The Confederacy And Jury Selection
By Ed Sebesta and Dr. Euan Hague, PhD

When reading about court cases in Texas where, with the use of DNA evidence, people were being exonerated following convictions for rape we noticed something striking; all these men who had been falsely charged and convicted of rape were African Americans. We are sure readers could supply other examples or studies of erroneous convictions of ethnic minority members and African Americans in particular. One potential action to reduce such convictions, we suggest, must be to exclude potential jurors who would have racial bias when acting as jurors. From my experience in jury pools in Dallas County, Texas, attempts to uncover a juror’s racial bias comprise merely of a single question, given to the potential jurors assembled in a group, asking whether they are members of a white supremacist organization or have a racial bias against African Americans.

This question is entirely inadequate. Jurors have to believe that a person is innocent until proven guilty, and not be people who, when the defendant is African American, tend to think the defendant is guilty until proven innocent. People who are predisposed to think an African American defendant is guilty may be neither aware, nor willing, to admit that they are biased or racist. To many Americans, a racist is someone who wears a white hooded sheet, is belligerent, and says explicitly racist statements and racial slurs. A potential juror may be racially biased, but does not see him or herself as being like the members of these sensationalistic racist groups and sincerely imagines they are not racist and are free of racial bias.

Members of a jury must perceive the freedom of an African American, and the humanity of an African American, as being as important as anyone else’s, not least their own. A juror always needs to have serious concern to avoid falsely convicting someone of a crime and, if the defendant is seen as someone whose freedom is not so important and whose humanity is less, then the juror’s concerns about false conviction surely has to be also reduced.

During voir dire jury selection, potential jurors are questioned by attorneys for both sides in attempt to exclude potential jurors who are biased against their side. Attorneys can ask that a juror to be excluded by a ‘challenge for cause,’ that is, where the attorney can show that there is a reasonable cause for the juror not to be impartial. There is no limit on the number of jurors that can be excluded ‘for cause.’ Additionally, each attorney can, for a certain number of jurors, make a peremptory challenge and exclude them without giving a cause where the attorney suspects there is a bias.

The historical record irrefutably shows that the Confederacy was formed for the purpose of preserving white supremacy and slavery. Such sentiments are expressed is the declaration and resolutions of the seceding states, in the speeches of the leaders of the Confederacy, and in innumerable other sources, typically being expressed in a straight forward manner.

It would be reasonable, therefore, to ‘challenge for cause’ potential jurors identifying with the Confederacy because of their identification with a white supremacist regime that sought to keep in African Americans enslaved. These potential jurors identifying with the Confederacy might object that they would not be biased as jurors, but elements of the pro-Confederate Lost Cause3 mythology inherently lead to bias. One element is that African American slaves were well treated and content as slaves, and that slavery was like being a part of a large family, rather than that it was a grave and often horrific condition. At some psychological level, Lost Cause rationalizations are embraced and accepted because for that individual, an African American’s freedom and humanity are valued less than their own. Contrast Lost Cause beliefs about slavery with Patrick Henry’s famous quote, “Give me liberty or give me death,” regarding the freedom of white people during the American Revolution. This demonstrates how the Lost Cause discounts the value of African American freedom. A potential juror sugar-coating African American slavery in the past through a Lost Cause worldview, will likely not be overly concerned about an African American losing his or her freedom in the present. It is difficult to understand how a person who expresses pro-Confederate views and does not reject Lost Cause myths of slavery, can reasonably and objectively serve on a jury of peers for an African American defendant. Such a potential juror may not perceive African Americans as fully part of the American community, fellow citizens, sharing a common humanity and belonging to a group people that they think of as “us.”4

The ‘challenge for cause’ could simply be done on the historical record of how the Confederacy and its leaders defined their efforts rather than discussing Lost Cause rationalizations. Put simply, these potential jurors have chosen to identify with the white supremacist and proslavery Confederacy. That seems like a more than adequate cause for a challenge. The rejection of jurors on this basis could have a tremendous effect on the composition of juries in the South.

The use of identification with the Confederacy in voir dire jury selection need not be restricted to the South. The CNN poll found that 14% of Northeasterners, 23% of Midwesterners, and 11% of Westerners sympathized with the Confederacy over the Union. Other questions might also be employed. In the Pew poll, among whites who identified themselves as Southerners in the former eleven Confederate states, 22% had a positive reaction when they see the Confederate flag.

Questions regarding the Confederacy should not be restricted to potential jurors. Judges should be questioned and those that identify with the Confederacy be asked to excuse themselves. Public defenders should also be questioned, and those that identify with the Confederacy be understood to be potentially not fully committed to defending their client.

We propose the following series of questions regarding how potential jurors, judges and public defenders view the 19th-Century Confederacy should be used to identify potential racial bias. These provide multiple reasons for challenge for cause and if, for some reason, one or more of these questions were not accepted as a challenge for cause, they could provide information for peremptory exclusions of jurors.

1. Are you a member of the League of the South, Council of Conservative Citizens, Sons of Confederate Veterans, United Daughters of the Confederacy or any other pro-Confederate organization?
2. Do you identify with the Confederacy or the Union?
   
3. Do you think it is appropriate for public officials to praise Confederate leaders? 
4. Do you think it is appropriate when states, counties, cities and other municipalities adopt Confederate symbols in their logos, flags, seals, or other symbols they might adopt?
   
5. Do you think it would have been better if the Confederacy had succeeded in seceding?
   
6. Do you display Confederate symbols such as flags, flag decals, bumper stickers, tattoos or other visual representations of the Confederacy.

Regarding the first question, there may be 40,000 to 60,000 members in neo-Confederate organizations in total. The membership of these groups overlap, and accurate membership numbers are typically not publically available. The Sons of Confederate Veterans (SCV) has over 30,000 members, the United Daughters of the Confederacy publishes a magazine with 6000-8000 copies each issue. Members of these organizations are serving on juries and deliberating the fate of African American defendants. They should not be. Some members of these organizations are judges.

It is outrageous that the descendants of those who fought for slavery and who still choose to glorify the Confederacy should be allowed to judge the descendants of the slaves. It is part of a continuing chain of oppression which goes back to the Confederacy and the plantation and still, to this day, inflicts harm on African Americans. It needs to stop, and asking potential jurors, judges and public defenders about their Confederate sympathies needs to start immediately.

1 CNN Opinion Research Poll, for release April 12, 2011

2 The Pew Research Center for the People & the Press, “Civil War at 150: Still Relevant, Still Divisive”..

3 The Lost Cause refers to a group of historical beliefs held by defenders of the Confederacy such that slaves were contented in the Antebellum South or at least well treated, that secession was over states rights. It also includes a view of Reconstruction as a time of African American misrule.

4 For a discussion how people use language to conceptualize who is included in groups of which they imagine to be a member and who isn’t a member of that group and are the others, see Billig (1995) Banal Nationalism.