Further Affirmative Action Strategies for Racial and Ethnic Equality in The Jury System: The Case Study of The Eugene 'Bear' Lincoln Trial and The Native American Jury

Abstract

This article examines possible applications of two affirmative action strategies in jury selection -- affirmative jury structures and affirmative peremptory inclusion -- in order to create racially mixed juries. I contend that, with the use of affirmative jury structures such as de medietate linguae jury, the Hennepin jury, and social science models, the court can effectively design three specific forms of racially mixed tribunals by requiring varying mandatory racial quotas to ensure the allocation of jury seats to racial minorities. Affirmative peremptory inclusion is a procedural jury selection strategy in voir dire to neutralize the biasing effect of race-based peremptory challenges so that a racially mixed jury is achieved through affirmatively choosing, rather than peremptorily excluding, potential jurors who share the same racial and ethnic background as the defendants. In order to illustrate the importance of affirmative jury selection structures and peremptory inclusion, this paper specifically focuses on People of the State of California v. Eugene Bear Lincoln (no. cl2632), the recent criminal trial and racially explosive case that received extensive national attention and international media coverage. The present author participated in the Lincoln trial as a defense jury consultant in assessing the extent of racial discrimination in jury selection at Mendocino County Superior Court, California. The critical analysis of the Lincoln case demonstrates that racially diverse tribunals may be the only effective and equitable solution to increase public's perceptions of trial fairness and verdict legitimacy in racially sensitive trials.