Book in Focus
Critical Race Theory and the American Justice System"/>

29th March 2023

Book in Focus
Critical Race Theory and the American Justice System

How Juries Wrestle with Racial Prejudice

By Paul J. Zwier II


In January of 2023 there was an epidemic of shootings. At least two shootings involved the death of a young black man, and both involved the police. One involved the cousin of a Black Lives Matter founder. Minyvonne Burke of NBC News described one of the two incidents in LA as follows:

A cousin of Black Lives Matter co-founder Patrisse Cullors died after a Los Angeles police officer used a taser on him repeatedly following a traffic accident.

The incident happened on Jan. 3 and involved Los Angeles resident Keenan Darnell Anderson. The police department released body-camera video of Anderson's arrest Wednesday.

Police said Anderson was involved in an accident and tried to flee. Cullors said her cousin had flagged down police and was asking for help.

"And not a single time did any of the responding officers listen to him," she said in a phone call.

Anderson, 31, a black man, died at a hospital after he suffered a medical emergency about 4½ hours after he was arrested, Kelly Muñiz, a police spokesperson, said in a video statement.

The situation began around 3:35 p.m. when a Los Angeles police officer was flagged down about a traffic accident, Muñiz said. Witnesses directed the officer to Anderson, who "they indicated had caused the vehicle accident," she said.

The body camera video shows Anderson in the middle of the street. "Please help me," he tells the officer before he runs away.

The officer tells Anderson to "get off to the side," the video shows. In response, Anderson says someone is trying to kill him.

Anderson eventually gets on the sidewalk and puts his hands in the air. "I didn't mean to," he tells the officer.

The officer instructs Anderson to get up against the wall, the video shows. Anderson instead drops to his knees and puts his hands behind his head.

The race of at least one of the LA police involved, the one shown putting his knee on the neck of the victim, was black. It was sadly reminiscent of both O. J. Simpson and the Rodney King case.

The second involved a shooting by police in Memphis, a city of a troubled racial history, but this time all five police, who were later charged with second degree murder, were identified as black. Tyre Nichols died apparently after a brutal beating by the police involved.

In both cases, there are troubling questions as to why the victims died and what role police attitudes towards black victims played in their deaths. In the case of Tyre Nichols, the community was cautioned to remain calm after the release of a video showing Tyre being beaten.

It remains, then, extremely important for the justice system to be able to respond to these cases in a way that provides both due process to the police involved and justice for those who died, as well as their families. How these cases are tried by the prosecutors, the rhetoric they use, the juries they select, and whether they play “the race card” will be closely examined. Will these juries be representative of the community? Will white people be excluded? Will black people be excluded? How will the jury be instructed to evaluate the witnesses on the scene leading up to the videos? Will experts tell jurors of other deaths during police stops?

Jurors will have to sort out how they “use their common sense” in thinking about the black man who died, his testimony of just needing help, and his fear that the police were trying to kill him “like George Floyd.”

My book tries to sort through these issues, drawing on lessons from George Floyd and Ahmaud Arbery and taking seriously the charge that jurors too often exonerate police, perhaps relying too much on their own racial prejudice and fearing black people. I also examine the need for police to be ready to use violence to subdue black people resisting arrest. The book will also caution prosecutors from being made to quit accusations that the police were racially motivated in their use of violence. Even where the police involved are black, some prosecutors may be tempted to invoke the history of racism in the LA and Memphis Police as creating an environment where even black police are especially and overly fearful of other black people involved in traffic stops. Will they use the incidents of other white police to justify the fear that the victim may have had of these police officers?

There is a need for both prosecutors and defendants to appeal to the common vulnerabilities and fears of the parties, as well as to keep the jury securely on track to evaluate the parties based on the evidence. My hope is that my book may help the counsel sort through these issues, and that the public may also benefit from a greater understanding of how the justice system wrestles with racial prejudice.

I wanted to write the book because I was afraid there was no easy way for both lawyers and the public to learn from the experiences of the earlier cases. While lawyers could get access to YouTube videos of jury selection in the Derreck Chauvin/ George Floyd case, it may have been hard for them to get access to the trial transcripts in the Ahmaud Arbery case. I also wanted to remind trial advocacy teachers of the lessons learned from the O. J. Simpson and Rodney King cases about the dangers of too easily playing the race card. In addition, I worry that little has been learned from cases involving the death penalty, especially the “Colorado” method of jury selection that makes its way to the prosecutors trying these cases. Perhaps then, this book might serve as a way for prosecutors to share their jury selection experience to teach jurors about racial prejudice.


Paul J. Zwier II is one of America’s most distinguished professors of advocacy and skills training. He is Director of Emory’s Program for International Advocacy and Dispute Resolution and a Professor of Law, having previously served as Director of Public Education for the National Institute for Trial Advocacy, USA. He has taught and designed public and in-house skills programs in trial advocacy, advocacy in mediation, and expert testimony at deposition and trial for more than 40 years. He is the author of a number of publications, including the books Principled Negotiation on an International Stage: Talking with Evil (2013) and Peacemaking, Religious Belief and the Rule of Law: The Struggle between Dictatorship and Democracy in Syria and Beyond (2018).


Critical Race Theory and the American Justice System: How Juries Wrestle with Racial Prejudice is available now at a 25% discount. Enter code PROMO25 to redeem.

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