What should have been a standard, legitimate, and well-founded objection surrounding a Massachusetts criminal procedure rule turned into a racially awkward sound bite circus in the Aaron Hernandez double murder trial.
I can’t tell what’s more troubling: (1) that a defense attorney argued his point by accusing a judge of being de facto racist rather than relying on citations to legal authorities; (2) that a sitting judge was accused of operating with racist motives for actually following the law, (3) that a sitting judge didn’t properly bulletproof his decisions by quoting the actual law he followed, (4) that the judge failed to grasp the gravity of the argument against him, or (5) that the underlying procedure mandated by the law seems inherently unfair.
Wow. What a mess.
It all started to hit the fan when Aaron Hernandez’s defense attorney Ronald Sullivan in the double murder trial more or less accused Judge Jeffrey Locke of being a racist.
Sullivan is black. He’s a professor at Harvard Law School.
Locke is white. He’s been on the bench in Massachusetts since 2001.
Sullivan first levied the accusation Thursday when the defense complained about the way the judge selected a foreperson and removed alternates from the jury.
Here’s how that went down: at the end of the trial, the judge selected a jury foreperson. The person he chose just happened to be one of two white women on the jury panel. Next, the court clerk placed the numbers of the remaining jurors, but not the foreperson, into a barrel. The clerk then drew three numbers from that barrel. The three jurors whose numbers were drawn became alternates. The pre-selected foreperson joined the remaining eleven people to form the final deliberating jury of twelve.
On Thursday, Sullivan reminded Judge Locke that he originally told the jurors that they’d have an “equal” chance of serving on the jury and an “equal” chance of being chosen as an alternate. Sullivan argued that the judge went back on his word by selecting a foreperson before removing alternates.
“In an overwhelmingly ethnic and minority jury . . . each of those ethnic minorities has the ability, the capability, the intelligence, and the competence to serve as foreperson. For your honor to make that decision has extraordinarily troubling racial overtones.”
Judge Locke, having presumably mulled the accusation over the weekend, responded to Sullivan on Monday without the jury present:
“You went on to challenge the selection of the foreperson because the foreperson was one of two white women, and by selecting that individual I was ensuring that at least one white woman would remain on this jury, and you indicated that because of the overwhelmingly ethnic and minority jury that was seated, my selection had ‘extraordinarily troubling racial overtones’ that implicate the defendant’s due process rights.”
“Accusing any court of being racist is not only offensive to the individual judge, but is extraordinarily offensive to the tribunal and the integrity of the tribunal . . . frankly, I find it astounding that you would make that claim.”
Locke went on to state that it seemed Sullivan’s argument was that a white woman should not be selected as the foreperson. That was a classic straw-man move. Sullivan’s position did not appear to me to be that weak.
“We find it offensive that with this . . . jury predominantly filled with people of color that they cannot self-govern, they cannot self-regulate, that this court immunizes, in effect, one white juror and makes that juror the lead, the leader of this group. We find that offensive, your honor.”
Locke zeroed in on the defense’s suggestion that the jury-self govern and asked whether Sullivan was suggesting that there should be no foreperson. The Massachusetts Supreme Court has already stated the jury’s self-selection of a foreperson was an “irregularity” under a previous statute (which has since been incorporated into the court rules), though Locke didn’t explain that from the bench. (The case is Commonwealth v. Campbell, 394 Mass. 77 (1985); it considered whether a jury’s self-selection of a foreperson, the inverse of Hernandez, was reversible error. It wasn’t because in that case the defendant was not prejudiced by the error.)
Sullivan reiterated that all of the members of the jury pool should have had an “equal chance” for removal as alternates and, thus, an “equal chance of not being on the jury.”
“Your honor’s choice of that foreperson is deeply troubling based on the racial and ethnic composition of this jury,” Sullivan went on to say.
The judge thought the upshot of Sullivan’s argument was that Sullivan wanted him to exclude from consideration as foreperson the white women on the jury.
“I found that astounding that you would make that claim,” Locke told Sullivan.
Locke further went off the rails, though.
“It would be foolish to take a well-qualified juror, who had given close and careful attention throughout the trial, and who would be able to perform that function, and then knock them off just by random draw,” Locke said.
Implicit in that statement is the judge’s apparent belief that he should be able to select what he perceives as the best juror for the job of foreperson and to see to that juror’s continued service. Or, the judge is just so engrained in the Massachusetts way that he’s baffled as to the reality that other states do it differently. As such, Locke seemed to miss the point of the objection (at best) or attempted to bury it (at worst). Toward the end, Locke said, “I’m not sure I understand your position, but at least I’ve explored it to the extent it can be explored and understood.”
Sullivan countered by noting that at least his objection was on the record.
Sullivan is correct, I believe, in arguing that the Massachusetts jury empanelment procedure is troubling from a number of perspectives. Because the judge selects the foreperson before the alternates are removed from the deliberating pool, the judge basically gets a vote on who sits on the deliberating jury. It would be more fair if the court threw everyone’s juror number into the barrel, then withdrew the numbers of the alternates, then selected the foreperson. That way, every member of the original panel would have an equal chance of being removed as an alternate. Better yet, perhaps, the jury could select its own foreperson after being empaneled and sent to the jury room. Many other states do it that way.
The process of allowing the jury to select its own foreperson takes more time. Judicial selection is quick and efficient. However, as at least one commentator points out, the fact that the judge selects the foreperson gives the judge — any judge — the appearance of having a favorite among the jurors. It negates the presumption of judicial neutrality. Worse yet, it could send the signal that a judge values his or her hand-selected foreperson’s thought process above the thoughts of others on the jury. That signal, whether founded or unfounded, could influence the outcome of cases.
I agree with Sullivan that the procedure seems inherently unfair. I disagree with Sullivan’s tactics. While I agree that there are times when the redress of grievances calls for loud advocacy, this was not one of those times.
Why? The judge was merely following the law of trial procedure in Massachusetts.
Massachusetts Criminal Procedure Rule 20(d)(2) sets forth the procedure for whittling down the jury to a final twelve members for deliberation:
“[T]he judge shall direct the clerk to place the names of all the remaining jurors except the foreman in a box and draw the names of a sufficient number to reduce the jury to twelve members” (emphases added).
That’s exactly what the judge did. The word “shall” tells me that there isn’t any wiggle room.
The Rule mirrors the sentiment of what was Massachusetts General Law c. 234 § 26B, which was repealed effective May 10, 2016. The statute is gone, but the court rule remains in effect so far as I can tell.
Locke’s defense of himself in court revolved around this argument: “I’ve always selected a foreperson before selecting alternates. It would be foolish to do otherwise. It’d be foolish to take a well-qualified juror . . and knock them off by random draw.”
That’s a weak comeback.
Trial judges are afraid of being overturned. They’re similarly afraid to go against the grain. They’re going to follow the procedures laid out for them by the higher courts. It’s not up to Judge Locke to change the trial procedure rules on the fly. That is the job of his bosses at the appellate courts.
It is unfortunate that a legitimate objection about the inherent fairness (or lack thereof) of Massachusetts Criminal Procedure Rules degenerated into a personal attack on a judge. Sullivan should be embarrassed. He should have done better researched. He should have cited the legal authorities (as I have started to do above!) which support his argument. He should have pointed to the specific rule with which he took issue and dissected the rule, not the judge.
It’s similarly unfortunate that the judge’s ruling didn’t contain clear references to the legal authorities which govern Massachusetts trials. He should also be embarrassed. He could have defended himself much better had he pointed to the black letter of the law and said, “this is what I did, and I did it because that’s what I had to do.”
It bothers me when arguments in a court of law don’t contain any actual references to law. If we’re to believe that the law is indeed the bedrock of our society, we need to read it, use it, and discuss it. Resorting to ad hominem attacks without anything further accomplishes next to nothing beyond creating television drama.
Let’s have a discussion. Let’s focus it on the text of the rules. Let’s talk about what rules might need to be changed, and why. Civility is supposed to be a hallmark of the profession. (This exchange was actually docile compared with other feisty exchanges between the judge and the defense team, but it failed to focus on the true issues.)
The Massachusetts trial procedures are worthy of legitimate discussion in light of Supreme Court decisions on the racial makeup of juries.
Aaron Keller is an attorney and host for the LawNewz Network.
This is an opinion piece. The views expressed in this article are those of just the author.