‘State constitutional policies … require a trial court to consider racial demographics in exercising its authority … to change the venue of a criminal trial or to impanel a foreign jury."

So held the Appellate Division of the New Jersey Superior Court on June 12 in State v. Ambrose Harris, in which a black man is charged with raping and murdering a white woman. The court said that Harris-who had won a motion to import a jury because of inflammatory publicity in the racially diverse city where the crimes had occurred-had a right not to have the jury imported from a 98 percent-white suburban county.

Was the New Jersey court just crafting a rule for those rare cases in which venue is changed or jurors are imported? After all, a black defendant might not feel much better about facing an all-white jury if the reason was that his alleged crimes had been committed in a 98 percent-white county. So there is reason to wonder whether the New Jersey ruling may be a first step down the road toward some kind of right to a jury of one’s racial peers, enforced by racial quotas in jury selection.

Such quotas have, in fact, been urged by a few scholars, including Professor Sheri Johnson of Cornell Law School, who has written that black defendants should have a right to juries that include at least three black members.

Whatever the rules should be, it’s becoming increasingly clear that the jury system will be in grave peril if we cannot reverse our society’s drift toward ever deeper racial polarization and tribalism. The staggering racial divisions over the O.J. Simpson case-with 78 percent of whites in one recent poll believing him to be guilty of double murder, and 71 percent of blacks believing him to be innocent-do not bode well.

Such polls, and some scholarly studies, confirm what common experience suggests: Racial identification has a sufficiently large effect on the outlook of many jurors that-other things being equal-black and white defendants alike often fare better with jurors of their own race, at least in racially charged cases.

And this represents a particular problem for black defendants.

This is not necessarily to say that white people are less impartial than blacks when it comes to judging black defendants; indeed, in the case of Simpson, against whom there is a mountain of evidence, race-based partiality seems widespread in the black community. But a great many more black defendants are disadvantaged by the racial dynamics of the jury system.

And even when white jurors are meticulously fair to black defendants, that’s not always the perception in the black community. Imagine if the venue of the Simpson case had been changed to, say, a white suburb, and he was convicted there by an all-white jury. No matter how overwhelming the evidence of guilt, the perception among black people that Simpson had been railroaded would be rampant and destructive.

Nor is the perception of unfairness to minority defendants the only concern. It wasn’t a conviction that caused the worst rioting in the history of Los Angeles in 1992; it was an acquittal, by a mostly white Ventura County jury, of the four white police officers who had beaten Rodney King on the famous videotape.

NO GUARANTEE OF RACIAL DIVERSITY

Perceptions of racial unfairness in the criminal justice system are especially tenacious and corrosive because of our long and shameful history of rigging that system against black people, by such means as prosecutors’ systematic use of peremptory challenges to remove blacks from juries. The need to break with this history was the moral imperative behind Batson v. Kentucky, the 1986 Supreme Court decision barring use of race-based peremptories by prosecutors.

But even perfect compliance with Batson could not guarantee every black defendant a racially diverse jury. Given the large number of jurisdictions with overwhelmingly white populations, the usual, colorblind jury selection process is bound to produce a lot of overwhelmingly white juries. And if I were a black defendant-especially one charged with an interracial crime-I would be less than completely confident of getting a fair shake from an all-white jury.

I would have the same concern if I were a white defendant facing trial by an all-black jury for an interracial crime. Relatively few white defendants face that prospect, however, because relatively few jurisdictions have large enough black majorities to lead to selection of very many all-black juries.

For this reason, jury selection as we know it gives white defendants a much better shot than black defendants at seeing people who look like them-and are more likely to identify and sympathize with them-on their juries. A plausible case can be made for redressing this imbalance, and ensuring a greater appearance of fairness to black defendants, by giving them a right to some minimum number of black jurors.

But on that road lies a nightmarish series of impossible choices, and perhaps the demise of the jury system itself.

HOW MANY ARE ENOUGH?

How many black jurors should a black defendant be entitled to? One-or three-or six? Why not all 12?

And would the right to black jurors obtain only in cases of interracial crimes or in all criminal cases?

And what about other racial minorities? How would we round up enough black (or Asian, or Hispanic, or Aleut) jurors-in, say, Maine-to fill the quota for every minority defendant?

And, perhaps most important, how would any mandate of racial representation on juries be administered? By cordoning off separate sections of the courtroom during jury selection-one for blacks, one for whites-and then taking one person from the black section for every three from the white section?

What kind of statement would the judicial system be making if it mandated such practices? That jurors are expected to judge defendants on the basis of racial solidarity, and that minority jurors are being sought out not for their presumed impartiality, but for their presumed feelings of solidarity with minority defendants?

The bottom line is that racial quotas in jury selection are a terribly disturbing idea whose time-mercifully-has not come. Yet such proposals may be increasingly hard to resist if we lose our collective confidence in the ability of all jurors to be reasonably impartial regardless of the race of the parlies. If that happens, will what is left of the jury system be worth saving?

The New Jersey court’s decision in Harris nonetheless seems right. That’s because, on the peculiar facts of the case, the perception of unfairness to the black defendant was especially powerful and easily avoided.

The rape and murder with which Harris is charged took place in Trenton, the main city in 19 percent-black Mercer County. The state trial judge granted Harris’ motion to import a jury (or, in the alternative, a change of venue) because the Mercer County jury pool had been saturated with inflammatory publicity by a local newspaper (the Trentonian), which presumed Harris’ guilt and clamored for his execution.

But the trial judge rejected Harris’ request that the jury be brought in from 16 percent-black Camden County, which mirrors the racial demographics of Mercer County. Rather, the judge chose Hunterdon County, which is contiguous to Mercer County and thus marginally more convenient. It is also only 2 percent black.

The appellate division reversed the choice of Hunterdon County in an opinion by Judge Stephen Skillman. He held that the New Jersey Constitution’s guarantee of the "right to trial by an impartial jury drawn from a representative cross-section of the community" meant that a black defendant cannot be forced to stand trial before a jury from a county with a far smaller percentage of black people than the county where the crime occurred.

This holding should not be seen as a first step toward racializing jury selection in general. It can and should be cabined to the context of venue changes and foreign juries, for two reasons.

First, while no constitution or law guarantees a right to trial by a jury of one’s racial peers, the New Jersey Constitution does guarantee defendants the aforementioned impartial jury "drawn from a representative cross-section of the community" where the crime occurred. The Sixth Amendment to the U.S. Constitution guarantees a similar right. This logically implies a corollary right, in cases involving a change of venue or a foreign jury, to have a jury pool that approximates as closely as feasible (given geographic constraints) a representative cross-section of the community where the crime occurred.

And second, in the Harris case, the reason the defendant was headed toward trial by a (probably) all-white jury was not the locus of the crime, but rather a deliberate choice by a trial judge, who could easily-given the proximity of Camden County-have made a different and less troubling choice.

Would the appellate court come out the same way if, for example, a white defendant charged with raping and murdering a black woman in an overwhelmingly white county objected to having his jury imported from mostly black Newark? It should. While demographics suggest that few (if any) white defendants will be in a position to invoke the rule of the Harris case, there should be no racial double standard in applying the rule.

It is disconcerting to find myself endorsing the introduction of the potentially virulent germ of racialism into any aspect of jury selection. But it would be even more disconcerting to have to explain to a presumptively innocent black defendant in an interracial rape-murder case why the price of invoking his right to a jury untainted by pretrial publicity should be an all-white jury.