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With racists still walking this earth, criminal defendants should have the sole and absolute right to waive a jury trial

Aug 08, 2011 With racists still walking this earth, criminal defendants should have the sole and absolute right to waive a jury trial

When my eighth grade social studies class in 1977 focused on oppression of African-Americans from slavery to segregation, it felt to me like a problem heavily relegated to the South and the past. I knew adults and youths in my native Fairfield, Connecticut who would say racist and disparaging things about African-Americans and other people of color, but was optimistic that their views were dwarfed by progress.

Then again, it was doubtlessly a mere coincidence that the public schools I attended had few non-white people in attendance, which was a reflection on the town’s population, regardless of how much of that had to do with the higher home prices in the town, and any past or ongoing racism by home sellers, real estate agents and mortgage lenders.

Deeply-held racist views went well beyond the South to my own geographical backyard in New England and beyond, even though the racism was more vocal and official in the South through the shameful official segregation that continued right into the 1960’s.

When I relocated to Arlington, Virginia to attend law school in 1986, at first blush Arlington seemed more of a suburb of neighboring Washington, D.C., than part of the cradle of the Confederacy. However, that image changed when I got onto [Robert E.] Lee Highway to go to the grocery store, saw the stars and bars gracing vehicles and other places farther away in Virginia, later found a Confederate soldier statue standing guard outside the Loudoun County courthouse in northern Virginia, without a Martin Luther King, Jr., statue or anything else nearby the statue to promote a color-blind justice system, and found other symbols of the Confederacy and the segregationist South at other Virginia courthouses.

Now that racial discrimination has officially gone out of fashion, vitriol against immigrants runs rampant, often masquerading as insistence that immigrants wait in line, when it is clear that for hundreds of millions of immigrants there is no line. Even immigrants who have obtained visas to be the United States are lumped in by many anti-immigrants folks with those who do not have visas 

Considering that many potential jurors are so racist and anti-immigrant that they will not overcome their prejudices on a jury, it is critical that criminal defendants have the sole option to decide whether to have or waive a jury in jury-triable matters. However, of all the jurisdictions where I practice law (the state and federal courts of Maryland, Virginia, Washington, D.C.), Maryland state courts are the only place that provide criminal defendants with the sole choice between a jury and judge.

Granted, being human, there are racist judges out there, as well, that might make a criminal defendant opt for a jury instead. However, waiving a jury should be the defendants’ sole choice.

There likely are prosecutors out there who take advantage of racism (and many other factors, of course) in jury pools by refusing to agree to waive juries in trials, in the expectation of a greater chance with juries (rather than bench trials) of a guilty plea, or else in a guilty verdict, and in a harsher sentence in such jurisdictions as Virginia where the jury recommends the sentence.  
Two recent obituaries highlight how very recent is the deep-seated racism among so many in the United States, how much others have kowtowed to that racism by implementing segregation out of fears of losing racist customers, and how very far we have left to go towards eliminating racism and xenophobia (which xenophobia worsened among so many after the September 11 murders). One is the obituary of M.J. Perry, Jr., an African-American man who rose to become a federal trial judge in South Carolina, appointed by Jimmy Carter, after the indignities of being forced to wait in the courthouse balcony with other African-American lawyers for their cases to be called, to having to drive home no matter the long distance during multi-day court trials in the absence of available hotel rooms in the South for African-Americans, to having to order lunch outside a restaurant that inside was table-serving Italian prisoners of war during World War II, when the United States military still was racially segregated.

The other obituary is of actress Jane White, who recounted her view that right into the 1960’s (at the very least) in the theaters of New York City — which would supposedly have been one of the nation’s more enlightened locations about race — she lost roles for neither looking "black enough" or "white enough". In 1959 for her Broadway role in Once Upon a Mattress, she was asked to whiten her complexion, to appear to be white to the audience.

Perhaps most of the time periods I recount above sound long ago to those born after 1980. However, plenty of people who implemented and promoted segregation in the past are alive and well today, and plenty of the children and grandchildren of such people have been poisoned by their views and the racist views of others in their midsts, without modifying those views much or at all.

I would like to think that with each decade, we move further in the right direction against racism and xenophobia, but the pace remains too slow. In the meantime, criminal defendants must be afforded the sole choice whether to waive a jury trial.

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