"There clearly is a phenomenon going on, although it's difficult to get beyond anecdotal evidence," says Jeffrey Rosen, who teaches at George Washington University Law School in Washington, D.C., and has studied juror hold-outs in that city's courts. "People just don't tell you they had unreasonable doubts based on racial differences. Accounts of what went on during deliberations are all one can go on."
In his look at hung juries in the nation's capital, where more than 70 percent of jurors and 95 percent of defendants are African-American, Rosen found that black women were more prone than black men to hold out for acquitting black defendants--and often found themselves arguing with other black jurors. He says this is so because black women make up a larger part of the eligible jury pool, and the possibility that the defendants remind them of nephews or brothers.
His numbers show that the increase in hung juries in Washington and the nine most diverse counties in California tracks along with the pattern in Dallas--although at more intense levels. Between 1992 and 1996 in Washington, for example, an average of 13 percent of criminal trials ended in hung juries, compared with 5 percent in the late 1980s.
As the numbers increase, several academics have come forth with an intellectual defense of the hold-out juror, especially in drug prosecutions and nonviolent cases. In late 1995, Paul Butler, a law professor and former federal prosecutor wrote in the Yale Law Journal, "I now believe that, for practical and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison."
Butler, who is black, continued: "Considering the costs of law enforcement to the black community and the failure of white lawmakers to come up with any solutions to black antisocial conduct other than incarceration, it is, in fact, the moral responsibility of black jurors to emancipate some guilty black outlaws."
He argues that race-based jury nullification has been going on for centuries. White juries in the South often refused to punish white violence against African-Americans. In the pre-Civil War era, Northern juries with abolitionist sentiments refused to convict escaped black slaves who were prosecuted under fugitive slave laws. And of course, in 1992, a white jury in suburban Los Angeles exonerated a group of Los Angeles police officers who were accused of using excessive force in the beating of black motorist Rodney King.
In Dallas, attorneys' and judges' ideologies seem to color what they think about the increase in hung juries and what's behind it. "You hear prosecutors mumbling about juries being crazier than they used to be, so maybe we should change the law so we'll need only 10 votes for conviction," says Ward Casey, a criminal defense attorney who practices in Dallas and Fort Worth. "I guess they don't want anyone to slip through. Instead of a 95 percent conviction rate, they want 100. With 12-zip, we already do a pretty good job of sending a bunch of folks to prison.
"Do some people go down to the courthouse to hang up juries? Yes. Is it a big problem? I don't think so."
It was a problem for Veronica Chin, the victim's mother and the only one of his relatives who attended the two trials in Criminal District Court No. 4, a newish, well-lighted set of honey-oak benches and chairs on the sixth floor of the Frank Crowley Criminal Courts Building.
"There was so much stress having it go on like that," says the 43-year-old Chin, who sells ties and expensive leather goods at a North Dallas department store. "The prosecutors said they only needed to prove things one way. They proved it three ways."
Chin was the first witness prosecutor Marc Moffitt called. She was there to identify the dead man and say a little about his life and the way he died. Acting on advice of staff doctors at Parkland Memorial Hospital, Chin made the decision a few hours after the shooting to remove her son from life support.
Moffitt, a tall, ruddy man who, from certain angles, looks like a young Robert Redford, led her through the questions quickly and dispassionately. The eight-year veteran of the felony courts was joined by prosecutor Shannon Dodd, a prosecutor for three years, in the second chair. The indigent defendant, who counted a 1981 Monte Carlo as his only possession, was represented by court-appointed attorney Mark Perez, a former Dallas County prosecutor who went into defense work in 1992.