How all-white juries taint confidence in Minnesota's courts
U.S. law requires jury pools to represent a fair cross section of the community. Yet people of color are less likely to make it into the jury pool compared to white residents, even though most defendants are people of color. It's a decades-old issue that has defied solutions.
ROCHESTER — When Bud Whitehorn walked into the courtroom for his trial, no one on the jury looked like him.
It was the early 2000s and Whitehorn, a Rochester resident who identifies as African American, said every person in his Olmsted County jury pool was white except for one Hispanic man. And, he recalls, the Hispanic juror was later dismissed, leaving his fate to be decided by an all-white jury.
Whitehorn said he didn’t have any confidence in the system and considered pleading guilty to avoid a jury trial, but his attorney persuaded him to go through with the trial, confident that they could prove his innocence. Instead, the jury convicted Whitehorn.
More than a decade later, Whitehorn, who is now an ordained deacon and Rochester’s community liaison, said he still imagines what it would have been like if the jury had reflected his community — a true “jury of his peers.”
“Even if I was still found guilty, it would have felt so much better,” he said. “Would have felt like I had a fair shot.”
Whitehorn's experience is a common one. In the 2020 U.S. Census, nearly 4 in 10 Minnesotans are non-white. But the racial makeup of juries is nowhere near reflecting that level of diversity.
And not only is it a common phenomenon, it is one that has persisted for decades. The issue was acknowledged by the Minnesota court system as far back as the 1990s and again in 2021. Although the court made recommendations to improve the issue, a Rochester Post Bulletin investigation found that few solutions have been implemented and little to nothing has changed.
In 2022, people of color are still significantly underrepresented in Minnesota jury pools, according to an analysis of the latest available data by the Post Bulletin. Although U.S. law requires jury pools to represent a fair cross section of the community, people of color are less likely to make it into the jury pool compared to white residents, even though most defendants are people of color.
The jury selection process would appear to be race neutral — jury summons are sent to a random selection of people and, after questioning for potential bias, a 12-person jury is selected from the pool and sworn in. However, eight attorneys interviewed by the Post Bulletin said that these racial disparities in the jury box are baked into the system from the start. The master source list of all potential Minnesota jurors is compiled by merging voter registration records and drivers license logs (including state IDs) — two sources where white Minnesotans are more thoroughly represented than non-whites.
Jury service is also a financial burden for many, so some jurors are excluded due to financial hardship — an issue that affects people of color disproportionately compared to white people. In some Minnesota counties, the juror per diem rate doesn’t even cover the cost of parking.
Even if prospective jurors of color make it into the jury pool, they can be struck from the pool by lawyers who believe they will be less fair than others. These strikes are known as peremptory challenges and have received national criticism as a means of limiting jury diversity. Although Minnesota and federal law prohibits purposefully discriminating on the basis of race or gender in the exercise of peremptory challenges, the Equal Justice Initiative reported in 2021 that this issue persists across the country — many prosecutors “have been explicitly trained to provide ‘race-neutral’ reasons for strikes against people of color.”
Diverse juries don't just better reflect the state's changing population, evidence suggests that they also produce better, fairer outcomes. They spend more time on deliberations and make fewer factual errors, according to a 2006 study published by Stanford University. That's important because courts rely on public trust in the integrity of the justice process, but many defendants of color have little faith. This wavering confidence in the system has far-reaching effects — many of which percolate beyond the bounds of the courtroom.
“It erodes the justice system and the legal system as a whole,” said Angie Setzer, senior attorney at the Equal Justice Initiative. “Representative juries are so critical … to not just the outcomes of individual cases, but to our entire community's ability to have confidence in that system.”
The issue of racially disproportionate juries, and its solutions, are hardly new.
The Minnesota Supreme Court acknowledged the issue in its 1993 report, Racial Bias in the Judicial System . The court reported that “jury pools rarely are representative of the racial composition of a community. People of color have a general distrust of the criminal justice system and exclusion from jury service fosters that distrust.”
The court recommended a range of solutions including expanding the jury source list, decreasing the impact of financial hardships on potential jurors by providing free drop-in daycare and running a pilot project in Hennepin and Ramsey counties to adopt a new jury selection process to guarantee that people of color are proportionately represented.
However, according to a 2019 progress report , of the 11 jury recommendations made by the court in 1993, only three recommendations had been completed in the 26 intervening years. One of those recommendations — the pilot project — was greenlighted but there is no evidence that it was implemented. The other eight recommendations are still listed as being in progress or not started.
The Minnesota's State Court Administrator's Office did not respond to questions about why many recommendations have yet to be addressed. When asked about the pilot project, a spokesperson said in an email that the office has no information about it.
John Choi, the Ramsey County attorney, said the justice system and societal response have been inadequate.
“We need to recognize and acknowledge the fact that we're not making enough of an effort to actually make these changes,” Choi said. “My plea to the people is to go back and look at these reports … there were things that were identified back then that could be really easy and that we should implement.”
In 2021, the Minnesota Judicial Council’s Committee for Equality and Justice (CEJ), produced an updated report , which found results consistent with the 1993 study and listed updated recommendations. Those included addressing the lack of race data available, engaging in community outreach, monitoring the NCSC’s study into how to develop more inclusive jury lists and further studying of the effect of potential jurors who do not report for service on the representativeness of the jury pool.
The State Court Administrator's office said in an email that it is actively working on each recommendation.
On May 18, the Hennepin County Bar Association (HCBA) hosted a Zoom presentation in which Judge Richelle Wahi, who drafted the CEJ report, discussed its findings and recommendations. This discussion was the fifth of an eight-part series on racial equity and justice hosted by HCBA.
“We really saw this as an issue,” Wahi said in the Zoom session. “We are reflecting statewide disparities and those numbers absolutely need to be addressed.”
Wahi said she has been working on this issue for years, but that it takes time to enact change. She said she feels stymied by the fact that the judicial branch can only do so much. Some potential solutions fall under the purview of the executive and legislative branches.
Wahi did not respond to the Post Bulletin's requests for further comment.
Though CEJ’s recommendations are a good step, Corey Sherman, training director for the public defender system, said in an interview that the recommendations lack urgency and focus on further research instead of implementing available solutions.
“People are getting frustrated with the inaction of the state committee,” Sherman said. “We don’t need to keep studying. We know it’s an issue … and there are things that we could be doing that we’re just not doing.”
Sherman, who moderated the May 18 event, asked Wahi on Zoom why some of the recommendations from the 1990s were not implemented. Wahi said that she and her colleagues have worked hard to compile the 1993 recommendations and include detailed notes on the status of each recommendation in progress reports, but she did not discuss the eight recommendations that have yet to be completed.
In an email after the event, Sherman said that she hasn’t seen much progress on the 2021 CEJ recommendations either.
“I don’t think we have community engagement, nor have we obtained accurate race data,” she said. “As far as I can tell, after about 30 years, we are still admiring the issue.”
A flawed system
In Olmsted County, where Whitehorn lives, the percentage of Black or African American residents in the jury pool is 59% less than it should be, to reflect the makeup of the local population. Hispanic and Asian residents are also underrepresented relative to their share of population.
That shortcoming puts Olmsted County in jeopardy of having its verdicts face legal challenge. According to the National Center for State Courts (NCSC), most cases cite a percentage between 40% to 50% as sufficient to establish a prima facie violation of the fair cross section requirement. Every Minnesota county, but one, exceeds that 40% to 50% threshold, according to a Post Bulletin data analysis.
Counties that are in violation of the fair cross section requirement can be litigated on a case by case basis, the State Court administration said in an email. There have been at least three related unsuccessful challenges over the past year.
Why are these disparities persisting even though Minnesota has become more diverse in recent years?
For one, jury service is a heavier lift for some. Caroline Hilk, a recent Hennepin County juror, said that she was only paid $20 a day for jury service, which didn’t even cover the cost of her train fare and a burrito for lunch. Two people of color who voiced concern about financial hardship were released from her jury pool, she said. Carole Finneran, an attorney with the Ramsey County Public Defender's Office, said for some jurors, “if they miss eight hours of work, they’re not going to be able to pay the rent or put food on the table for their kids.”
Although this and other steps in the jury selection process could be improved, all 10 lawyers interviewed by the Post Bulletin, both prosecution and defense, said the method used to create the jury pool deserves the most blame — and also represents one of the greatest opportunities for improvement.
The master list is created by merging the Minnesota voter registration list and the licensed drivers and ID card holders list. However, according to 2020 US Census data, white residents are registered to vote at much higher rates than people of color — sometimes a disparity as great as 30 percentage points.
The same is true for licensed drivers and ID card holders. Although the Minnesota Department of Public Safety does not maintain, or at least publicly release, data regarding race and the possession of a driver’s license, David Schultz, a law professor at University of Minnesota and Hamline University, has inferred from his research that Minnesota residents of color are underrepresented in these records compared to white residents, as they are in other states.
Mark Ostrem, the Olmsted County Attorney, said he is frustrated that prosecutors, like him, are often blamed for questioning potential jurors in a way that winnows down people of color in the jury pool. Ostrem said that he, too, wants more diverse juries, but he feels like he has little control because the jury pool is skewed from the start.
“A lot of the initial disqualifiers all happen long before these people ever walk into a courtroom,” Ostrem said. “It's not the prosecutor’s fault; it’s not the defense attorney’s fault. It's not the judge’s fault. It's a systemic fault.”
Court rules further exclude jurors of color
According to Minnesota Court Rule 808, residents who have been convicted of a felony and are incarcerated or doing probation are disqualified from serving on a jury. Lawyers like Amanda Delaney question the merit of this rule, especially as it disproportionately targets people of color who are arrested at higher rates.
“I don’t see how their conviction prevents them from being a fair and impartial juror,” said Delaney, a public defender in Worthington. “People make a lot of mistakes in their life. Some are more serious than others. And the system is structured in a way to prevent people that have made those mistakes from really participating in our society altogether.”
In response to questions regarding the rationale behind this rule, State Court Administration said in an email that its rules are consistent with those of other states.
This method of excluding formerly incarcerated people from serving on juries during long probationary periods has a pronounced racial impact — especially in a state like Minnesota, which has some of the worst racial disparities in the country in terms of incarceration rates.
Wanda Bertram, communications strategist for the Prison Policy Initiative, said the rule should be scrapped because it excludes legitimate voices from the system. And it doesn’t make any sense, she said.
“A criminal conviction has no bearing on whether you're able to serve on a jury although it certainly gives you a little extra experience with the criminal justice system,” she said, “which from some perspectives could actually be a good thing for the role.”
Other issues are administrative, Schultz said. Jurors who make the list don’t always receive their summons, as addresses aren’t updated frequently and are only mailed in English.
When asked about claims that the method of compiling the jury pool is problematic, the State Court administration shared their inclusivity rates, which measure the percentage of the adult population that is encompassed in the jury source list. The 2022 inclusivity rates in all 10 Minnesota judicial districts are in the recommended range. However, the measure does not differentiate by race or ethnicity.
The court also said it has no information or data to indicate the cause of the impact.
Sherman, Finneran, Bethany O’Neill and Emmett Donnelly are four Minnesota attorneys who are part of a workgroup within the public defender system that has spent the past two years brainstorming litigation to remedy the issue of Minnesota’s racially disproportionate juries. Schultz has also partnered with them.
Despite the range of obstacles, the workgroup and every attorney interviewed for the story pointed to a list of easy-to-implement solutions, like expanding the jury source list, by pulling names from other publicly available records, and mailing jury summonses in multiple languages.
Donnelly, an attorney with the Hennepin County Public Defender's Office, said other states have implemented some of these solutions, but Minnesota hasn’t. Instead, the court system places blame on jurors of color for not reporting to the pool properly. Donnelly said his efforts to litigate this issue as systemic exclusion are often met with the same response: that “there’s nothing wrong with our system because our system is race neutral,” he said. “There’s something wrong with the jurors.”
Lack of confidence
Minnesota’s racial disparities in the jury box can erode defendants’ confidence in the process, as it did for Whitehorn. Some people of color worry that they will be judged based on racial stereotypes in the media or that white jurors won’t be able to relate to their life experiences. Others, like Whitehorn and several of Finneran’s clients, want to plead guilty after they catch sight of the jury — convinced they should take a plea bargain since they believe they won’t get a fair shake in front of an all-white jury.
O’Neill, a felony attorney in the Second Judicial District office in Ramsey County, said she has learned to warn her clients of color ahead of time that there probably won’t be anybody who looks like them on the jury, so they won’t be surprised.
However, “they don't expect anything else,” O’Neill said.
The optics of racially disproportionate juries damage defendants’ confidence in the system, but can also undermine a juror’s confidence in the justice system. As it did for Caroline Hilk.
Hilk, the director of the Office of Medical Education at the University of Minnesota Medical School, said she was excited to participate in her first jury service, but was concerned when she discovered her 12-person jury had only one person of color. Hilk, who identifies as white, worried that the defendant, an African immigrant, wouldn’t feel like he was being judged by a jury of his peers.
The sole person of color on Hilk’s jury was a young nursing student, and Hilk said she valued having the young woman's perspective in the room. As the daughter of two recent immigrants to the United States, the young woman was able to provide context on the experience of the defendant that was invaluable for a group of 11 non-immigrant jurors, Hilk said. However, she said, it was hard watching that woman be put in such a burdensome role.
“A closed-door room with 11 people, 11 white people, and she was expected to be the voice of people of color,” she said.
The Post Bulletin reached out to the nursing student juror for comment, but she declined to be interviewed.
Hilk was satisfied with her jury’s final consensus — that the defendant was not guilty on all counts — but it led her to wonder aloud how easily a different group of jurors could have come to a different verdict.
Meg Mitchell, chief public defender of the Third Judicial District, which includes Olmsted County, shares this worry. “I would like to believe that people can empathize and understand all the prejudices that my clients face," she said. "But at the end of the day, what matters is who is in the deliberation room. And it’s usually not proportionally representative of people of color.”
Hilk said she wanted to believe that the jury process was a method to have cases decided fairly. “That once you can get 12 people in a room, they're going to do the right thing,” she said. “Now, being one of the people in the room, I recognize that doing the right thing is all a perspective of the individuals in that room. And so we need to make sure that juries broadly represent the population of the community that they are expected to serve.”
Learn more: Racially disproportionate juries are a problem in Minnesota, but not without solutions
Two separate court reports in the last 30 years have recommended steps to achieve racial balance between jurors and criminal defendants. Ten attorneys interviewed by the Post Bulletin shared even more steps they believe could help.
Expand jury source list
To start, Minnesota could diversify its jury source list. Instead of pulling a jury pool from Minnesota’s voter registration list and the licensed drivers and ID card holders list, Meg Michell, chief public defender for the Third Judicial District, said the state could supplement the list by pulling records from a range of additional sources including state tax filers, public assistance and unemployment compensation source lists, and public utilities bills.
Rethink jury summons
Next, Mitchell said the court system should be more creative in how they communicate summonses with potential jurors. Mitchell said the court should be sending multiple summons, translated into different languages, by text and email as well as postal mail.
Six attorneys interviewed for this story said that a common hurdle is inaccurate juror addresses on file. The master jury list is only updated once per year, so if residents move frequently they are unlikely to receive their summons. Instead, the master jury list should be updated twice a year and cross referenced against other sources.
Emmett Donnelly, an attorney with the Hennepin County Public Defender's Office, voiced many of the same recommendations and said he is pleased that they are race-neutral and easy to implement.
“There are multiple steps they can take that, frankly, are not controversial and aren’t really very expensive,” he said.
Oversampling by region
Another strategy is to allow jury commissioners, if the jury panel is disproportionate, to overdraw prospective jurors from communities, areas or ZIP codes where people of color are over-represented, Mitchell said.
Zenell Brown, executive court administrator for the Third Judicial Circuit Court of Michigan, has implemented this practice in her county with great success.
Although the issue of racially disproportionate juries appears daunting, it can be helpful to look to what other states are doing as a model. Zenell Brown, executive court administrator for the Third Judicial Circuit Court of Michigan, said Wayne County, which includes Detroit, dealt with similar issues to Minnesota.
Their master list pulled from limited sources, jurors worried about financial hardships and addresses were often out of date so they had an endless loop of returned summonses. Intent on making the jury pool more reflective of the Detroit community, Brown has spent years implementing solutions.
First, Wayne County has instituted a practice of sending extra summonses to certain regions where people of color are overrepresented or where there is a high no-show rate to supplement the source list.
Brown said this has proved successful. Prior to the pandemic, approximately 39% of her county’s population was African American. When they asked people to self-identify, she said the court found the percentage of African Americans in the jury pool was usually between 35% and 39%.
Second, she said they’ve been creative in their public outreach and community education. They connect with a range of organizations from the NAACP to churches to sorority and fraternity graduate chapters.
“You start looking for those unconventional partners who really have their hand in community work,” she said.
They’ve also focused significant outreach towards young people — educating future eligible jurors on the value of jury service and reframing it as important instead of an inconvenience. Judges have visited schools to discuss jury service, and the court has even opened their doors for high school mock trials and elementary school tours.
When residents do not answer jury summons, judges in her county use it as another opportunity to educate versus penalize. Even though the judge has power to fine or even jail jurors who skip their summons, they instead bring these residents in to hear more about why they couldn’t show up the first time, explain the importance of jury service and set a new court date.
To help jurors who are concerned about financial hardship, Brown said they have increased juror daily pay and offered lunch during the pandemic.
Looking forward, Brown hopes the state legislature will be part of the solution. One of the senators is currently working on a bill that will ensure that no one is stricken from the jury panel because of race or ethnicity. The bill would also improve consistency across the state of Michigan. Instead of each county using different strategies for jury summonses, it would become a statewide operation.
“This would give us an opportunity to leverage resources and have some consistency and uniformity,” she said.
To aid jurors who might find it difficult to participate due to financial hardship, Carole Finneran, an attorney with the Ramsey County Public Defender's Office, said Minnesota should increase the per diem pay rate for jurors, offer child care assistance or vouchers, lessen the amount of time for jury service and provide transportation options to the courtroom.
Mitchell and others said that change is unlikely to happen unless advocates can get buy-in from the entire justice system — including prosecutors, court administration and law enforcement. Collaboration is crucial, she said, especially to ensure change is enacted with consistency across all Minnesota counties.
Moving forward, Mitchell wants to push for more education and training on the issue and for work to ensure that people of color are seated among the change-makers as well as in the jury box.
“We need to include our clients,” she said. “We need to include the voice of the people that are being the most hurt by this in those conversations of change.”
Finally, Mitchell and others said, Court Rule 806 should be amended to provide clearer direction about when the rule should apply. This was echoed by lawyers including Donnelly and recommended in the Minnesota Judicial Council’s Committee for Justice and Equity (CEJ) 2021 report.
Rule 806 includes provisions that act as a safeguard — a legal avenue to address inequities in the jury pool. It states that, “if the chief judge, or designee, determines that improvement is needed in either the inclusiveness of the jury source list or the representativeness of the jury pool, appropriate corrective action shall be ordered.”
However, Donnelly said that action is limited because the rule doesn’t include an actual standard by which to assess if improvement is needed. To remedy this issue, CEJ recommended that district chief judges or designees be given regular training on how to determine whether corrective action is needed and what kind of corrective action might be available or appropriate.
Without a clear standard written out, Donnelly and other members of the work group have found that chief judges and jury commissioners who could be making change haven’t yet because they don’t think there’s anything they can do.
Donnelly said he is frustrated that Minnesota’s court system has promising rules like 806 in place, and so many possible solutions at their disposal, but few details to spur action.
“We’re just asking that it follow its own rules,” he said. “They have rules that allow them to fix the jury system, to change it and to adapt it. And why wouldn’t you?”
Change could be on its way. In April, the Third Judicial District Committee for Equity and Justice sent a letter to Chief District Court Judge Joseph Bueltel requesting that he take corrective action to address the jury issue. (The Third Judicial District includes southeastern Minnesota counties including Olmsted, Mower and Rice.) The 10-page document includes extensive background research on the issue and makes several tangible recommendations — all of which align with Mitchell’s proposed solutions.
Mitchell said she is encouraged to see judges pushing for practical things that can lead to prompt change, and she hopes more people will pick up the mantle and advocate for updates to the jury system.
“I’m very happy to see that there’s passionate judges, court administration, prosecutors on the other side of the aisle that care very much and are interested in learning more,” she said. “That’s really promising to me. But I think we need more of that.”
Minnesota jury data by judicial district
This data was compiled and analyzed by the Post Bulletin.