Now Is Not the Time for Federal Judges to Be Removing ICE Skeptics from Jury Selection
Description
As the Trump administration’s Immigration and Customs Enforcement raids continue to ransack communities across the country—leaving destruction and a strong sense of distrust in their path—the government appears to believe that it can embrace aggressive tactics, sow fear, and purge juries of anyone skeptical of its actions.
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The jury selection in the trial of anti-ICE protester Sydney Reid—who was recently acquitted by a D.C. jury in a trial that became a spectacle of government transgressions—illustrates the problem. For hours, potential jurors were questioned about their feelings toward ICE and federal law enforcement. Nearly a dozen people were excused for saying they could not be impartial because of their feelings toward the federal law enforcement apparatus, an honest response that is reflective of real community sentiment.
One woman, apologizing through tears, explained that her cousin and aunt had just been taken by ICE and that her family had stopped working out of fear. Another prospective juror told the judge, “I don’t trust government like I used to,” and admitted they would “have a hard time believing their integrity” if ICE officers testified. But lying to cover their tracks has become so commonplace among ICE and DHS officials that a healthy dose of wariness is well deserved.
When the government acts aggressively, its agents lie, and the community witnesses the erosion of justice, that community’s informed distrust of the government’s actions is not a bias to be purged. It is the very voice the Framers yearned for engaged citizens to bring to the jury box. That community skepticism of arbitrary and unjust government action forms the bedrock of the constitutionally prescribed mechanism by which we adjudicate criminal cases.
Proponents of the unchecked exercise of state power might say that it is worth trying to find the best jury to hear a case. But they have it backward: If the government time and again finds juries that are not naturally sympathetic to its case, that is because it is measuring real community sentiment, not corrosive bias. If weeding out jurors for representing their community interests is the policy, trials will be staffed by juries that are less informed, not more. Indeed, the Framers anticipated exactly this. The bedrock promise of the Sixth Amendment is a public trial by an impartial jury of our peers in “the state and district wherein the crime shall have been committed.”
The latter piece, known as the vicinage clause, was included by the Framers not as a matter of convenience for jurors but rather to ensure that jurors were able to impart the values of the community in which they reside. While the Constitution requires that juries must be impartial, impartiality does not mean ignorance. A true jury of one’s peers must reflect the community’s shared values and experiences, including any legitimate distrust of the very government bringing the charges.
The Supreme Court rightly held in Taylor v. Louisiana that the Sixth Amendment demands a jury drawn from a representative cross section of the community. The Framers intended for ordinary citizens to share in the administration of justice as a phase of civic responsibility.
We know that systematic exclusion based on immutable characteristics including race or gender violates this standard, as established in Duren v. Missouri. But what happens when systematic exclusion comes about for other reasons, such as a viewpoint informed by lived experiences or personal observations?
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We now have vast swaths of communities across this country where populations, often along racial and ethnic lines, are understandably suspicious of law enforcement. This distrust has only deepened thanks to an administration that has weaponized federal agencies to target U.S. citizens in immigration crackdowns, deployed chemical agents against persons engaging in First Amendment–protected activities, and stationed troops to police American cities.
Judges and prosecutors already go to considerable lengths to ensure that those most aware of the historic concept




