Final Thoughts on Black August 2016

Traditionally, during Black August particular attention is paid to the necessity of exercise and self-defense.  This particular emphasis comes from the life or death role those things played within the prison.  In prison, everybody had to watch their back and be able to defend their lives at any moment.  Even the guards were complicit in the chaos by creating situations where Black prisoners would be alone amongst white prisoners which made them vulnerable to attack.  The guards would go so far as to pass real weapons and knives over to the white prisoners.  George Jackson emphasized the importance of martial arts, particularly a style called Iron Palm, so that his comrades could protect themselves against armed assailants – be they other prisoners or the guards themselves.

Although being in good shape and capable of self-defense is important for anyone, and although this is indeed a life preservation skill.  The odds of one being in a situation that requires these skills are relatively small for most of us.  When was the last time someone tried to shank you?  Do you have to watch your back in the shower?  Does someone else have control over the locks to your room or home?  These are things that you probably don’t have to worry about.  So the question that I came to ask myself during this Black August is whether or not the example set by the comrades who developed Black August to engage in self-defense in close-quarters combat is relevant to our current situation on the outside, or should we be focused on other form of “self-defense”.

I pondered this as I visited a study group that followed a showing of Dr. Jared Ball and Bashi Rose’s new production: George Jackson: Releasing the Dragon (a video mixtape).  One of the brothers present posed the question of whether we should start a martial arts group.  Another brother asked what we should be doing to engage our children during Black August so that they will take on this tradition.  I came to a conclusion that, I think, answers both questions.  However, by no means do I intend this writing to provide the only answer to the question presented, but I do offer it as food for thought.

First of all, your martial arts training means jack-shit.  The police are using robots to kill Black people now.  The government’s present (and future) ability to surveil would make J. Edgar Hoover blush.  A generation of kids will be able to use their mastery of video games like ‘Call of Duty’ as a job skill and get paid good money to shoot your Black-ass (or your Arab-Muslim-South Asian ass as the case may be) from behind a computer screen with a drone masquerading as a hummingbird.    These maniacs are developing artificial intelligence and computer chips 10x more powerful than the human brain and no bigger than a quarter.   Add to that the fact that the military (and police by extension) always have first dibs on new technology.  Meanwhile, here we are in our study group talking about martial arts.  We must be out of our minds.

Chairman Mao said that revolution comes out of the barrel of a gun.  Little did he know as he penned those words, the gun was becoming obsolete.  Good luck with your pistol.

We need to be learning computer programming – or more precisely, computer hacking.  The battlefield is digital.  We need to be learning robotics and other forms of technology and biotechnology.  And by we, I really mean our kids.  I’m certainly not about to learn computer programming.  I can barely type.  But these are the kinds of skills that can equip us to protect ourselves in a digital world.  These are the types of skills that can equip us to go on the offensive in a digital world.  Take for example hacktivist groups like Anonymous and platforms like Wikileaks. This is not to devalue other necessary skills that a collective of people need, such as agriculture, medicine, construction trade skills, etc. and yes, hand-to-hand combat and weapons training; this is just to point out that some of us have to stop playing small ball.

Jonathan Jackson attempted one of the most audacious acts imaginable, but what if he could have hacked into the California Department of Corrections database and made some… adjustments?  In 1971, George Jackson wrote that “Revolutionary change means the seizure of all that is held by the 1 percent, and the transference of these holdings into the hands of the remaining 99 percent.  If George were alive today and free, he very well may have tried to figure out how to hack into the banks and make it happen.  Comrade George was about action – practical, well reasoned action… audacious action.  That is one reason that he was so well respected by his admirers and feared by his enemies.


Black August:  On George Jackson and Colin Kaepernick

By @NajiMujahid  #SitWithColin

Black August is a time for us to reflect on the perpetual struggle against racism and white supremacy in this country.  Likewise, it is an opportunity to recommit ourselves to the struggle (or join it, for that matter).  During Black August, one of the things that we do is read the works of George Jackson.  Jackson, a revolutionary theorist, witnessed and experienced some of the worst examples of the inhumanity that this system of federated States is capable of.  This perspective is important lest we forget how vicious the monster is.

On the surface, the differences between Jackson and Kaepernick could not seem more stark.  In 1961, Jackson was convicted for a $70 robbery and sentenced to an indeterminate sentence of one-year to life in prison.  54 years later, Kaepernick would sign a 6-year $119 million contract to play football for the San Francisco 49ers.

At the time of Jackson’s incarceration, there was an active prison movement within the California prison system.  Jackson was introduced to the movement by W.L. Nolan and others and would soon become politicized by them and through the study of revolutionary theorists such as Karl Marx and Franz Fanon.  The prison movement was geared towards advocating for humane treatment within the prisons where it was not uncommon for Blacks to be brutalized and even killed by guards.  In fact, both Nolan and Jackson would eventually be gunned down by prison guards.

45 years following Jackson’s assassination, it remains necessary for a movement to exist that is dedicated to struggling for the protection of Black lives from state sanctioned violence at the hands of state agents.  It appears as though Kaepernick has been inspired by the Black Lives Matter movement, just as Jackson was inspired by the prison movement.

This is significant in light of Jackson’s analysis of the fate of Black leaders.  In his book, Soledad Brother, writing to his lawyer, Fay Stender, Jackson compared the plight of Black people to the plains buffalo, a herd animal, and the manner in which they are hunted.

The great American bison or buffalo — he’s a herd animal, or social animal if you prefer, just like us in that. We’re social animals, we need others of our general kind about us to feel secure…..  Social animals eat, sleep, and travel in company, they need this company to feel secure. This fact means that socialistic animals also need leaders. It follows logically that if the buffalo is going to eat, sleep, and travel in groups some coordinating factor is needed or some will be sleeping when others are traveling. Without the leader-follower complex, in a crisis the company would roar off in a hundred different directions…… The hunter understood this. Predatory man learned of the natural occurrence of leadership in all of the social animals; that each group will by nature produce a leader, and to these natural leaders fall the responsibility for coordination of the group’s activity, organizing them for survival. The buffalo hunter knew that if he could isolate and identify the leader of the herd and kill him first, the rest of the herd would be helpless, at his mercy, to be killed off as he saw fit.

Jackson goes on to discuss why he thinks that those who have achieved success in society tend to be disinclined from speaking out against injustice or joining movements for change.

The potential black leadership looks at the pitiable condition of the black herd: the corruption, the preoccupation with irrelevance, the apparent ineptitude concerning matters of survival…… He weighs this thing that he sees in the herd against the possible risks he’ll be taking at the hands of the fascist monster and he naturally decides to go for himself, feeling that he can’t help us because we are beyond help, that he may as well get something out of existence. These are the “successful Negroes,” the opposite of the “failures.” You find them on the ball courts and fields, the stage…..

George Jackson was assassinated, not so much because of his scathing and insightful critique of our society, but because of his ability to organize and inspire people.  One of the stated objectives of the FBI’s CounterIntelligence Program was to “prevent the rise of a Black Messiah who could unify and electrify the [people].”  Fearless, strong, inspirational, and uncompromising Black leadership is anathema to white supremacy.  

Kaepernick’s refusal to stand for the national anthem and his pointed statements explaining his actions was momentous.  It puts him in the category of John Carlos and Tommie Smith, Muhammad Ali, Jim Brown, Mahmoud Abdul-Rauf, Toni Smith-Thompson and other athletes who took unequivocal oppositional stances against social injustice – racism in particular.  Furthermore, it wasn’t impulsive.  It was calculated and deliberate.  He knows how intimately the NFL is associated with the military.  He knows that that simple gesture may have been career suicide, but he is taking a principled stance anyway.  For that he deserves our support.  

I have many friends in the movement who shun professional sports because of the social distraction that the tend to represent.  It is indeed an indictment against our societal priorities when the Super Bowl is the most watched event on television.  How many people would pay $50 to watch a ball game before they would donate $50 to a political party, or a non-profit, or a homeless person?  How many of us read the sports page first?  How many of us know the various statistics of players and games, but are clueless to the expenditures of the local, state, and national budget?  I get it.  And as “woke” as I may be, I’m guilty of it myself.  I love football.  

However, all of the reasons why one might choose to shun sports are the reasons to support Kaepernick.  Similarly, all of the reasons to cheer for sports are the reasons to support Kaepernick.  He is in danger of losing endorsements and possibly his job because he is taking an unpopular stance.  It’s our job to make it popular; to show that he is not alone and a significant portion of the population appreciates what he did.  Voice your opinion on social media.  Follow @Kaepernick7 on Twitter, like his Facebook page, etc.  Leave positive feedback on the San Francisco 49ers official page.  Support him and chastise others for standing during the anthem.  Might I suggest #SitNextToColin and #WhyAreYouStanding.  If you can afford it, purchase his jersey on the NFL Shop website or other retailers as a boycott in reverse.  Currently, the highest selling jersey is rookie Ezekiel Elliott.  Why? Because he is dynamic and fans are excited about him.  Well, Kaepernick is dynamic and those of us who agree with him should be excited about him.  More importantly, supporting him at this moment may encourage others to take similar stances.

This strategy is applicable to all of our leaders and comrades within the movement.  People are apt to be more fearless when they know that others have their back.  However, too often we fail our leaders and thus, ourselves.  Betty Shabazz and her family should never have wanted for anything after her husband, our “shining Black prince” was assassinated.  But that wasn’t the case.  How many political prisoners have been buried alive and forgotten?  What of the fate of their families?  We have to appreciate the risks that people take when they stand out front.  And although Kaepernick may not be a leader in the Black Lives Matter movement, currently, he is standing (sitting) out front and vulnerable.  Furthermore, at present he has a larger microphone than any of us.  Protecting him now is protecting the movement.  The enemy will attempt to make an example out of him.  So should we.  Let us heed George Jackson and avoid going the way of the buffalo.

When Innocence Isn’t Enough: The Troy Anthony Davis Story


Produced on 11-8-2007 and narrated by Naji Mujahid of the DC Radio Co-op/Peoples’ MEDIA Center, this work is a documentary about the plight of Troy Davis who has been on Death Row in Georgia since 1991; throughout this time he has maintained his innocence. He was convicted with no material evidence and solely on the testimony of 9 key witnesses by the State. However, since the recantation of 7 of them, his case garnered worldwide support and calls for a new trial.

DC Radio Co-op/Peoples’ MEDIA Center, Voices With Vision, Pacifica Radio, Naji Mujahid, Ryme Khatkouda, Thomas Ruffin, Martina Correia, Brian Stevenson, Diane Rust-Tierney, Shujaa Graham, Virginia Davis, Kirsten Bridgeford, and Marcus Garvin.

Special thanks to Free Speech Radio News, WPFW-Pacifica, Monica Lopez, Nathan Moore, and Kalonji Changa.

Music by: Beanie Sigel, Cee-Lo Green, Luci Murphy, Pam ParkerÂ

Please forward this far and wide, post it on your website, download it, copy it, distribute it, play it in part or in whole*.

*As with any journalistic work, give credit to the author; Naji Mujahid of the DC Radio Co-op and Peoples’ MEDIA Center.

Straight ahead,
Naji Mujahid

The Implication of the Stored Communications Act on Digital Forensic Evidence and the Reasonable Expectation of Privacy

Of all of the recent technological developments that have expanded the surveillance capabilities of law enforcement agencies at the expense of individual privacy, perhaps the most powerful is cell phone location tracking[1].  Close to ninety percent of American adults own a cell phone[2].  Such pervasive cell-phone use has caused the way Americans conduct their affairs to evolve.  This ubiquity of cell phone use creates the opportunity for law enforcement to use them as convenient tools for tracking suspects and persons of interest.

In 2011, law enforcement agencies sent nine popular cellular-service providers over 1.3 million requests for customer cellular data[3].  In August of that year, 35 ACLU affiliates filed over 380 public records requests with state and local law enforcement agencies to ask about their policies, procedures and practices for tracking cell phones.  While virtually all of the roughly 250 police departments that responded to their request said they track cell phones, only a tiny minority reported consistently obtaining a warrant and demonstrating probable cause to do so[4].  In most cases, the means by which law enforcement are able to track cell phones is by court order.

Police are then able to obtain call records, text messaging records, data usage information, and historic cell site location information (CSLI).  This information can then be aggregated to develop, with some degree of certainty, the whereabouts of a suspect.  Although the court has previously reached the conclusion that people do not have a privacy interest in their call records[5], there is much debate over the privacy interest inherent in CSLI.

CSLI includes a record of a particular cell phones signal interaction between one or more cell towers (antennae).  When a cell phone is turned on, it sends out signals approximately every seven seconds.  The signals are captured by the cellular network and it includes identifying information about the phone, including location.  When a phone call is made, the cell phone attaches to the tower with the strongest signal which is not necessarily the nearest tower.  During the course of the phone call, cell phone may switch between multiple towers; sometimes even using them simultaneous.  Simultaneous use of multiple towers location can be determined within a geographical area by a process of ‘triangulation’[6].

The reliability of this information in providing an accurate approximation of a suspect’s location can and should be interrogated from one case to the next.  This paper does not discuss the reliability of CSLI, rather this paper will discuss problems related to admissibility; particularly whether or not the current procedure for obtaining this information violates the privacy protections of the United States Constitution.




This paper will discuss the impact of 18 U.S.C. § 2703, the Stored Communications Act (SCA), on the use of digital forensic evidence  in criminal proceedings.  The SCA is the codification of Title II of the Electronic Communications Privacy Act of 1986[7] (ECPA).  Title II addresses access to stored wire and electronic communications and transactional records. It’s purpose is to protect privacy interests in personal and proprietary information while protecting the government’s legitimate law enforcement needs[8].

Our discussion primarily relates to Section 2703 of the SCA which describes the conditions under which the government is able to compel a digital service provider, such as the internet or telecommunications companies, to disclose “customer or subscriber” content and non-content information for the various types of service.  These services include GPS, cell site location information (CSLI) such as historical cell-site data, cloud services, and social media content.

  • 2703 provides the authorization for a “government entity” to seek disclosure from an “electronic service provider” of “electronic communications” that are in “electronic storage”. §2703 differentiates between information that has been stored for more or less than 180 days. Information that has been stored for less than 180 days can only be obtained “pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction.”[9]

As for information that has been stored for more than 180 days, probable cause is not necessary and can be obtained through subpoena or court order “only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”[10]  This is essentially a reasonable suspicion standard[11].  The requirements for the information necessary to obtain a court order are found in subsection ‘d’ of 18 U.S.C.A. § 2703.  Hence, they are often referred to as ‘d-orders’.




On occasion, requests for d-orders have been challenged by the courts.  A notable and recent example is In re Application of the United States for Historical Cell Site Data where the court was “called on to decide whether court orders authorized by the Stored Communications Act to compel cell phone service providers to produce the historical cell site information of their subscribers are per se unconstitutional[12].”  The 5th Circuit Court held to the contrary, whereas the lower district court and the magistrate had concluded that the request for a d-order could be denied based on an interpretation of the SCA that gives the judge discretion to deny the request and on their belief that § 2703 is unconstitutional regarding the absence of a probable cause standard.

The issues raised by parties involved boil down to a Katz[13] analysis; whether or not the defendant had a “reasonable expectation of privacy”.  The Circuit Court allowed the amici participation of the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF).


The Government and the ACLU focus their analysis of the constitutionality of the SCA as applied to historical cell site data on distinct questions. The ACLU focuses on what information cell site data reveals — location information — and proceeds to analyze the § 2703(d) orders under the Supreme Court’s precedents on tracking devices. In contrast, the Government focuses on who is gathering the data — private cell service providers, not government officers — and analyzes the provision under the Court’s business records cases.[14]


The issue raised by the ACLU is that that historical CSLI allows the government to compile an intrusive view into their target’s whereabouts and that those whereabouts may be such that a reasonable expectation of privacy exists.  This is distinguished from the reasoning in United States v. Jones[15]. In Jones, the Supreme Court reasoned that a tracking device did not violate the 4th Amendment so long as the vehicle being tracked was observable by the naked eye; in other words, there is no expectation of privacy on a public street, and therefore observation of a target on a public street does not offend their reasonable expectation of privacy.  Furthermore, they reasoned that the tracking device simply enhanced their ability to follow a target.

The government’s view in this case implicates the third party doctrine.  Specifically that by using a cell phone, whether for calling, texting, or using the internet, we knowingly expose our usage to the service provider and thereby eliminate any reasonable expectation of privacy regarding that information.  Despite the 5th Circuit Court siding with the government, these issues have been raised in other Circuits and the results have not been uniform.

Recently, in United States v. Davis[16], 754 F.3d 1205 (11th Cir. June 11, 2014), the 11th U.S. Circuit Court of Appeals held that police also must obtain a warrant for cell site information from wireless phone companies.  In 2011, the 3rd Circuit rejected the conclusion that probable cause was required for all historical cell site location information, but concluded that the statute leaves magistrates discretion to require probable cause when circumstances deem it necessary[17].

The 5th Circuit reached a different result in 2013. It agreed with the 3rd Circuit that the issuance of § 2703(d) orders for historical cell site information is not per se unconstitutional, but concluded that such information is a business record; the third party doctrine applies, and magistrates have no discretion to decline to issue a Section 2703(d) order when the appropriate showing has been made[18].

Finally of note is a 6th Circuit Decision, United States v. Warshak.  In that 2010 case, the court ruled that law enforcement must have a warrant, not just a d-order, to compel a telecommunications provider to disclose the contents of a customer’s email.  To the extent that the Stored Communications Act provides otherwise, the 6th Circuit held that the statute is unconstitutional.

In addition to these disparate decisions on the federal level, state courts have also grappled with whether or 2703 (d) violates the constitution and whether or not judicial discretion regarding compliance can be implied.  However, for the most part, lower courts have accepted the government’s use of a D Order to compel historical cell site information[19].  A resolution to these discrepancies may be forthcoming in US v. Davis.  The decision in Davis was a panel decision and a government petition for an en banc decision was granted.  The prior decision was therefore vacated[20].  Since then, four cases have declined to follow the rationale of the prior holding:

  1. Although the Tenth Circuit has not decided whether 2703(d)‘s “reasonable grounds” standard is constitutional, the Court concludes that the Tenth Circuit would not adopt the reasoning in Davis. The Eleventh Circuit’s recent order vacating the decision to rehear the case en banc shows that the soundness of Davis’s holding is subject to question within even that circuit. Instead, to determine the constitutionality of § 2703‘s “reasonable ground standard,” the Court follows the Fifth Circuit’s analysis…[21]
  2. In light of U.S. Supreme Court precedent, and the application of the business records/third-party doctrine by the Fourth Circuit, the Court finds that Giddins’s Fourth Amendment rights were not violated when the government obtained his cell site location data pursuant to a court order under § 2703(d)[22].
  3. [Davis], deemed electronic location evidence as personal effects that an individual has a reasonable privacy interest in. However, it is important to note that the Davis decision has been withdrawn… Thus the Davis opinion does not presently support or even offer persuasive authority for the Defendants’ arguments[23].
  4. In support of this argument[24], Ford directs the court to authority for the proposition that an individual placing or receiving a call on a cell phone has not voluntarily exposed their location information. See United States v. Davis… The Fifth Circuit, responding to the same argument raised by the ACLU in S. for Historical Cell Site Data, rejected Ford’s position outright. We agree with the Fifth Circuit’s conclusion[25].

Justice Sotomayor recognized the narrow view necessary for the Court to reach their decision in Jones[26], however, her concurring indicates her opinion that the Court may need to expand its notions of privacy in the wake of the technological developments since the SCA was enacted in 1986.  Her opinion in this regard is worth quoting at some length:

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on… I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power and to prevent “a too permeating police surveillance,” … More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties… This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks… But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.[27]

The Court may well have an opportunity to consider these issues in the near future.  No matter what the outcome of the en banc hearing in Davis, the decision will most likely get appealed up to the Supreme Court.




In recent years, prominent judges have, in written opinions, described and voiced concern over the harms associated with modern location tracking technologies. In doing so, they have suggested that Congress, not the judiciary, might be in the best position to provide appropriate incentives and remedies[28].  This is easier said then done.  In recent years, there have been four bills introduced that have attempted to reform geolocation privacy standards.

The bill most notable regarding this discussion is the Geolocation Privacy and Surveillance Act of 2013[29]The GPS Act seeks to establish a legal framework that gives government agencies, commercial entities, and private citizens clear guidelines for when and how geolocation information can be accessed and used.  The bill would create a process whereby government agencies can get a probable cause warrant to obtain geolocation information in the same way that they currently get warrants for wiretaps or other types of electronic surveillance.  In addition, the GPS Act would prohibit businesses from disclosing geographical tracking data about its customers to others without the customers’ permission[30].  Unfortunately, the bill has not been reintroduced.

The more recently introduced bill, the Location Privacy Protection Act of 2014 would prohibit companies from collecting or disclosing geolocation information from an electronic communications device without the user’s consent to private parties[31].  It does not discuss any barriers to law enforcement acquiring this information.  This issue is central to the GPS Act.  Rep. Chaffetz testified at a subcommittee hearing that he introduced the GPS Act because “the government and law enforcement should not be able to track somebody indefinitely without their knowledge or consent or without obtaining a probable cause warrant from a judge.[32]




Cell phone use will most likely continue to proliferate.  Along with that there will be new gadgets and electronics that gather location data (and biometric date, for that matter) and the need for reform with regard to government access to this data will only multiply.  Eventually this issue will reach the Supreme Court and I predict that the Court will err on the side of a more expansive notion of the 4th Amendment to complement the more expansive capabilities of the government to intrude.  A final question that will need to be answered in the event that this prediction comes to pass, is whether or not the decision would be retroactive with regard to “harmful error” and require new trials.

Regarding the GPS Act, the House version only acquired 20 co-sponsors and the Senate version had only 1.  This lack of support probably contributed to the bill not being reintroduced.  If those figures are indicative of the Congressional interest in protecting the privacy interest of Americans in their CSLI (and other data), not much protection can be expected.





[3] Id.


[4] (Accessed December 24, 2014)


[5] “there is no constitutionally protected reasonable expectation of privacy in the numbers dialed into a telephone system” Smith v. Maryland, 442 U.S. 735, 738, 99 S. Ct. 2577, 2579, 61 L. Ed. 2d 220 (1979)


[6] COMMENT: Can You Find Me Now? The Federal Government’s Attempt to Track Criminal Suspects Using Their Cell Phones, 43 Ariz. St. L.J. 591, 596-597.


[7] Author’s note:  ECPA was itself the codification of the wiretap provision of the Omnibus Crime Control and Safe Streets Act of 1968 (OCCSSA).  The OCCSSA was enacted as a government response to the urban rebellions that had been occurring spontaneously across the country as a response to police brutality.  Additionally, the FBI and other police agencies were already using wiretaps and against individuals and groups that were considered subversive, such as Martin Luther King Jr.  The wiretap provision created a legal framework for them to do what they had already been doing.


[8] ¶ 14,140 Electronic Communications Privacy Act Of 1986, 2009 WL 3960253. Guide to Computer Law.


[9] 18 U.S.C.A. § 2703 (West)


[10] Id.


[11] In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 287 (4th Cir. 2013)


[12] In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 602, 2013 U.S. App. LEXIS 15510, 1-2, 58 Comm. Reg. (P & F) 1292, 2013 WL 3914484 (5th Cir. Tex. 2013)


[13] My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’  Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576 (1967).


[14] Id. at 608


[15] In [United States v. Jones, 132 S. Ct. 945, (U.S. 2012)], the Supreme Court found that that the government had conducted a search within the meaning of the Fourth Amendment when its investigators installed a GPS device on a suspect’s car and tracked his location monitoring for a twenty-eight day period. 132 S.Ct. at 949. The majority opinion did not find a general expectation of privacy in location data, but instead relied on the fact that government agents had committed a trespass against the suspect’s effects when they placed a GPS device on his car (the “trespass theory”). Id. at 952. Justice Alito, joined by four other justices, wrote a concurrence that relied exclusively on a privacy theory. Id. at 958 (Alito, J., concurring) (analyzing the issue “by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove”). Justice Sotomayor, who concurred separately, discussed the possibility of applying a more generalized “privacy theory” to electronic location data but ultimately relied on the trespass theory “because the government’s physical intrusion on [the defendant’s] jeep supplies a narrower basis for decision.” Id. at 957 (Sotomayor, J., concurring).  United States v. Banks, No. 13-CR-40060-DDC, 2014 WL 4594197, at *2 (D. Kan. Sept. 15, 2014).


[16] Decision overturned; discussed infra.


[17] By Marcus A. Christian, Recent Decisions Restrict Law Enforcement Access to Cellphone Information: Are More on the Way?, 28 Westlaw Journal White-Collar Crime 2 (2014)


[18] Id.


[19] Stephanie K. Pell & Christopher Soghoian, Can You See Me Now?: Toward Reasonable Standards for Law Enforcement Access to Location Data That Congress Could Enact, 27 Berkeley Tech. L.J. 117, 143 (2012)


[20] United States v. Davis, 573 Fed. Appx. 925, 2014 U.S. App. LEXIS 17111, 2014 WL 4358411 (11th Cir. Fla. 2014).


[21] United States v. Banks, No. 13-CR-40060-DDC, 2014 WL 4594197, at *3 (D. Kan. Sept. 15, 2014).


[22] United States v. Giddins, No. CRIM. WDQ-14-0116, 2014 WL 4955472, at *10 (D. Md. Sept. 30, 2014)


[23] United States v. Rogers, No. 13 CR 952, 2014 WL 5152543, at *3 (N.D. Ill. Oct. 9, 2014)


[24] In the dissenting opinion, Judge Chapa wrote: I agree with the Third and Eleventh Circuits and conclude that “a cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way.”  I would therefore hold that Ford did not voluntarily surrender his reasonable expectation of privacy in his physical location and movements simply by using his cell phone. Because the State did not secure a warrant before obtaining the historical cell site data from Ford’s cell phone provider, Ford’s Fourth Amendment rights were violated, and the trial court should have granted his motion to suppress.


[25] Ford v. State, 444 S.W.3d 171, 189-90 (Tex. App. 2014), petition for discretionary review filed (Oct. 15, 2014)


[26]“the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision.”  United States v. Jones, 132 S. Ct. 945, 957 (U.S. 2012).

[27] Id.


[28] Stephanie K. Pell & Christopher Soghoian, Can You See Me Now?: Toward Reasonable Standards for Law Enforcement Access to Location Data That Congress Could Enact, 27 Berkeley Tech. L.J. 117, 164 (2012)


[29] On March 21, 2013, Senators Ron Wyden (D-OR), Mark Kirk (R-IL), and Congressman Jason Chaffetz (R-UT) reintroduced the legislation for the 113th Congress.


[30] (Accessed December 24, 2014)


[31] Id.


[32] Article: Stopping Police In Their Tracks: Protecting Cellular Location Information Privacy In The Twenty-First Century, 12 Duke L. & Tech. Rev. 200, 215

Protecting the Interests of the Community by Localizing the Jury

By Naji Mujahid[1]

ABSTRACT: In the wake of the high-profile non-indictments of the police officers involved in the Michael Brown and Eric Garner cases, the structure of the judicial system has been brought into question. Both legal minds and lay people were confused and outraged by the failure to hold police officers accountable. There are many possible reasons for these unfavorable grand jury decisions, one of which is the breadth of the jury pool. The American legal system guarantees that the jury reflects a “fair cross-section of the community”; and this article will interrogate the meaning of “community” and argue that creating jury pools from such large areas as entire counties or states is over-broad. Instead, juries should be localized–comprised of citizens from the same area where the alleged offense occurred. Such a construct creates a system of community justice as a localized jury will have more insight into the situations before them, more of a stake in a just and equitable outcome, and a jury composition that actually reflects the community involved (i.e., black community = black jury).  Indeed, the jury is the guardian of the public trust and the voice of the community’s values inside a legal system dominated by lawyers and judges[2].



The origins of the American criminal justice system are found in English common law.[3]  Throughout its existence, it has been a tool of white supremacy, capitalism, and patriarchy. Pontifications of fairness have been belied by pronounced injustice and inequality.  The phrase ‘The White man speaks with a forked tongue’, an observation often attributed to the Native Americans, eloquently characterizes the decrees of lawmakers and judicial officers alike who have been comfortably tone-deaf to the blatant hypocrisy of their own language. Take for example the immortal declaration that “All men are created equal.”[4]  Thomas Jefferson penned those words during the height of slavery and within the same document, would go on to equate the King’s support of slave insurrections as an example of tyranny[5], and justification to rebel for American independence.

The analysis above provides a contextual framework within which the actual subject matter of this article can be considered. In reading American jurisprudence, one must be hyper-aware that the language used may not always be practically applied. For instance, “all”, when practically applied, often means ‘some’ at best and ‘a few’ at worst. Racial minorities, women, and the poor have historically been politically invisible and therefore excluded from language that confers political rights. This invisibility coupled with the application of what appears to be objectivity creates a dangerous camouflage for insensitivity to or deliberate disregard of the needs of suspect classes and minority groups.

Indeed, attempts to avoid the role that race plays in a given situation has the potential to do more harm than good because it denies the social reality that exists.  Cynthia Lee’s analysis of the trial of George Zimmerman[6] provides a perfect example[7].  There she argues that the prosecution’s efforts to have a “colorblind” trial allowed the implicit bias of the jurors to rule the day.  These mistakes, as well meaning as they may be, can be avoided, but acceptance of the facts is the first step.  The fact is, there has been a significant amount research conducted on racial discrimination by jurors and Jerry Kang and colleagues point out that “the general research consensus is that jurors of one race tend to show bias against defendants who belong to another race (“racial outgroups”). For example, White jurors will treat Black defendants worse than they treat comparable White defendants… [recent research has also shown that] the fact that a juror was of a different race than the defendant influenced  both verdicts and sentencing.”[8]

Kang goes on to suggest various countermeasures to guard against implicit juror bias.  One of those suggestions, described as the “second-best” option supports the focus of this article.  That being the diversification[9] of the jury and deliberate efforts to ensure that Black people are represented. Kang, relying on the research of Sam Sommers, concludes that “racial diversity in the jury alters deliberations… Simply by knowing that they would be serving on diverse juries (as compared to all-White ones), White jurors were less likely to believe, at the conclusion of evidence but before deliberations, that the Black defendant was guilty.”[10]

Towards the end of diversifying the jury, this article concerns the matter of representative jury composition and suggests a method that can increase the chances of petit juries[11] truly reflecting their respective communities. The Supreme Court has interpreted the Sixth Amendment to require only the opportunity to have a representative jury. Specifically, that the jury venire be composed of a “fair cross-section”[12] of the community from which it is drawn[13].

In an objective sense, this may seem reasonable, because unfortunately, it may be practically impossible to guarantee a truly representative petit jury for every trial. However, the insensitivity of this objectivity is exposed when one considers that as the majority demographic in this country, white Americans, are insulated from the cruelty of chance that may deprive them of a jury of their peers. Indeed, the chance of a white defendant being confronted with an all-black jury is so unlikely as to make it a ridiculous thought.[14]

The reality that minority groups and suspect classes are the ones at greater risk of having an unrepresentative jury, should be a central consideration in working towards a solution. Different ideas have previously been proposed[15] and some creative strategies have previously been employed[16] to ensure that the jury pool is representative of the community from whence the accused came, but none have yet been successful. The solution being offered here is deliberately simple: localize the jury pool by shrinking the vicinage.

This is not a novel concept[17]. In fact, “the United States Constitution expressly mandates the provision of local juries in Article III[18] and the Sixth Amendment.[19]  While the venue provision in Article III requires that all criminal trials be within the state in which the crime was committed, the Sixth Amendment requires criminal trial “by an impartial jury of the State and district wherein the crime shall have been committed.”[20] This clause, known as the vicinage provision, and its meaning, have gone through many rounds of debate regarding how to define and apply it.

Part I of this paper will discuss the historical debate surrounding the concept of vicinage as it should be applied to American jurisprudence. Part II will discuss the function that the jury is suppose to play as part of the democratic institution and the concept of community as it relates to the right to have a jury (pool) that represents a “fair cross-section” of the community. Part III will contextualize the failure of the jury to perform the functions outlined in Part II in the high profile case of the Michael Brown grand jury. Finally, Part IV will elaborate on the application of the presented solution and offer the conclusion.


The term ‘vicinage’ refers to the prospective jurors within the vicinity of an offense[21]. The process of producing a jury, including the geography of the vicinage, is different from state to state. The trial jury in either a civil or criminal case is chosen from a list called a venire, or jury pool, that has been compiled by the court[22]. The method of selecting names for the venire varies. In many states, the list is compiled from voter registration rolls and/or drivers license lists. In some jurisdictions, the federal and state courts use the same lists for a given area. The jury pool is sometimes compiled with the help of jury commissioners appointed by the presiding judge[23]. Jurors are then chosen (summoned) at random from the jury pool of the district in which  that court has jurisdiction. For instance, if it is a county court, the jurors will come from that county[24].

The English common law concept of drawing a jury from the area of the crime expected that the jury would have personal knowledge of the situation, perhaps even personal knowledge of the defendant, and that the jurors would also engage in their own investigation[25]. Essentially, jurors were working on behalf of the Crown to get to the bottom of an issue[26]. In the American colonies, the jury evolved to relinquish its direct connection and responsibility to the Crown and instead ” became a buffer between the accused and the government.”[27] Although the use of juries drawn from the vicinity of the crime was not uniform throughout the American colonies, the institution of the jury system was so meaningful to the colonists that British interference with the vicinage rights contributed to the desire for American independence.

Despite the colonial diversity of practice concerning the use of petit jurors drawn from the vicinity of the commission of the crime, when Parliament passed the various venue acts which permitted trial in another province or in England, the colonists consistently attacked these venue statutes as depriving the accused of a trial by his peers from the vicinage of the crime. … Again, in light of the actions taken by Parliament, the colonial history with respect to trial by a jury of the vicinage, and the protests about that right being violated, it is not surprising that another grievance specifically listed in the Declaration of Independence read: “For depriving us in many cases, of the benefits of Trial by Jury.”[28]

Indeed, Patrick Henry once asked and answered the rhetorical question “Why do we love this trial by jury? … Because it prevents the hand of oppression from cutting you off!”[29]

Following the American Revolution, the former colonies continued to progress through the growing pains of independence. It was during the Federal Constitutional Convention of 1789 that the current manifestation of the jury trial, particularly with regard to the vicinage provision, took shape. “Both proponents and opponents understood that a jury of the vicinage would be different from a jury from any-where else with respect to each of the three major functions performed by a jury: finding the facts, applying the law to the facts, and serving as the conscience of the community.”[30]

At that time it was considered important to some proponents of the vicinage that jurors would have personal knowledge of the accused, the accuser and witnesses, and of the crime itself. Opponents of a vicinage provision were concerned that a juror with such familiarity with the case might not be impartial. Indeed, the process of voir dire[31] and the Constitutional right to an impartial jury mitigates this concern today. Today, a juror with personal knowledge of any of these things would most likely be stricken from the jury for fear of impartiality; especially if that juror had already formed an opinion. Nevertheless, at least one of the arguments made regarding the superior fact-finding ability of vicinage jurors is that they will be best able to understand subtleties such as “mannerisms, colloquialisms, and fashions of the participants”[32], as well as facts related to the setting and location.

Regarding the application of law to facts, Thomas Jefferson once wrote: “Were I called upon to decide, whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of laws is more important the making of them.”[33] It was considered that the accused deserved the privilege to not be subjected to a loss of liberty (or for that matter, life and property) without the unanimous[34] consent of his/her own community.

Similarly, it was considered that the community had a right to participate in the resolution of alleged law-breaking within their midst. This goes to the notion of jury duty being a civic duty and a direct way for popular participation in law-making. “If jurors were chosen from the place of the commission of the crime, jurors from the community affected by the crime would apply the law to the facts of the particular case. Local communities, through their juries, would thereby be able to “make” the criminal law for their community. Local responsibility for setting community standards, for defining what conduct was considered criminal within that community, would be encouraged.” [35] This “applying of the law” naturally compliments the idea that the jury should be the conscience of the community.

Ultimately, a compromise was reached that balanced the agreement that a vicinage provision should exist, with the disagreement about how it should be applied. The Sixth Amendment use of the word “district” rather than state, county, town, or some other iteration of a locality is deliberately amorphous. It allows the state or local government the flexibility to create judicial districts that fit the need of the community. Combined with the venue provision of USC Article 3, Section 2, Clause 3,[36] the judicial system attempts to assure that jury trials and the jury pool are kept within relative proximity to the commission of the crime. However, when this was established, the states were less populous and diverse. Furthermore, the need to assure minority representation and participation was not an issue to be considered.

In order for the conscience of the minority communities to actually be given influence, their representation and participation in juries must be assured. In order for this to happen, their conscience must not be diluted with the conscience of the larger society. To the extent that such dilution occurs, it has the potential to be a neutralizing influence such that only a façade of equality remains.

  • It’s just like when you’ve got some coffee that’s too black, which means it’s too strong. What do you do? You integrate it with cream; you make it weak. But if you pour too much cream in it, you won’t even know you ever had coffee. It used to be hot, it becomes cool; it used to be strong, it becomes weak. It used to wake you up, now it puts you to sleep.[37]

As Thomas Jefferson recognized[38] , the import of juror participation is more precious than voter participation.[39] The jury and its role as a buffer between the accused and the government is expected to be a shield against oppression, tyranny, and injustice. In order for this buffer to be effective, juries must adequately represent minority communities.


“Since it was first recognized in [the] Magna Carta, trial by jury has been a prized shield against oppression, but, while proclaiming trial by jury as “the glory of the English law,” Blackstone was careful to note that it was but a “privilege.”  Our Constitution transforms that privilege into a right.”[40] The clause was clearly intended to protect the accused from oppression by the Government[41]. It is understood that the purpose of a jury is to guard against the exercise of arbitrary power; to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor; and in preference to the professional, over-conditioned, or biased response of a judge.[42]

As it is written, the Sixth Amendment does not guarantee the jury to represent the conscience of the community, it simply grants the right of an impartial jury. The Court has  “interpreted the Sixth Amendment’s right to an impartial jury as requiring that the venire from which the jury is selected represent a “fair cross-section’ of the community.”[43] The Supreme Court, in Taylor v. Louisiana, held that “the selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial.”[44] The Court found that a process that failed to comport with the cross-section requirement lost the purposes of the jury. These purposes are: (1) to “guard against the exercise of arbitrary power;” (2) to preserve “public confidence in the fairness of the criminal justice system;” and (3) to uphold that the ideal that “sharing in the administration of justice is a phase of civic responsibility.”[45] The Court also relied on the language in Ballard,[46] where Justice Douglas had stated that “a flavor, a distinct quality is lost if either sex is excluded.”[47] Similarly, a distinct flavor or quality is lost if cognizable groups, such as racial minorities, are missing.

The ‘fair cross-section’ consideration was developed with the idea of integrating a typically white-male jury and addressing the issue of systematic exclusion. The Court in Duren v. Missouri[48] enunciated the test for establishing a “fair cross-section’ violation. The defendant must make a prima facie case, demonstrating three facts: (1) the alleged exclusion affects a “distinctive group;” (2) the number of members from the group is unreasonable in proportion to the number in the community; and (3) the underrepresentation is the result of “systematic exclusion.”[49] If the prima facie case is made, the state must then show that the exclusion serves a significant state interest.

The issue being addressed here has less to do with a systematic exclusion, and more to do with a developing a solution for the underrepresentation of Black people on juries regardless of the reasons for it. Underrepresentation may occur in different places and/or for different reasons. With respect to the fair-cross section requirement as a response to underrepresentation on juries, past cases have typically (but not exclusively) concerned either women or Black people. Therefore, having a fair cross-section could be interpreted as having a jury of people other than white males. Also, the idea of underrepresentation should be considered with the reciprocal value of overrepresentation. In other words, if African-Americans are underrepresented, this means that whites are overrepresented. The present solution under discussion aims to address this issue. If the jury venire is localized, there is less chance that white people will be overrepresented in matters that primarily concern the black community.

The word community, like the word district discussed supra, is an amorphous and undefined area. Either word can be applied to an entire state, county, ward, town or even a particular side of town. These various areas may have interests that are widely shared, interests that are competing, or interests that have nothing to do with the other. As it relates to juries, the fair cross-section requirement is to be applied to the vicinage. However, there is no requirement as to how large or small the vicinage is supposed to be. It can be expanded or limited as necessary.


Figure 1


Using Figure 1 as an example, consider this an entire district. The Upper Left (UL) quadrant of the district is a majority (not exclusively) black area. The other three quadrants are majority (not exclusively) white. If a crime occurs in UL and the vicinage is drawn from the entire district, the most that a defendant from UL can hope for is 3 jurors from UL on average, sometimes more. However, it is mathematically more likely that it would be less. To the extent that the quadrants are separated on racial lines, the majority black quadrant is unlikely to have a majority black jury. On the other hand, no matter where a crime occurs, the jury is most likely to be majority white; sometimes it may even be entirely white. However, if the vicinage is adjusted such that the district is divided into four components and the vicinage for crimes that occur in UL are exclusively drawn from UL, the jury composition will change immediately and dramatically. More importantly, this could be done without violating the Equal Protection clause of the Fourteenth Amendment, or the Sixth Amendment right to an impartial jury[50].


The Michael Brown homicide in Ferguson, Missouri, provides an exemplary case study. The City of Ferguson sits within St. Louis County. The demographic population of St. Louis County is 24 percent black and about 68 percent white. The population of Ferguson, on the other hand, is approximately the inverse: 67 percent black and 29 percent white[51]. In Missouri, the jury pool comes from the county, not the city, and as it turned out, the petit grand jury of 9 whites and 3 blacks roughly reflected the county demographics. However, if the jury pool was localized to the City of Ferguson, it is numerically more likely that the jury would have reflected the demographics of Ferguson, rather than St. Louis County. Had that been the case, there is no way to know if the outcome would have been different, but the jury’s decision may have been better informed and received, thus contributing to public confidence. Even if one believes that the link between diverse juries and impartiality is tenuous, this second aspect of institutional legitimacy is incontrovertible: “confidence in the criminal justice system rests as much on the appearance of fairness as on the delivery of “accurate” results. [T]he public is more likely to question the accuracy of verdicts when a non-representative tribunal delivers them, especially when the issues are controversial or the crime is race-related.”[52]

Recalling the holding in Taylor, the Court found that the purposes of the jury were lost by a process that failed to comport with the cross-section requirement: (1) to “guard against the exercise of arbitrary power;” (2) to preserve “public confidence in the fairness of the criminal justice system;” and (3) to uphold that the ideal that “sharing in the administration of justice is a phase of civic responsibility.”[53] Regarding point one, the Michael Brown case involved a grand jury, which unlike a jury trial is a prosecutorial driven secret proceeding where the jury hears the testimony of the prosecution’s witnesses in the defendant’s absence, allowing them no opportunity to confront the witnesses against them. Under these circumstances, prosecutors typically have no difficulty getting the indictments they seek. If the federal grand jury is any indication of what transpires at the state-level, prosecutors get their indictments at a rate of 16,000 to 1. According to the FBI’s Bureau of Justice Statistics[54], U.S. attorneys prosecuted 162,000 federal cases in 2010, with grand juries returning an indictment on all but 11 of them. With such power and influence over the process, the importance of the jury as a “hedge against the overzealous or mistaken prosecutor” cannot be underestimated.[55]

It has been well documented that blacks are statistically less likely to trust police than are whites; a recent Gallup Poll[56] provided evidence of this fact. It found that overall 57 percent of Americans trust the police in their neighborhoods. This includes more than 60 percent of whites and exactly 57 percent of Hispanics. That number falls dramatically, however, within the Black community, where just 34 percent feel confident in the police. In urban communities, blacks feel even less comfortable with their law-enforcement agents. Just 26 percent of African-Americans living in big cities say they trust the police. In 2014, it was observed that “lack of faith [in the police] ha[d] become kinetic following the grand jury decisions in Ferguson and in Staten Island, N.Y., not to indict police officers in the death of Brown or in the July choke-hold death of Eric Garner.”[57]

Because many of the high-profile racial incidents involving police have occurred in urban settings, blacks living in and around big cities may be more sensitive to these tensions with police than blacks living in non-urban areas. It is possible that these high-profile events were not isolated incidents but more extreme examples of ongoing and widespread tensions between police and blacks, which many urban blacks may experience firsthand[58]. In the particular case of Brown, the lack of African-Americans on the grand jury may have been a critical to the outcome. Although the crime occurred in the City of Ferguson, the jury venire was drawn for the larger, whiter county of St. Louis, thus diluting the sensibilities of the affected Black community. To the extent that this dilution is significant enough to neutralize the concerns of minority groups, the aforementioned function of the jury as a means to share in the administration of justice as a civic duty becomes meaningless.


Presently, the population of the United States is as high as it has ever been and just over 80 percent of the population lives in an urban environment.[59] Such high concentrations of people mean that the area from which a vicinage is drawn can be smaller, yet not over-burdensome for the population, and still be sufficient. A smaller vicinage potentially creates a community-centered jury. Areas that identify a problem with underrepresentation or overrepresentation of a particular group(s) can redraw their jural districts based on zip code, ward, or townships as the case may be. Such action is at the discretion of the legislature and is not an exclusionary effort, but rather, a balancing effort. As shown in Figure 1, white people who live in the UL area would not be excluded from jury service if the jural districts were divided into the four quadrants.

The consideration here is not simply an issue of black and white. It’s an issue of recognizing that black and white communities often have divergent interest or different matters of principal concern. One of those issues was raised above and has to do with public confidence in the police department. Another issue is the disparity between police violence[60] and the lack of accountability that goes along with it. Police kill with relative impunity and the lives taken are disproportionately black lives; a ratio of almost 30:1 compared to their white counterparts. “[T]he 1,217 deadly police shootings from 2010 to 2012 captured in the federal data show that blacks, age 15 to 19, were killed at a rate of 31.17 per million, while just 1.47 per million white males in that age range died at the hands of police.”[61] Jury verdicts and indictments favoring the officer(s) do not inspire confidence in the judicial system (in fact, the opposite can be said); particularlu when few, if any, members of the affected community are present on the jury.



            In the beginning of July 2015, a jury selection process began for the trial of Randall ‘Wes’ Kerrick, a white police officer who is on trial in Charlotte, North Carolina, for the 2013 killing of Jonathan Ferrell, an unarmed Black man[62]. I was present for parts of it, and I watched as the few Black people that were summoned provided responses during voir dire that had the intended or unintended consequence of having them easily excluded from jury duty. I wondered how many times, in courthouses all around the country, an all-white jury has been seated because of potential black jurors making themselves easy targets for being stricken for cause[63].

            After speaking with criminal defense attorneys in Washington, District of Columbia, Baltimore, Maryland, and Charlotte, North Carolina, as well as sitting in on jury selections, a common problem is present: many of those who respond to jury duty do not want to be there and search for reasons to be excluded. This is not a problem that is drawn on racial lines[64]. Indeed, people across the demographic spectrum seek to avoid jury duty[65]. However, because of the underrepresentation of some groups, such as Black people, it is especially damaging to the interests of the Black community when Black people compound the problem of underrepresentation by avoiding jury service. A jury pool that is under-representative of Black people is one problem, but the problem of Black people avoiding jury duty when summoned is another.

In addition to the issue of deliberate avoidance is the issue of jurors making admissions to voir dire questions that expose “bias”. For example, some questions might be related to trust of law enforcement. As noted above, Black communities are typically least trusting of law enforcement; therefore, voir dire questions related to that lack of trust might serve as proxy questions to remove blacks from juries in a constitutionally acceptable way[66]. Potential Black jurors must learn to answer voir dire questions in a way that does not make them easily stricken for cause. One of the purposes of voir dire is to uncover bias within the potential jurors. Those seeking to get seated on the jury should answer questions in a way that does not expose any bias that they may have or, if this is unavoidable, reiterate the point that they can be fair and impartial. Distrust of the police or the criminal justice system in general does not necessarily mean that one cannot be an impartial juror – despite the luck of trust. Potential jurors that have negative experiences with law enforcement and the criminal justice system are also aware that crime exists in their community; can objectively judge the credibility of the evidence; and have a vested interest in a just outcome.

The criminal justice system is a racist institution and it is biased by its own nature. It protects privilege, property, patriarchy, and white supremacy. Jurors are supposed to bring their life experiences into the courthouse. This is one of the reasons for having a “fair cross-section”. However, in seeking to exclude jurors who have had negative experiences with police and whose judgment is affected by those experiences is not eliminating bias, it is supporting the biased notion that police always conduct themselves responsibly within Black communities. Furthermore, it assumes that the police should have been in the community in the first place when, in fact, the over-policing of Black communities and Black people is a known problem[67]. Black people, and marginalized people and people of color in general, must combat the inherent racism within the criminal justice system by taking jury duty seriously and engaging the opportunity to serve enthusiastically. This means not trying to get off the jury, but trying to get on the jury.

As a civic duty, jury service is the purest form of direct democracy. It should be treated with the same dogged protectionism and public expectation of participation as the right to vote, if not more. Statistics show that Americans have lost faith in the government[68] and this fact is attributed to low voter turnout. Indeed, people may have good reason to conclude that it doesn’t matter who they vote for or that those in government will not manage their duties in the best interest of the people whom they serve. Jury duty does not create this same conundrum.

Once on the jury, the jurors control the destiny of the case before them. It is within their power to acquit, convict, or even nullify. In fact, former prosecutor and current law professor Paul Butler encourages what he refers to as race-based jury nullification.[69] Jury Nullification is a jury’s knowing and deliberate rejection of the evidence or refusal to apply the law, either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness[70]. Such is the jury’s ultimate duty to “guard against the exercise of arbitrary power;” to preserve “public confidence in the fairness of the criminal justice system;” and to uphold that the ideal that “sharing in the administration of justice is a phase of civic responsibility.”

[1].         Naji Mujahid (William Fenwick) is a 3rd year law student at the University of the District of Columbia – David A. Clarke School of Law. At UDC-DCSL, he is the President of the National Lawyer’s Guild. Since beginning law school, he has clerked with the Public Defender Service for the District of Columbia, the Office of the Public Defender in Alexandria, VA, and the Mecklenburg County Public Defender in Charlotte, NC. He also participated in the DC Law Students in Court clinical program and represented adults and juveniles in criminal and delinquency matters. Prior to coming to law school, he was a journalist, and activist focused on issues related to police, prisons, and repression. He continues his involvement with the Jericho Movement to free political prisoners and is on the steering committee of #Law4BlackLives. Upon graduation he will be joining the Defender Association of Philadelphia as a staff attorney. Twitter: @NajiMujahid


[2].         John Paul Ryan, The American Trial Jury: Current Issues and Controversies. (last visited Nov. 12, 2015).


[3].         G. Edward Wright, The Path of American Jurisprudence, U. PA. L. REV. (1976).

(last visited August 11, 2015).

[4].         New Jersey Sen. Bill Bradley speaking against the Nomination of William H. Rehnquist to be Chief Justice of the United States Supreme Court said,  “even as the stirring words of the declaration of independence were being written, they were being dishonored. America was practicing slavery in a form as demeaning as any in recorded history. American slaves had no legal standing. They belonged to their white owners. They could take no action to control their sale. They could not swear a legally binding oath, nor make a binding contract, nor own any property to speak of. They had no freedom of speech or movement. They were subject to their owner’s curfew. They had no privacy. Neither church nor State recognized their marriages. In sum, they were openly classified as the white man’s property and required to do the white man’s bidding.”  132 CONG REC S 12467 (1986).

[5].         “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world . . . He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian Savages. . . .” THE DECLARATION OF INDEPENDENCE para. 2 (US 1776).


  1. State of Florida v. George Zimmerman was a criminal prosecution of George Zimmerman on the charge of second-degree murder stemming from the shooting of Trayvon Martin on February 26, 2012. Zimmerman, then a neighborhood watch volunteer, shot and killed Martin during a confrontation initiated by Zimmerman as the unarmed teenager was heading back to a relative’s house in Sanford, Fla., after buying snacks at a convenience store.


  1. Aware that members of the community viewed the prosecution of Zimmerman as unfair scape-goating, the prosecution decided to try the case without referencing race–to take the colorblind high ground. The problem is that by not calling attention to the possibility that Zimmerman thought Martin looked suspicious because of deeply entrenched stereotypes about young Black men as criminals, the prosecution encouraged jurors to see Zimmerman and Martin as just two young men who got into a fight that tragically, but understandably, ended in death. By deliberately avoiding any discussion of race, they erased Trayvon Martin’s race from the trial even though race likely played a significant role in why Zimmerman thought Martin looked suspicious from the start and why the jury may have found Zimmerman’s account of what happened that night credible… By ignoring race, prosecutors may have unwittingly exacerbated the effects of implicit bias. A substantial body of research suggests that ignoring race leads jurors to assess Black defendants more harshly than similarly situated White defendants, but these racially disparate results are reduced when race is made salient. If prosecutors had confronted race head on by making race a salient feature of their trial strategy, they might have been able to convince the jury to see Martin in a more sympathetic light.  Cynthia Lee, (E)Racing Trayvon Martin, 12 Ohio St. J. Crim. L. 91, 106-107 (2014).
  2. Jerry Kang, et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1142-1143 (2012).


  1. Diversification in this context, as well as most other American contexts, means the inclusion of people of color in general. This article focuses on Blacks in particular.


  1. Jerry Kang, et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1181 (2012).


[11].        The petit jury are the people that actually make-up the sitting jury at trial or the grand jury.
[12].        Taylor v. Louisiana, 419 U.S. 522, 527 (1975) In Taylor, the Court found the fair cross-section requirement of the Sixth Amendment , which provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”  was incorporated   in the Due Process clause of the Fourteenth Amendment; and as such, the states had to adhere to it. Id. at 526 – 28. The right to a jury trial in federal cases is also set forth in Article III of the Constitution, which states that “the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” U.S. CONST. art. III, § 2, cl. 3. Prior to Taylor, federal criminal defendants already had a statutory right to a jury drawn from a fair cross section. See 28 U.S.C. § 1861(1994).


[13].        This is akin to sending someone to the grocery store with a full grocery list, but being unable to complain if the only thing that they return with is tomato soup.


[14].        The overwhelming portion of the population is white. So, obviously, all you have to do in most jurisdictions is challenge a half a dozen blacks to end up with an all-white jury. … Now, how many jurisdictions are there where you could exercise a few preemptory challenges against whites and end up with an all-black jury? …  How many people within the sound of my voice have ever heard of a circumstance where a prosecutor was able to produce, and could have reasonable prospects of producing [an all-black jury] by opposing all whites who were in the pool of jurors? … Justice Rehnquist trades off that nonexistent possibility against a persistent practice, the practice being that there are a lot of jurisdictions, there are a lot of circumstances, there is a long history of 150 years of prosecutors saying, “We don’t want a black man on this jury. We don’t want a black woman on this jury. We want an all-white jury.” Deleware Sen. Joe Biden speaking against the Nomination of William H. Rehnquist to be Chief Justice of the United States Supreme Court. 132 Cong. Rec S 12467.


[15].        Professor Kim Forde-Mazrui proposes a jury selection procedure he terms “jural districting.” An implementing jurisdiction would divide a jury district into twelve sub-districts, designed around “communities of interest,” and would require juries to contain jurors from every sub-district. Such a procedure should satisfy constitutional objections and would create a broadly diverse juries representing a variety of communities, including communities identifiable by race, ethnicity, religion, political affiliation, and socioeconomic status. Kim Forde-Mazrui,  Jural Districting: Selecting Impartial Juries Through Community Representation,  52 VAND. L. Rev. 353, 354 (1999).

[16].        In the 1980s and 1990s, the United States District Court for the Eastern District of Michigan (Eastern District) sought to correct significant, though likely not constitutionally sanctioned, differences between the racial composition of the general population and jury venires empanelled in the Eastern District. In an attempt to do more than was constitutionally required to achieve a fair cross section of the community on its juries, the Eastern District implemented a “balancing” system that removed individuals from certain groups, particularly overrepresented Whites, permitting increased representation for previously underrepresented groups. Ultimately, the Sixth Circuit Court of Appeals struck down this system in United States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998).

  1. “In 1940, William A. Vinson, Sam W. Davis, and Harry W. Freeman presented a novel legal argument to the Supreme Court of the United States on behalf of their indigent eighteen-year-old African-American client convicted of rape. They argued that juries and grand juries should accurately reflect the demographic makeup of the communities from which they are chosen.” The Supreme Court, unanimously agreed, holding that “juries as instruments of public justice … should] be a body truly representative of the community.” Robert C. Walters, , Michael D. Marrin, & Mark Curriden.  Jury of Our Peers: An Unfulfilled Constitutional Promise  58 SMU L. Rev. 319 (2005).


[18].            “The trial of all crimes, except in Cases of Impeachment, shall be by Jury; and such trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.”  U.S. Const. art. III, § 2, cl. 3.

[19].        “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”  U.S. Const. amend. VI.
[20].        Lisa E. Alexander, Vicinage, Venue, and Community Cross-Section: Obstacles to a State Defendant’s Right to Trial by a Representative Jury, 19 Hastings Const. L.Q. 261 (1991).


[21].        Am. Bar. Ass’n, How Courts Work, (last visited Aug. 12, 2015)


[22].        Id.


[23].        Id.

[24].        Id.


[25].        Lee Alexander, Obstacles to a State Defendant’s Right to Trial by a Representative Jury (1991).


[26].        Id.

[27].        Id.

[28].        Drew L. Kershen, Vicinage, 29.4 OKLA. L. REV., 814-815 (1976).

[29].        Id. Henry was delivering a speech attacking the Federal Constitution for not sufficiently guaranteeing a right to trial by jury of the vicinage.

[30].        Kershen, Vicinage,  1976, at 833.
[31].        French for “to speak the truth.” Voir dire is the process through which potential jurors from the venire are questioned by either the judge or a lawyer to determine their suitability for jury service.
[32].        Kershen, Vicinage, 1976, at 834.


[33].        Howe, Juries as Judges in Criminal Law, 52 Harv. L. Rev. 582 (1939).


[34].        Unanimous jury verdicts in criminal trials are required in all but two states. Currently both Oregon and Louisiana allow convictions on 10-2 or 11-1 margins, only requiring unanimous verdicts in capital cases.

[35].        Kershen, Vicinage, 1976, at 839.


[36].        Supra note 11.

[37].        On December 10, 1963, while still the leading spokesman for the Nation of Islam, Malcolm X gave a speech at a rally in Detroit, Michigan. That speech outlined his basic black nationalist philosophy and established him as a major critic of the civil rights movement. Malcolm X. Message to the Grassroots (1963). (last visited Nov. 11, 2015).


[38].        Supra note 27.


[39].        When it comes to citizenship, the ability to sit on a jury ranks with freedom of speech, freedom of religion, and the right to vote. Indeed, one may argue that jury service is more important than the right to vote. Mark Curriden. Jury of Our Peers: An Unfulfilled Constitutional Promise  58 SMU L. Rev. 319, 321 (2005).


[40].        Glasser v. United States, 315 U.S. 60, 84 (1942).


[41].        Singer v. United States, 380 U.S. 24, 31(1965).


[42].      Taylor v. Louisiana, 419 U.S. 522, 530 (1975).


[43].        Sanjay K. Chhablani, Re-Framing the ‘Fair Cross-Section’ Requirement, 13 U. Pa. J. Const. L. 931, 934 (2011).


[44].        W]omen were not included in the panel of grand and petit jurors in the Southern District of California where the indictment was returned and the trial had; that they were intentionally and systematically excluded from the panel.”  (Justice Douglass in  Ballard v. United States, 329 U.S. 187)


[45].        Taylor v. Louisiana, 419 U.S. 522, 530 (1975).


[46].        Ballard v. United States, 329 U.S. 187 (1946)


[47].        Chhablani, Re-Framing the ‘Fair Cross-Section’ Requirement, at 944 (quoting Taylor v. Louisiana, 419 U.S. 522 ( 1975).


[48].        Duren v. Missouri, 439 U.S. 357 (1979).


[49].      Chhablani, Re-Framing the ‘Fair Cross-Section’ Requirement, at  944.

[50].         The Bill of Rights (Sixth Amendment included) contains obligations that are placed upon the federal government, not the State governments.  Unless the Supreme Court determines that a right is a fundamental right and applicable to the states via the Fourteenth Amendment, the specific liberty interest involved is not germane to state prosecutions. It was not until 1968 in Duncan v. Louisiana that the Sixth Amendment right to trial by jury was made applicable to the states. In order to satisfy the Sixth Amendment, courts and states must take steps to ensure that their jury selection system provides the defendant with a trial before an impartial jury. Any modifications to the jury selection process must not be discriminatory as this would violate the equal protection clause. Proposals of jury reform that intend to increase the number of black jurors and reduce the number of white jurors must be constructed so as not to be unconstitutionally discriminatory. The system being proposed here would not violate the Constitution because it simply shrinks the vicinage by applying a narrower definition of community.

[51].        US CENSUS BUREAU, CITY OF FERGUSON, MISSOURI 2010 CENSUS INFORMATION, (2010),, (last visited May 21, 2014).


[52].      Tanya E. Coke, Lady Justice May Be Blind, But Is She A Soul Sister? Race-Neutrality And The Ideal Of Representative Juries, 69 N.Y.U. L. Rev. 327, 362-363 (1994).


[53].        Taylor v. Louisiana, 419 U.S. 522, 530(1975).


[54].        U.S. Department Of Justice, Federal Justice Statistics, (2010), ( last visitedMay 21, 2015).


[55].        Supra note 29 .


[56].        Jeffrey M. Jones, Urban Blacks in U.S. Have Little Confidence in Police, GALLUP, (Dec. 8, 2014), (last visited Nov. 11, 2015).


[57].        Lauren Fox, There’s a Huge Racial Gap in Trust of Police. Can Congress Fix It?, The Atlantic (Dec. 8, 2014), (last visited May 21, 2015).


[58].        Jeffrey M. Jones, Urban Blacks in U.S. Have Little Confidence in Police, GALLUP, (Dec. 8, 2014), (last visited May 21, 2015).


[59].        U.S. Census Bureau. (last visited May 21, 2015).


[60].        ‘Police violence’ is here being used as a catch-all phrase for police torture, brutality, violence, coercion, killings, and the like.


[61].      Ryan Gabrielson, Ryann Grochowski Jones, & Eric Sagara, Deadly Force, in Black and White, PROPUBLICA, (Oct. 10, 2014),,  (last visited May 21, 2015).


[62].        Trial begins for Charlotte police officer accused of shooting an unarmed man, THE GUARDIAN, (Jul. 20, 2015), (last visited Aug. 11, 2015).


  1. During the process of jury selection, the parties are given the opportunity to strike an unlimited number of prospective jurors for cause. A “for cause” challenge will be granted if the judge finds that the party has articulated a good reason that the juror should not serve, such as an inability to be impartial or a prior relationship with the defendant, the defense attorney, the prosecutor, the judge, or one of the witnesses. Each side is also given a set number of peremptory challenges, which can be used to strike a prospective juror for any reason or no reason at all, as long as the reason for striking the prospective juror is not based on the individual’s race or gender. Cynthia Lee. A New Approach to Voir Dire on Racial Bias, 5 U.C. Irvine L. Rev. 843, 848 (2015).


[64].        Although, low-income communities of color have both a heightened interest in being on juries, and evading jury duty. The former, because the majority of people prosecuted are people who look like them and they need to represent the interests of their community, and the latter, because many, if not most of them are not in comfortable enough financial positions to take time off or get child care for the amount of time required to serve on a jury.


[65].        Recent studies have found that in urban jurisdictions, 20 percent or more of the citizenry who receive jury summons fail to report to the courthouse for potential service. Robert G. Boatright, Why Citizens Don’t Respond to Jury Summonses and What Courts Can Do About It, Judicature 82, No. 4 (Jan,-Feb. 1999): 156-164.



[66].        In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court determined that it is constitutionally violative to exclude people from juries for reasons based only on their race or gender. However, race can be one of many reasons and during voir dire, questions are asked to expose bias in jurors.


[67].        The Black Youth Project. Report: The Policing of Black Communities and Young People of Color. (Last visited Nov. 11, 2015).


David Kennedy. Black communities: overpoliced for petty crimes, ignored for major ones,  LA TIMES, (Apr. 10, 2015),,  (last visited  Aug. 11, 2015)


“Overpoliced & Underprotected”: In Michael Brown Killing, Neglect of Black Communities Laid Bare, DEMOCRACY NOW, (Aug, 19, 2014),, (last visited   Aug. 11, 2015).


[68].      Doug Mataconis, Americans Have Almost Totally Lost Faith in Government, OUTSIDE THE BELTWAY, (Jul. 2, 2014).,  (last visited Aug. 11, 2015).


[69].      Paul D. Butler, Race-Based Jury Nullification: Case-In-Chief, 30 J. Marshall L. Rev. 911, 912-22 (1997). Shannon Heffernan, The Secret Power of Jury Nullification,  LIFE OF THE LAW, (Jun. 24, 2014),, (last visited  Aug. 11, 2015).


[70].        See U.S. v. Thomas, 116 F.3d 606 (2d Cir. 1997).

On Human Rights; an interview

Conducted at the US Human Rights Network December 2011 Conference in Los Angeles

1.  How, specifically, are Human Rights defined and shaped by social movements today, (i.e. Rights of Indigenous, Rights of Mother Earth)?

NAJI: I dont think that Human Rights (HR) are defined and shaped by social movements; I don’t agree with that assessment. I think that Human Rights (with regard to international law, etc.) are a co-optation of peoples struggles. I don’t necessarily think that that is a bad thing… it just is what it is. I think social movements may provide the inspiration or the impetus, but once the government or NGOs take it on, ultimately, they are the ones that shape and define it. I conclude this from my Western-centered vantage point, perhaps social movements elsewhere have had more direct influence, but in the US, I think it has been somewhat minimal.

I’m not familiar with the struggles that led to the two examples you mentioned, however, I think that there were genuine peoples movements that pushed the issue to the fore. Examples of peoples movements effecting change with regards to Human Rights, are most likely going to be found outside of the US. It is my opinion, that the claimed successes of peoples movements in the US are somewhat exaggerated. However, the (white) populist struggles of the early 20th century were exceptional. These struggles led to a lot of gains as far as labor and workers rights are concerned. The Women’s Lib movements and suffrage movements were also successful. White movements [tend] succeed; Black ones [usually] only give the illusion of success.  It doesn’t take long for the same issues that they address to morph into some other related form of oppression or discrimination.  That’s why Black people have been fighting for the same things [for the most part] since slavery ended.

2.  Briefly what brought about the social movements in this country that led to the adoption of civil and political rights.  Why was that revolutionary in the context of the Original American Constitution and why was important for those in power in this country to allow Civil and Political rights and not Economic, Social, and Cultural Rights?

NAJI: The creation of the UN (1945) and the writing of the Universal Declaration of Human Rights (1948), was a response to the end of World War II (1945). At that time, because of the Holocaust and other atrocities against various European peoples, the world wanted to ensure that nothing like that ever happened again. However, if I’m not mistaken, input from Black and Brown countries did directly influenced the process. Human Rights then, developed as means for the European powers to exercise moral superiority over others. The split between Civil and Political Rights and Economic Social and Cultural Rights came as a result of the burgeoning Cold War and a power struggle between Communist Russia (proponent of ESCR) and the United States (proponent of CPR). Its really not my understanding that the International Covenant of Civil and Political Rights (ICCPR) was particularly revolutionary. With regards to the ICCPR and the Constitution, one of the reasons that the US got behind it was because it is inherently aligned with the Constitution; much more so than the International Covenant of Economic Social and Cultural Rights which the US has yet to sign.

3.  What are the benefits of a human rights paradigm? i.e. proactive and positive rights, state obligations?

NAJI: In theory, I think that the benefits have a tremendous upside. If smaller countries can acquire more influence and power within the UN. For the US specifically, because the US promotes itself as the beacon of liberty and moral superiority in the world, it is a means to hold them accountable for their proclamations. The civil rights struggles didnt gain traction until the abuses perpetrated against African-Americass became international knowledge and it exposed the hypocrisy of this country. I’m not aware of any cases where international HR has been used in court to anyones advantage. Creating a culture of positive rights would be a welcomed change, but in this country, you have a significant push towards cutting back social welfare programs.

4.  How is the HR framework elitist, and why even still should social movements adopt it?

NAJI: It is elitest because of its use and cooptation by former colonial countries. Most often, rather than being a tool for the people to use to protect themselves from government repression and negligence, it is used by more powerful (Western or NATO) countries against their former colonial subjects or enemies. Nevertheless, it should still be used because it has potential. Also, we dont have much else, unless we’re ready to kill and be killed. The state exercises power and authority because of its monopoly on violence. So unless groups are prepared to challenge that monopoly, it is only prudent to try to use existing channels to our advantage.

5.  Why is it important from a solidarity standpoint for social movements in this country to adopt HR in their work from the perspectives of social movements around the world?

NAJI: Because, the world needs to see that the same struggles going on around the world are going on within the US. The US has the same unresolved problems that it claims to be going around the world to solve and admonishing other countries about. The hypocrisy of the US government must be made clear to everyone, including those within the US.

6.  Why do HR mean something substantive for real people?

NAJI: Because the majority of the issues speak to the basic needs of people, that’s why they’re called “Human” rights, it is really indicative of the miserable state of the world and so-called civilization. HR are bare minimum standards for human equity and dignity; it shouldn’t even be a question. The rights don’t lack substance, the application of those rights lacks substance. Its the fear that we could go through all this trouble, but not receive the benefit. But that doesn’t mean the human rights struggle lacks substance, it means the legal and judicial system do; but thats another issue.’