to the just outcome of a case. Although Supreme Court precedent is aimed at protecting an individual from this harm, laws only go so far as to reduce the amount of bias in the selection process, and have yet to extend to protect the criminal defendant from racially discriminatory jury verdicts.[75] Although there is a psychological element to being the only black person in a courtroom, there is something inherently upsetting about the notion of a panel of white people determining the outcome of a black defendant. Be it the historical pattern of the white man dictating the black man’s freedom, or how African Americans have had to continuously fight for their rights, jury pooling practices in Wisconsin produce outcomes that are hard to stomach. These outcomes include the increased opportunity for the use of implicit bias in determining an unduly harsh sentence, and the opportunity for an all white jury to return a verdict based on the color of the defendant’s skin opposed to the merits of the case.

Although the fair cross section guarantee is in place to ensure a racially inclusive jury pool, there is nothing in place to eradicate the taint of racism of an all white jury. In courtrooms across America there are two potential sources that can adversely affect the black defendant: explicit and implicit bias.[76] Scholars and Researchers alike have defined implicit bias as “discriminatory biases based on either implicit attitudes [and/or] feelings that one has about a particular group, or implicit stereotypes and traits that one associates with a particular group.”[77] Jurors are not holy people who do not have implicit bias, in fact, Supreme Court Justices have offered evidence and testimony that the juror is likely to bring his or her implicit bias in the courtroom, and that their bias can adversely influence a verdict.[78]

Because African Americans are “stereotypically linked to crime and violence,”[79] it is crucial that courts dissolve any implicit bias that could detrimentally impact a black defendant’s liberties. The dissipation of implicit bias is especially critical in areas where there is a historical prejudice against African Americans. In an attempt to resolve the issue of implicit bias amongst jurors, the Supreme Court in Ham v. South Carolina, reversed a conviction where the judge refused to ask jurors about their racial prejudice.[80] In Ham, the defendant, a black civil rights activist,  had been charged with possession of marijuana and subsequently found guilty despite the strong defense that the drugs had been planted evidence.[81] Given the defendants activist role in a predominantly white neighborhood, the defense requested, prior to voir dire, that the judge ask the following questions: (1) “[w]ould you fairly try this case on the basis of the evidence and disregarding the defendant’s rave;” and (2) “[y]ou have no prejudice against negroes? Against black people? You would not be influenced by the use of the term ‘black’.”[82] The trial court judge refused to ask these questions, however, the Supreme Court argued that this refusal to make an inquiry as to the racial bias of the jurors was a violation of the defendant’s Fourteenth Amendment right to due process.[83]

Employing these type of questions assists in reducing the overall bias of a jury; however, as noted by Justice Scalia, a juror seldom realizes his or her own implicit biases as this type of bias nests in an individual’s subconscious.[84] Because people seldom acknowledge their own implicit bias, having a racially representative final jury panel becomes necessary to resolve issues of racism. Regardless, asking these type of questions can do no harm, and can only help lead to a more just outcome for black defendants. Because the fair cross section requirement does not extend to the final jury panel, asking these type of questions in Wisconsin courts will help repair the irreparable harm caused by systematically exclusive jury pooling practices. Specifically in Milwaukee, Wisconsin, the judicial inquiry of implicit bias present in jurors should become a common practice. Like in Ham where the defendant lived in a predominantly white area, Milwaukee and southeastern Wisconsin are predominantly white areas. Based on societal deprivations such as limited access to education and housing, the African American population in Wisconsin has historically been deemed inferior to the white Wisconsin population.[85] The Supreme Court in Ham made it clear that when there is a probability that a group in the community is widely prejudiced, judges should ask jurors questions regarding their implicit bias to a group.[86] Due to the societal prejudice towards African Americans in Wisconsin, the implicit bias of potential juries must be questioned in order to provide a fair outcome for the Black defendant.

Conclusion

There can be no denial that laws of and practices within the criminal justice system produce a disproportionate outcome for African Americans. These laws and practices are not limited to jury pooling practices illustrated within this article, but also extend to sentencing procedures, certain criminal offenses, cash-bail programs, felony disenfranchisement, voting laws, and more; the list is quite honestly infinite. Although these laws and practices on their faces are racially neutral, they fail to account for the historical oppression of the African American Race; they ignore the black man’s struggle to elevate himself to the level of his white counterpart; they perhaps, unintentionally, maintain racial hierarchy in America. Jury Pooling practices are not immune to these issues, and it is clear that jury pooling practices in Wisconsin do not take into account the historical and modern-day oppression of the Wisconsin African American community. As a result, final jury panels in Wisconsin are more likely to convict a defendant due to implicit bias rather than the merits of a case, and subsequent to racially produced verdicts, courts may impose unduly harsh sentences. The use of implicit bias in returning verdicts and the imposition of an unduly harsh sentences directly leads to the cycle of African American incarceration and oppression. Opposed to acknowledging the fact that pooling from voting records and license databases are inherently going to produce a low amount of African Americans due to systematic oppression and exclusion, both Wisconsin courts and the Supreme Court would rather focus on whether a defendant can satisfy a three-prong test—a test that has proven hard to overcome.

This issue, however unfortunate, is not surprising. The notion that laws and practices today are created to further disadvantage the African American race is not a novel idea. Although scholars and activist such as Michelle Alexander[87] argue that contemporary laws, in practice, enslave African Americans in the form of imprisonment, the Supreme Court ominously predicted this outcome in 1879.[88] The Court warned us that after the enslavement of African Americans ended, laws would be enacted to perpetuate the racial distinctions that historically existed during an era of enslavement.[89] As such, until racism is eradicated and no race holds itself superior, the black defendant will succumb to the verdict of an all white jury and the African American race will never be truly free.

ENDNOTES

[1] Strauder v. West Virginia, 100 U.S. 303, 306 (1879).

[2] Id.

[3] Anthony Baker, With One Voice: Wisconsin’s Legislative Contribution to the National Slavery Debate 1848 to 1861, 1998 Wis. L. Rev. 777, 779 (1998).

[4] Id. at 786.

[5] Wisconsin Department of Health, African Americans in Wisconsin—History (Nov. 25, 2017, 9:08am) https://www.dhs.wisconsin.gov/minority-health/population/afriamer-pophistory.htm.

[6] Id.

[7] Id.

[8] Id.

[9] Wisconsin Historical Society, Black History in Wisconsin (Nov. 25, 9:23am) https://www.wisconsinhistory.org/Records/Article/CS502#rights.

[10] 347 U.S. 483 (1954).

[11] Id. at 493.

[12] Wisconsin Department of Health Services, supra note 5.

[13] See U.S. Const. Art. III Sec. 2 (“The trial of all crimes, except in cases of impeachment, shall be by jury. . . .”) ; U.S. Const. Amend. V (“No person shall be held to answer for capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury. . . .”); U.S. Const. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .”); U.S. Const. Amend. VII (“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. . . .”).

[14] Steven Dries, Public Notice for Public Draw (Nov. 25, 2017, 6:28pm) http://www.wied.uscourts.gov/public-notice-random-draw.

[15] Id.

[16] U.S. Const. Amend. XV, Sec. I (“The right of citizens of the United States to vote shall not be denied or abridges by the United States or by any State on account of race, color, or previous condition of servitude.”).

[17] U.S. Const. Amend. XIV, Sec. II ( interpreted to stand for the notion that an individual’s right to vote can be denied when he or she has taken part in “rebellion” or any “other crime.”).

[18] 418 U.S. 24 (1974) (holding that felony disenfranchisement is constitutionally permissible under section two of the Fourteenth Amendment.).

[19] Christopher Uggen, Ryan Larson, and Sarah Shannon, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement (Nov. 25, 2017, 2:32pm) http://www.sentencingproject.org/publications/6-million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/ (“Over 7.4 percent of the adult African American population is disenfranchised compared to 1.8 percent of the non-African American population.”).

[20] Id.

[21] Id.

[22] Id. ( A total of twelve states completely disenfranchise felons: Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Nebraska, Nevada, Tennessee, Virginia, and Wyoming.)

[23] Wis. Stat. § 6.03(1)(b) (“The following persons shall not be allowed to vote in any election and any attempt to vote shall be rejected: . . . Any person convicted of treason, felony or bribery, unless the person’s right to vote is restored.”).

[24] Wis. Stat. § 304.078(3) (“If a person is disqualified from voting under s. 6.03(1)(b), his or her right to vote is restored when he or she completes the term of imprisonment or probation for the crime that led to the disqualification. . . .”).

[25] Id.

[26] Christopher Uggen and Suzy McElrath, Report on Felon Disenfranchisement in Wisconsin, 4 (Nov. 26, 2017, 9:35am) http://users.soc.umn.edu/~uggen/WIReport_2010.pdf.

[27] Id. at 3.

[28] See Lois Quinn and John Pawasarat, Statewide Imprisonment of Black Men in Wisconsin, 3 (Nov. 26, 2017, 9:44am) http://www4.uwm.edu/eti/2014/WisconsinStudy.pdf.

[29] See generally Kenneth Mayer and Michael DeCrescenzo, Supporting Information: Estimating the Effect of Voter ID on Nonvoters in Wisconsin in the 2016 Presidential Election, (Nov. 26, 2017, 10:12am) https://elections.wisc.edu/news/voter-id-study/Voter-ID-Study-Supporting-Info.pdf.

[30] supra note 14.

[31] See Wisconsin Elections Commission, Photo ID Required After April 2015, (Nov. 26, 2017, 10:55am) http://elections.wi.gov/node/3580.

[32] Wisconsin Elections Commissions, Bring it to the Ballot (Nov. 26, 2017, 11:01am) https://www.bringitwisconsin.com/frequently-asked-questions (“The following are all acceptable forms of identification: a Wisconsin DOT-issued driver license, even if driving privileges are revoked or suspended; a Wisconsin DOT-issued identification card; military ID card issued by a U.S. uniformed service; a U.S. passport; an identification card issued by a federally recognized Indian tribe in Wisconsin; a photo identification card issued by a Wisconsin accredited university or college that contains date of issuance, signature of student, and an expiration date no later than two years after date of issuance—the university or college ID must be accompanied by a separate document that proves enrollment.”).

[33] Michael Wines, Wisconsin Strict ID Law Discouraged Voters, Study Finds (Nov. 26, 2017, 11:09am) https://www.nytimes.com/2017/09/25/us/wisconsin-voters.html (citing Kenneth Mayer and Michael DeCrescenzo, Release: Estimating the Effect of Voter ID on Nonvoters in Wisconsin in the 2016 Presidential Election, https://elections.wisc.edu/news/voter-id-study/Voter-ID-Study-Release.pdf.

[34] Kenneth Mayer and Michael DeCrescenzo, Release: Estimating the Effect of Voter ID on Nonvoters in Wisconsin in the 2016 Presidential Election (Nov. 26, 2017, 11:22am) https://elections.wisc.edu/news/voter-id-study/Voter-ID-Study-Release.pdf.

[35] Wisconsin Courts, For Jurors: General Information (Nov. 26, 2017, 1:11pm) https://www.wicourts.gov/services/juror/faqs.htm.

[36] Wisconsin Department of Transportation, Facts & Figures 2016, 44 (Nov. 26, 1:55pm) http://wisconsindot.gov/Documents/about-wisdot/newsroom/statistics/factsfig/2016ff.pdf.

[37] Id.

[38] Wisconsin Department of Health Services, African Americans in Wisconsin – Overview (Nov. 26, 2017, 2:03pm) https://www.dhs.wisconsin.gov/minority-health/population/afriamer-pop.htm (“Nearly 90 percent of Wisconsin’s African American Population lives in the following six counties, all of which are located in Southeastern or Southern Wisconsin: Milwaukee, Dane, Racine, Kenosha, Rock, and Waukesha. When looking at African Americans as a percent of the total county population, Milwaukee County tops this list, with 25.6 percent.”).

[39] Wisconsin Department of Transportation, supra note 36.

[40] Wisconsin Department of Helath Services, supra note 38.

[41] Joseph Shapiro, How Driver’s License Suspensions Unfairly Target the Poor (Nov. 26, 2017, 2:26pm) https://www.npr.org/2015/01/05/372691918/how-drivers-license-suspensions-unfairly-target-the-poor.

[42] Id.

[43] Id.

[44] Id.

[45] Jim Gramling, founder of the Center, emailed me the exact Statistics on December 12, 2017, at 1:51pm.

[46] See supra Sections II and III.

[47] U.S. Const. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .”).

[48] 28 U.S.C.S. §1861.

[49] Marissa Jackson, Neo-Colonialism, Same Old Racism: A Critical Analysis of the United States’ Shift Toward Colorblindness as a Tool for the Protection of the American Colonial Empire and White Supremacy, 11 Berkeley J. Afr. –Am. L. & Pol’y 156, 166 (2009).

[50] Casebook, pg. 64 (citing Plessy v. Ferguson, 163 U.S. 537 (1896)).

[51] Id.

[52] See generally Strauder v. West Virginia, 100 U.S.. 303 (1879) (States cannot deny jurors the right to participate in the jury selection process on account of their race.); Hernandez v. Texas, 347 U.S. 475 (1954) (Mexican Americans are not entitled to be tried by a jury composed of racially similar jurors, rather the right that people of the same race are not systematically excluded from jury selection.); Batson v. Kentucky, 476 U.S. 79 (1986) (people cannot be systematically excluded from the jury selection process on account of their race.).

[53] See U.S. Const. Amend. VI. The Sixth Amendment does not use language such as “ the accused shall enjoy the right to a speedy and public trial by a jury that was impartially selected,” but rather states that “the accused shall enjoy the right to a speedy trial, by an impartial jury . . . .”).

[54] Wisconsin Courts, The Wisconsin Jury Handbook, 5 (Dec. 2, 2017, 1:08pm) https://www.wicourts.gov/services/juror/docs/handbook.pdf.

[55] 476 U.S. 79, 82 (1986).

[56] Id.

[57] Id. at 87.

[58] 100 U.S.. 303 (1879)

[59] Batson, supra note 55 at 84.

[60] Id.

[61] supra note 48.

[62] 439 U.S. 357, 364 (1979).

[63] Id. at 231 (citing United States v. Garcia, 991 F.2d 489, 491 (8th Cir. 1993)).

[64] See Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (“[J]ury wheels, pools or names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community.”).

[65] 757 N.W.2d 850 ( Wis. Ct. App. 2008).

[66] Id.

[67] 538 N.W.2d 859 (Wis. Ct. App. 1995).

[68] Id.

[69] See, supra Section II.

[70] United States v. Bennett, 539 F2d 45, 55 (10th Cir. 1976).

[71] See, supra Section II (a).

[72] See, supra Section II (b)

[73] supra note 22.

[74] Ashok Chandran, Color in the “Black Box”: Addressing Racism in Juror Deliberations, 5 Colum. J. Race & L. 28, 29 (2014) (quoting Harper Lee’s To Kill a Mockingbird).

[75] Wisconsin Courts also aim at reducing the harm caused by a racially prejudiced jury by protecting the rights of potential jurors; see State v. Guerra-Reyna, 549 N.W.2d 779, 780 (Wis. Ct. App. 1996) (“[A] prospective juror [cannot be removed] from the jury panel because of the prospective juror’s race or membership in a ‘cognizable’ class; denying a person participation in jury service on account of race or membership in a cognizable class unconstitutionally discriminates against the excluded juror.”).

[76] Jeffrey Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195, 1196-97 (2009).

[77] Anthony Greenwald & Linda Krieger, Implicit Bias: Scientific Foundations, 94 Calif. L. Rev. 945, 948-51 (2006).

[78] See Turner v. Murray, 476 U.S. 28, 42 (1986) (Brennan J., dissenting (“ [I]t is certainly true, as the Court maintains, that racial bias inclines one to disbelieve and disfavor the object of the prejudice, and it is similarly incontestable that subconscious, as well as express, racial fears and hatred operate to deny fairness to the person despised; that is why we seek to insure that the right to an impartial jury is a meaningful right . . . .”);

[79] Anna Roberts, Reforming the Jury: Detection and Disinfection of Implicit Juror Bias, 44 Conn. L. Rev. 827, 833 (2012).

[80] 409 U.S. 524, 529 (1973).

[81] Id. at 524.

[82] Id. at 525, n. 2.

[83] Id. at 527.

[84] J.E.B. v. Alabama, 511 U.S. 127, 162 (1994) (Scalia, J., dissenting) (“The biases that go along with group characteristics tend to be biases that the juror himself does not perceive, so that it is no use asking about them.”).

[85] See, supra Section I.

[86] supra note 83.

[87] Author of “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.” Alexander’s thesis is that although laws on their face appear to be racially neutral, they discriminate against minorities and directly lead to the mass incarceration of the African American race.

[88] supra note 1.

[89] Id.

The Legal Defense Show – 4/7/18

Birdsallonair

Legal Defense is back on 101.5 FM WHBL Sheboygan!

With a new week, comes a new episode of Legal Defense! This time John and Kirk discuss issues pertaining to JAG jury selection processes, Wisconsin Supreme Court Elections and the role of judges, and the compensation rate for appointed counsel. Additionally, Attorney John Birdsall discusses the current petition in front of the Wisconsin Supreme Court that deals with increasing the compensation rate for appointed defenders.

Don’t forget to tune in next week for another episode of Legal Defense! You can find all episodes, old and new, right here on our website: www.birdsall-law.com/legal-blog.

The Legal Defense Show – 1/27/18

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Legal Defense is back on 101.5 FM WHBL Sheboygan!

With a new week, comes a new episode of Legal Defense!  Attorney John Birdsall is coming to you from the Big Apple! While on a business trip in New York City, Attorney Birdsall discusses  a political corruption trial that is currently being held in the Southern District of New York. Additionally, Attorney Birdsall discusses the controversies surrounding a criminal death penalty case in Louisiana wherein the defense attorney admitted his client’s guilt. In discussing the Louisiana case, Attorney Birdsall addresses issues criminal defense attorneys face when representing mentally diminished clients.

To listen to this show please visit: http://wifc.com/podcasts/legal-defense/145/legal-defense-show-1-27-18/

Don’t forget to tune in next week for another episode of Legal Defense! You can find all episodes, old and new, right here on our website: www.birdsall-law.com/legal-blog.

 

The Legal Defense Show – 1/13/18

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Legal Defense is back on 101.5 FM WHBL Sheboygan!

With a new week, comes a new episode of Legal Defense!  Attorneys Kirk Obear and John Birdsall are back again with a new show full of controversy, Oprah, and pizza. First the dynamic duo discuss the controversies surrounding Michael Wolff’s book “Fire and Fury: Inside the Trump White House.”In discussion the purpose of the book, Attorneys Kirk and John remind listeners that the book is night offered for the truth of the statements, but rather for the truth that people said those statements. After discussing at length the beauty of New York City pizza, Kirk and John dissect the political persuasion power of Oprah and how celebrity fame leads to winning presidential elections.

Don’t forget to tune in next week for another episode of Legal Defense! You can find all episodes, old and new, right here on our website: www.birdsall-law.com/legal-blog.

To listen to this show visit: http://wifc.com/podcasts/legal-defense/145/legal-defense-show-1-13-18/

The Legal Defense Show – 1/6/18

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Legal Defense is back on 101.5 FM WHBL Sheboygan!

With a new week, comes a new episode of Legal Defense!  Attorney John Birdsall discusses a new Supreme Court case that addresses searches and seizures of rental vehicles. Additionally Attorney Birdsall will dissect a motion brought by Paul Manafort, which attacks Robert Mueller’s authority to investigate Russia’s involvement in the 2016 presidential election.

Don’t forget to tune in next week for another episode of Legal Defense! You can find all episodes, old and new, right here on our website: www.birdsall-law.com/legal-blog.

The Legal Defense Show – 7/22/17

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Legal Defense is back on 101.5 FM WHBL Sheboygan!

With a new week, comes a new episode of Legal Defense!  John and his law clerk, Nicole Muller, discuss the current controversies surrounding Jeff Sessions’ new asset forfeiture directive and the constitutional implications of such. In addition to exploring the underlying success and failure of cash bail programs, both John and Nicole dissect the new jailhouse snitch laws out of Texas.

Don’t forget to tune in next week for another episode of Legal Defense! You can find all episodes, old and new, right here on our website: www.birdsall-law.com/legal-blog.

The Legal Defense Show – 5/20/17

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Legal Defense is back on 101.5 FM WHBL Sheboygan!

With a new week, comes a new episode of Legal Defense!  John and Kirk discuss the controversies around jury nullification and a case that deals with an attorney who, in his closing statement, hinted at jury nullification.

Don’t forget to tune in next week for another episode of Legal Defense! You can find all episodes, old and new, right here on our website: www.birdsall-law.com/legal-blog.

The Legal Defense Show – 2/25/17

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Legal Defense is back on 101.5 FM WHBL Sheboygan!

With a new week, comes a new episode of Legal Defense!  John and Kirk discuss a recent Supreme Court case that reversed a conviction where the defense attorneys presented evidence that because their client was black, he was more like to re-offend,  and an ACLU lawsuit against the Milwaukee Police Department claiming that police are routinely violating the Fourth Amendment by stopping persons of color without cause akin to New York City’s “stop and frisk” policy that was found unconstitutional.

Don’t forget to tune in next week for another episode of Legal Defense! You can find all episodes, old and new, right here on our website: www.birdsall-law.com/legal-blog.

The Legal Defense Show – 2/11/17

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Legal Defense is back on 101.5 FM WHBL Sheboygan!

With a new administration, comes a new episode of Legal Defense!  John is solo today and discusses President Trump’s tough on crime agenda, his manipulation of FBI crime data, the role of police in a free society in the age of Trump, the roles of the three branches of government especially in relation to crime policy, the implications of the Muslim ban – legal and otherwise, the potential dismantling of federal “consent decrees” that seek to reform corrupt local police departments, and the proposed massive increase in ICE agents and an executive order to give them carte blanche to detain people.

Don’t forget to tune in next week for another episode of Legal Defense! You can find all episodes, old and new, right here on our website: www.birdsall-law.com/legal-blog.