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Racializing a Non-Racial Issue:

I was very surprised this morning to hear NPR's Nina Totenberg mention--more like emphasize--that ten of the twelve jurors in the Scooter Libby obstruction of justice trial are white, and two are black. I've been trying to figure out what possible relevance this has, and haven't been to come up with anything. Is there any reason to believe that whites are easier or harder on obstruction of justice defendants than are blacks? Am I missing something? If I'm right that it's not relevant, I think it's poor practice to mention individuals' race.

UPDATE: Commenters have suggested the relatively obvious proposition that the jury pool was out of sync with D.C.'s population, and perhaps of its jury pool. If so, so what? Is Totenberg claiming that there was a racially discriminatory selection of juries? Or, regardless of whether there was such "foul play," the composition of the jury pool was likely to favor one side or the other? (as discussed in the comments, it's not at all clear whether the racial composition of the jury helps Libby or the government). Certainly, either of these things would be relevant, and the former even important. But all I heard was the statement that the jury pool has such and such many whites and blacks, and also men and women. But, in the absence of a discussion of either of the claims suggested above, it seems quite gratuitous to me. Are we still at such a point in our history that, as some commenters suggest, it's routine in any publicized case, regardless of whether the case has a racial angle, to point out the jurors' race? Put another way, if the jury had seven blacks and five whites, roughly mimicking D.C.'s population, would there be any reason to point this out in media reports? Why not tell routinely tell the audience how many Jews, Catholics, Protestants and Muslims are on the jury? Senior citizens? Disabled? Persons of Irish, Scandinavian, and Italian descent? Some, and perhaps all, of these categories are correlated with various social and political attitudes, but we operate under the assumption that members of these groups are acting as American citizens when they serve as juries, not as members of their particular demographic. Why not have the same assumption for race, at least in cases not involving a racial controversy?

Waldensian (mail):
I can think of no reason to mention, much less emphasize, that fact.
1.23.2007 6:41pm
A DC resident (mail):
Considering the DC jury pool, it's surprising that the are so few blacks.
1.23.2007 6:46pm
Steve:
DC is roughly 60% black, so this fact is somewhat striking.
1.23.2007 6:48pm
BGates (www):
Maybe she was offering a counterpoint to the tremendous strides blacks have made in popular culture.
1.23.2007 6:56pm
happylee:
Race is like tobasco. It can spice up any boring story like tobasco can spice up a boring meal. For example, the statement "poor folks die sooner than rich folks" is boring, but "black folk dying sooner than white folk" is sensational. Or, "poor folk are victim of crimes of opportunity and violence more often than rich folks" is also boring (as in "duh"). However, slap on a dash of race, and it becomes a very exciting issue of how blacks suffer more crime than whites (at the hands of fellow blacks, but who reads past headlines anywho?).

NPR loves tobasco. But only certain kinds of tobasco. It's coverage of the Duke LaCrosse mess was as shameful as the remaining mainstream media.

That said, how the heck does one get a 80% white jury pool in a less than 10% white jurisdiction? Go, Libby go!
1.23.2007 7:04pm
Dave Hardy (mail) (www):
That said, how the heck does one get a 80% white jury pool in a less than 10% white jurisdiction?

Knowing DC, just strike for cause every one who thinks the Bush Administration is the Beast of Revelation. Just hope you can find twelve jurors that way.
1.23.2007 7:07pm
Kovarsky (mail):
I've seen the jury segmented by race on several of the major news networks. I'm not saying it's right or wrong, just that it's nothing unique to NPR.

Did the broadcast mention the ex Washington Post reporter who used to share an alley with Tim Russert that made the jury? How about the other juror who, when asked how he felt about the Vice President, answered "I wouldn't go hunting with him."
1.23.2007 7:08pm
tvk:
Well, considering the fact that DC is 60% black, one would think that the high proportion of whites on this jury was a conscious effort by the prosecution or defense to strike black jurors based on their race or something highly correlated with their race (Batson notwithstanding). The fact that at least one side with real interest in the outcome believed that race (or something highly correlated to race) was relevant provides, to me at least, a plausible "reason to believe that whites are easier or harder on obstruction of justice defendants than are blacks."
1.23.2007 7:08pm
Kovarsky (mail):
I'm sorry, but does anybody else have the problem that they see the word "racializ[..]" and think of 'da Ali G. interview with Rooney? I swear I can't get over it....
1.23.2007 7:10pm
A DC resident (mail):
The ratio is interesting, but doesn't necessarily mean that one side wanted to strike black jurors. Maybe blacks are less likely to show up for jury duty (for whatever reason) than whites in DC. I recall reading that half of all black male DC residents are convicts. Maybe that affects their desire to participate in a jury.
1.23.2007 7:12pm
Tinhorn (mail):
The racial make-up of the jury seems to be reported in virtually every high-profile criminal case. I think that failing to mention it here would have been more conspicuous than mentioning it.
1.23.2007 7:14pm
Apodaca:
That said, how the heck does one get a 80% white jury pool in a less than 10% white jurisdiction?
Not quite: DC was over 35% white in the 2000 census.
1.23.2007 7:16pm
Colin (mail):
The NPR story I heard this morning (last morning? I was only half-conscious, and it all blurs together) noted the makeup and said that it was unusual when compared to the average DC jury and DC as a whole. Others have pointed out that relevance above, but I think that I may have been listening to the same piece you were, in which case Totenberg explicitly explained the relevance.
1.23.2007 7:20pm
Richard Fagin (mail):
Considering that the Libby prosecution is purely political to begin with, the race of the jurors is in fact relevant. Blacks vote 90% Democrat give or take a few points. NPR is implying that a jury mostly of whites may be less likely to convict because they may be less Democrat-leaning.
1.23.2007 7:22pm
Colin (mail):
Er, excuse me. I suppose that's not relevance, as such. She explained that the jury is distinct from the average DC jury in this regard. It didn't seem to be anything other than a correspondant noting a curiosity.
1.23.2007 7:25pm
A.S.:
Perhaps blacks are more likely to have a bias against Cheney, and thus were struck for cause (the voir dire seemed to focus on whether the potential jurors had a bias against Cheney and thus could not keep an open mind about his testimony). After all, blacks are much more likely to be Democrats than whites. To me, that seems the most likely explanation.
1.23.2007 7:43pm
A.S.:
Also, most media reports mentioning the jurors in high profile court cases mention both the race and the gender of the jurors. Why would this media report be any different?

Seems utterly par for the course.
1.23.2007 7:45pm
Visitor Again:
Many newspapers reporting the completion of jury selection in the Libby case mentioned the gross imbalance between the proportion of black persons in the D.C. population and the proportion of black persons on the jury. Many of them said the imbalance was the result of a defense strategy to challenge potential jurors critical of the Bush Administration, even if the criticism was relatively muted, and they noted that most black D.C. residents were Democrats.

This, in my book, is relevant reporting about the defense's strategy and its consequence.
1.23.2007 7:47pm
John (mail):
Was the jury consistent with the DC population as far as religion? Eyeglass wearing? Obesity? IQ? Who cares?

The lawyers were certainly excusing jurors who had anti-administration bias, which is probably correlated with race for a variety of reasons. But I'm sure the emphasis was on bias, not race, notwithstanding the correlation.
1.23.2007 7:54pm
abean:
Ah? Who cares about the census numbers? You have to over 18, not a felon, and usually posses a driver's license and/or be registered to vote (depending on the state) to appear in the jury pool.
1.23.2007 8:04pm
wm13:
As I recall, it was Orin last October who felt compelled to spice up his commentary on easing punishments for white collar crime by referring to the beneficiaries as "rich white guys." None of the other conspirators complained then. So it seems very hypocritical to start picking on Nina Totenberg and NPR.
1.23.2007 8:05pm
Constantin:
Is there any other visible-to-the eye characteristic that correlates as highly with Democratic Party affiliation than does race? I'm almost sure the answer is no. Clearly Libby's defense team conceives heightened antipathy toward President Bush as a marker for likelihood to convict, as evidenced by their juror questioning and their brilliant "Blame Rove" strategy (to give Bush-haters an out other than conviction) they wheeled out today.

So I think the jury's racial makeup is entirely relevant and worthy of media attention. Thus it's an efficient strategy for Libby's lawyers, based on their apparent theory of the way the case will be decided, to strike as many black jurors as they can get away with striking by finding some other plausible rationale. People can lie when answering questions to try and get on (or off) a jury. But there's not much anybody can do to disguise their race.

Certainly I'm not saying it's the morally right thing to do, and it's against the law, but I'm sure it happens a hundred times a day in America, whether involving white defendants or black defendants.
1.23.2007 8:26pm
Anderson (mail) (www):
I thought DB lived in/around D.C. How did this discrepancy b/t the jury and the population escape his attention?
1.23.2007 8:32pm
eric (mail):
I will be a little controversial and say that the lawyers representing Libby should be particularly cautious with black jurors during vior dire because the black population leans so heavily towards democrats.

If you were representing Al Franken in Utah you should be careful with the white guys too.
1.23.2007 8:38pm
logicnazi (mail) (www):
While correlation with political party may be one factor I want to toss out another possibility, culture. Black culture has different culture norms than wasp culture in certain areas. In my experience (possibly wrong) one of those areas is in how circumspect they are in expressing their views.

In other words it's entirely possible that blacks who think the Bush admin is horrible are likely to come out and say, "The Bush administration is a bunch of arrogant crooks who are screwing the poor over" while someone with a wasp type background would be more likely to say, "I think the Bush doesn't give enough weight to the plight of the less privileged." They might both say the same thing when chatting in their living room but in a court room phrase things differently. Even if they both have the same beliefs who do you think will be more likely to be struck for cause?

This difference is likely exaggerated by the fact that a large part of the white population in DC is probably there for government functions.
1.23.2007 8:39pm
Enoch:
ANY jury composed of DC residents - black or white - is likely to be heavily Democratic. Too bad for you, Scooter.
1.23.2007 8:47pm
Steve:
I like how "anti-administration" is regarded by some as a "bias," as if pro-administration is supposed to be the default or something.

Having pre-existing doubts about the defendant's credibility would certainly prejudice his right to a fair trial. But having pre-existing doubts about the administration's credibility simply means you've been paying attention.
1.23.2007 8:50pm
Randy R. (mail):
"Maybe blacks are less likely to show up for jury duty (for whatever reason) than whites in DC."

NO way! I have been called to serve on a jury for at least half of my years living in DC, which I've called home since 1987. I can personally vouch for the fact that the vast majority of people within any given jury pool is at least 80% black. In fact, I have seen whole courtrooms filled with potential jurors, perhaps 80 to a 100, and almost all black. But by the time the jury is seated, the majority of the jurors is white. In both jury trials that I have served on, there were two blacks and the rest were white.

I'll leave it to others to speculate why this is so, and will caution that it's only my experience. But everyone I've talked to has had a similar experience.
1.23.2007 8:53pm
DavidBernstein (mail):
I think many of you are missing the fact that whites in D.C. are overwhelmingly Democrats, too, and that whites in D.C. are much more likely to be political activists than blacks. A very large percentage of whites in D.C. are gay, and another large percentage are Jewish, not exactly Bush's core constituencies. I don't think it's at all clear that a white-dominated jury is DC is more likely to be sympathetic to a Bush official than a black-dominated jury, and, indeed, it's possible that it would be better for Libby to have more blacks on the jury, to the extent (and if) they may have a more negative view of prosecutors. Finally, the relevant population is not the D.C. population, but the D.C. jury pool. Last I heard, D.C. is over 40% white, probably even more if we consider the adult population, and given that a law professor colleague of mine has served on juries twice in the last year, it looks like professionals are not readily excused from jury duty. So it wouldn't surprise me if a clear majority of the D.C. jury pool is white, and, if so, it would not be at all statistically remarkable to have a jury like Libby's.
1.23.2007 8:53pm
Andrew Hamilton (mail):
The Libby trial is embedded in the Joe Wilson saga. Having followed the latter closely, I find Totenberg's reporting on the Libby trial tendentious. For example, a few days before the trial she "reported" that Joe Wilson "determined" that Iraq was not "seeking to illegally buy uranium to use in nuclear weapons" and that when "President Bush alleged the opposite in his speech justifying the invasion of Iraq, Wilson went public." Well. Joe Wilson went to Niger to ascertain whether Iraq had tried to buy Nigerean uranium. One case. Whatever he found, it would not address other possible efforts by Iraq to obtain uranium abroad. So Totenberg claims a universality to Wilson's knowledge that is false. That makes the second part of her statement false also, since President Bush didn't "allege the opposite" of whatever it was that Joe wilson reported. Instead, Bush cited a British report that Saddam was seeking uranium in Africa. First, the British report on which Bush relied was ratified as credible by the independent Butler commission. Second, the Bush statement never mentioned Niger, a country (but not the only one) in Africa selling uranium, and Niger was the only country on which Joe Wilson had information. Third. Joe Wilson's report (which appears to have been oral,so no written record has been produced) mentioned an approach by an Iraqi official to a Nigeran official that the latter interpreted as a a probe of Niger's willingness to sell uranium, and U.S. intelligence officials privy to Wilson's trip report saw that as confirming their suspicion that Saddam was indeed seeking African uranium. That falsifies Joe Wilson's description of the impact of his findings, that the U.S. Government now knew there was no substance to the allegation that Saddam was seeking uranium in Niger.

Bottom line, Totenberg's reporting on this case is biased and untrue in its background, and probably prejudicial in its selection of detail, such as jury composition.
1.23.2007 8:54pm
Andrew Hamilton (mail):
Here's the link to the Nina
Totenberg report mentioned in may last post:

http://www.npr.org/templates/story/story.php?storyId=6865758
1.23.2007 9:21pm
frankcross (mail):
It wasn't just NPR, google shows a number of other sources who thought it somehow relevant.

When Michael Espy was acquitted, the Washington Times made a point of stressing that eleven of the twelve jurors were black. Some conservatives went to town on this, as proof that the jury was biased for him.
1.23.2007 9:42pm
Kovarsky (mail):
Andrew,

I don't get it. How is she "biased" if she's picking out the same details as every major news network? Are you just inferring that she is because you thinnk she's conducted biased reporting about other stuff?
1.23.2007 10:14pm
Elliot Reed:
With about 60% of the population black, the chance of getting 10 or more white residents on the jury is less than 0.3% if the jury is picked in a race-blind manner. Even if for some reason black residents are half as likely as white residents to show up for jury duty, a race-blind selection procedure gives 10 or more whites less than 5% of the time.

In other words, the racial mixture of this jury is a remarkable statistical improbability and you have to make some implausible assumptions to get the probability of generating it as high as one in twenty. That suggests pretty strongly that one side or the other was (possibly unconsciously) picking jurors by race. Why isn't that newsworthy?
1.23.2007 10:38pm
Lev:

For example, on Monday lawyers considered (but ultimately rejected) a woman who, in questioning by Fitzgerald and Libby attorney William Jeffress, said she did not read any newspapers (she and her husband cancelled their subscription to the Washington Post more than two years ago when they had a baby and no longer had time to read the paper). She also said she watched no news on television. "I come home from work and do bottles and diapers," she said.
1.23.2007 10:44pm
Christopher Cooke (mail):
I think the racial composition of the jury is relevant if only because race, as a crude proxy of social attitudes, is relevant, unless you have much more specific information about a particular juror. Ask any lawyer who tries cases to a jury whether he or she considers race as one of the elements in deciding which jurors to strike and which to keep in any criminal trial.

Here, it is not clear to me how an African American juror would play out (all other things being equal or unknowable about the juror). One of Mr. Libby's lawyers, Ted Wells, is an African American, so you might think that would favor keeping some African Americans on the jury (if Mr. Wells is a likeable sort with whom some of the jurors might either identify or want to win.) The Judge is also an African American (not sure how this cuts, unless the judge favors one side with his rulings, but is not perceived by the jurors as unfairly biased). Libby worked for Cheney and the Bush Administration is very unpopular among African Americans, on the whole, who are loyal Democrats. Libby is also an upper class preppy type who went to a prep school and to Yale; thus, lower middle class jurors (the predominant socio-economic group of African Americans) are unlikely to identify with him.

But, as David points out, the stereotype is that African Americans are suspicious to prosecutors/police becausem, supposedly, they are more likely to know people who have been wrongfully arrested or mistreated by the police. Here, however the "police" are the FBI; I doubt many people have the same view of the FBI as they do of a local police force. My guess is that both the prosecutor and the defense counsel hired jury consultants, and exercised their preemptory strikes in accordance with the advice they received from these consultants.

Perhaps Ms. Totenberg thought that the defense made a conscious effort to strike as many African American jurors as they could get away with, and that is why she made her comment. As a lawyer, I think the racial composition is relevant, but that is because we are not a color-blind society. If I knew more about the jurors, though, I might find their reading selections, educational background, the neighborhood in which they reside, political views, and TV viewing habits more relevant than their race. If I didn't know much about these other traits, I would probably use race as a proxy to guess how they would vote. So, for my gross stereotype, I would say that African Americans are unlikely to identify with "Scooter" Libby or to have much sympathy for him and excuse his possible lies to the FBI, and I would be predisposed to strike them if I represented him or keep them, if I prosecuted him.
1.23.2007 10:45pm
Christopher Cooke (mail):
I should add, if I were representing Libby, and I concluded that an African American was more likely to be predisposed to find Libby guilty, I would try to strike as many such jurors as I thought I could get away with striking, without drawing a Batson challenge. I would view it as my duty. Sorry if this offends anyone's notions of a color-blind society, but that is what most lawyers would do.
1.23.2007 10:51pm
A. Zarkov (mail):
Elliot Reed:

Your calculation is correct, but not definitive. It assumes that all other factors besides race are equal, and that's not true. For example there could be a black/white difference in the way prospective jurors answer questions. Their occupational backgrounds could also affect their chances of serving on a particular jury. My engineer friends tell me that they are almost always excused from juries. Without more data we can't determine if a racial bias in jury selection is present. Of course such a bias could be a rational strategy for one side or the other.
1.23.2007 11:07pm
Kovarsky (mail):
I would try to strike as many such jurors as I thought I could get away with striking, without drawing a Batson challenge.

Given the content and headline-grabbing nature of the case, you're going to be able to get your for cause challenges without having to worry about Batson.

I have a hard time crying foul without knowing what the venire pool actually looked like.
1.23.2007 11:10pm
Elliot Reed:
A. Zarkov - yes, there are lots of other factors that could have impacted the jury selection in a way that has nothing to do with race. A back-of-the-envelope calculation like I did isn't a proof of anything. But I think it's significant enough to indicate that there's at least good reason to believe race was a factor in jury selection, which is worthy of comment by a newscaster. Bernstein's position seems to be that reporters are under some obligation to ignore very strong evidence of racial bias as long as it's not dispositive.
1.23.2007 11:13pm
plunge (mail):
David Bernstein: 'I think many of you are missing the fact..."

Wait. You make a post that purports to be incredulous about why something was mentioned, conspicuously leaving out a key explanation given by the reporter herself, and failing to mention a critical element of why that thing would be unusual, and WE are the ones missing facts?
1.23.2007 11:15pm
A. Zarkov (mail):
"I doubt many people have the same view of the FBI as they do of a local police force."

That's true. In general I trust local police more than the FBI. The local police are more likely to videotape interrogations than the FBI. Then there was that awful scandal at the FBI crime lab. But I suspect I'm in a minority because for some reason many people seem to trust federal things more than state or local things.
1.23.2007 11:15pm
Kovarsky (mail):
A. Zarkov,

You're instinct is right re: the racial variable. Classic saw of correlation, not causation. The defense could probably strike based on extreme political dispositions. To the extent political dispositions correlate with race, the strikes are not problematic.

That being said, I think it bizarre in the utmost to target Totenberg for reporting this disparity, when virtually every other report over 3 lines long mentions it.
1.23.2007 11:23pm
Ragnell (mail):
Some bloggers are liveblogging the jury selection and posting detailed physical descriptions of the jurors. I'm waiting for them to post jurors' names,addresses and phone numbers. Their families may find Cindy Sheehan camped on their doorsteps.
1.23.2007 11:29pm
Twill00 (mail):
Elliot -

Only if you define "race-blind" as "artifically designed so as to give each race an equal chance of passing selection." No reasonable person would claim that the views of an average cross-section of blacks would be distributed the same way as the views of an average cross-section of whites. If that were true, half of blacks would be Republicans.

If you created a set of legal questions for voir dire, and the answers of blacks were heavily skewed towards excludable opinions, then few blacks would make it to the final cut. By the way, has anyone actually checked to see who it was that excluded all those blacks? I'd bet the prosecution had lots of reasons to strike black people who had friends falsely prosecuted and so on.
1.23.2007 11:34pm
Harry Eagar (mail):
When Professor Volokh says he was 'surprised,' I take that as a figure of speech, meaning not that he was surprised but that he picks this bit out of a larger report for comment.

No one who listens to NPR could ever be 'surprised' by any kind of reference to race. NPR is obsessed with skin color. It is incapable of reporting any political story without giving race pride (or shame?) of place, whether it merits it or not.

Someone with Lexis/Nexis and more time on his hands than I have could do a search of NPR -- pick a small universe, say its reports in 2006 on congressional races -- and tally up how many reports mention race. The result will be within spittin' distance of 100%.

Then, and this would require some judgment, examine each one to determine whether, in fact, race was a dominant or even minor aspect of the contest.
1.24.2007 12:01am
DavidBernstein (mail):
I single out Totenberg because that's the report I happened to hear; indeed, if I hadn't heard been in the car this morning driving my wife to work, I'd have no idea Scooter Libby was on trial.
1.24.2007 12:10am
Kovarsky (mail):
Ragnell,

Link? I'd be interested in seeing that...
1.24.2007 12:17am
Colin (mail):
But all I heard was the statement that the jury pool has such and such many whites and blacks, and also men and women. But, in the absence of a discussion of either of the claims suggested above, it seems quite gratuitous to me. Are we still at such a point in our history that, as some commenters suggest, it's routine in any publicized case, regardless of whether the case has a racial angle, to point out the jurors' race?

No, we're not. And if that's all you heard, then you didn't hear the earlier coverage, and perhaps you should make that clear before criticizing Totenberg. (I'd link to the piece from the 23d, but it doesn't seem to be up yet.)

"The selection process has been, well, weirder than usual. First of all, the group of sixty potential jurors looks to be about eighty percent white in a city that is sixty-two percent non-white, and where juries typically are overwhelmingly minority. No one at the courthouse seems to know why the anomaly, though no one disputes it, either." She goes on to discuss the pool's connections with journalists and players connected to the case.

So in a story about a high-profile case that has just reached jury selection, Totenberg discusses several reasons why the process so far has been unusual. The first reason is that the pool is demographically unlike the city from which it's drawn, and apparently from other juries (or jury pools, she's not entirely clear).

That's not a gratuitous mention of race, it's a specific discussion of one of several factors that make the jury pool in this case unusual when compared to (A) other DC pools and (B) pools in general. Your post references another Totenberg story that's not archived yet, as you mention the jury itself rather than the pool. In that case, she's following up on the same factors, and the mention of race is even less gratuitous because the anomaly has been carried into the jury.

I think it's also interesting that many of the comments here and elsewhere about how the attorneys are attempting to adjust the racial balance of jury don't take into account the fact that the pool itself was unlike DC. In fact, if the jury is 10/12 white, then that roughly preserves what Totenberg observed was an 80% white pool.
1.24.2007 12:52am
Kovarsky (mail):
Whoa, David, the update is harsh. Where race correlates highly with political identification, and where political identification is highly relevant, and where race is immediately identifiable but political identification is not, the malproporitioned venire is newsworthy.

in fact, the malproportionied venire is more newsworthy than the malproportioned jury, since the former is supposed to be a more statistically representative sample of the population. when you're talking about the actual composition of the jury, it's not surprising to see blacks, who skew democrat(ic), struck on the basis of some attribute other than race.

maybe it's newsworthy because this venire is abnormally white. and it's certainly newsworthy if it's always this way, and now is the only time we happen to be paying attention.
1.24.2007 1:16am
Trevor Morrison (mail):
"... but we operate under the assumption that members of these groups are acting as American citizens when they serve as juries, not as members of their particular demographic."

I don't know exactly who the "we" is supposed to refer to in this passage, but surely it's not trial lawyers (on either the prosecution or the defense side).
1.24.2007 1:22am
JB:
Perhaps this is just a statistical outlier. There are a lot of court cases in DC, surely some of them will have disproportionate numbers of whites.

Considering that it's unclear which side this helps, if any, I think it's a total nonissue.
1.24.2007 2:59am
Splunge (mail):
For those interested in the math, this calculation is a 1D random walk, and the probability P(w) for getting w whites on the jury, if they're selected in a race-blind way from a jury pool that exactly reflects the racial mix of the District is:

P(w) = 12! / [(12 - w)!w!] * p^w (1-p)^(12-w)

where p is the probability of being white, here assumed to be 0.40 (40%). The numerical results are:

P(0) i.e. 0 whites, 12 blacks: 0.2%
P(1) i.e. 1 white, 11 blacks: 1.7%
P(2): 6.4%
P(3) : 14.%
P(4) : 21.%
P(5) : 23.%
P(6) : 18.%
P(7) : 10.%
P(8) : 4.2%
P(9) : 1.2%
P(10) : 0.25%
P(11) : 0.030%
P(12) : 0.0017%

One of the interesting results here is that getting a jury with 10 whites is just about as improbable as seating an all-black jury. Any guesses on whether Nina Totenberg would suspect racial bias if an all-black jury was seated in D.C.?
1.24.2007 5:36am
Bruce Hayden (mail) (www):
Folling Clarice Feldman's live blogging of the jury selection over at Justoneminute, other factors that seem to have possibly swayed the racial composition of the jury are that many more D.C. blacks seem to be either felons or related closely to felons, and more related to law enforcement, all of which were used apparently as cause by the Libby attorneys.

Nevertheless, it isn't the defense's obligation to guarantee a racially representative jury. And their challenges for cause seemed to be more for extreme political bias or for inability to be impartial. And I have no doubt that they have non-racial reasons in place for all of their peremptories.

I do see though that if Libby is not convicted, there will be a lot who blame the racial mixture of the jury, despite the fact that the crime is only being held in D.C. because of an accident of history. In other words, that Libby got off because they weren't able to stack the jury as much as they wanted against him in probably the most Democratic jurisdiction in the country.
1.24.2007 6:07am
DavidBernstein (mail):
If the overall jury pool was indeed 80% white, then I REALLY don't see the relevance of pointing out that the jury turned out to be about 80% white, because we no longer even have the implication of racial bias in jury SELECTION.
1.24.2007 6:28am
Colin (mail):
If the coverage included a note that the pool was not represenative of the surrounding city, why wouldn't she follow up? People following the coverage would at least want to know if the jury maintained the pool's representation, especially since the pool was apparently demographically abnormal. And this jury, in particular, is abnormal. She hasn't been insinuating that the reason for that abnormality was "racial bias in jury selection;" everything I've heard has merely been observing that the pool and/or jury are not representative of standard DC juries. You're really reaching to find an issue here.
1.24.2007 7:55am
DavidBernstein (mail):
Colin, in the absence of misconduct in the voir dire process, or a claim that the racial makeup of the jury will clearly help one side, WHY do we care whether the jury matches the racial proportions of the residents of the city, any more than whether it matches any of the other demographic categories I mentioned?
1.24.2007 8:06am
Colin (mail):
Firstly, because it's not what most listeners would expect, and surprising and unusual facts make for more interesting reports. Secondly, because this jury (and/or the pool) is apparently unlike other DC juries, for this and other reasons. Why would a reporter not comment on an obvious factor that makes this jury unusual?

Totenberg says that in DC, "juries typically are overwhelmingly minority." This one is overwhelmingly white. If the jury was overwhelmingly (10/12) Roman Catholic, that would get a mention, if anyone noticed. If it was overwhelmingly Libertarian, that would get a mention. If it was overwhemlingly postdocs or dropouts, that would get a mention. I think that any factor that makes the jury stand out from the typical DC jury is worth a brief, casual, contextual mention, which is all that it got. You're scrabbling to extract way too much significance from a journalist's casual mention of an anomaly in the trial.

In the larger sense, which it seems you want to tie this to, people care about race in juries because of Batson and its rationale. That makes the racial composition of venires and juries significant in a way that other demographic factors aren't. I don't think that's a factor in this instance, because it's not relevant to the Libby trial. But if you want to opine on "WHY . . . we care whether the jury matches the racial proportions of the residents of the city, any more than whether it matches any of the other demographic categories," then I think the conversation starts with Batson.
1.24.2007 8:41am
DavidBernstein (mail):
Even Batson's not about having a jury that matches the demographics of an area, it's about not intentionally excluding people of a given race.
1.24.2007 9:01am
Hovsep Joseph (mail) (www):
I think Colin's updates are enlightening. It is notable in and of itsefl that the jury is unusually and disproporitionately white, whether that is due to the attorneys' selection of jurors or self-selection by jurors themselves. Totenberg explained that the potential jurors that showed up were disproportionately white and did not suggest that the lawyers on either side were selecting on the basis of race (as earlier mentioned, its not clear which side exclusion of blacks would favor). The fact that Totenburg didn't throw out theories seems to me wise restraint, not bias. Being less wise or restrained myself, I'd suggest that DC's white population has more of the professional types who are interested in politics and would be more interested in sitting on a jury like this than DC's black population.
1.24.2007 9:08am
Steve:
I can't believe we're even arguing about this. In a city where the population is primarily black, where the group of potential jurors is almost always dominated by minorities, we somehow wind up with a group of 60 potential jurors for this case who are almost all white, and no one seems to know why. If that's not a noteworthy occurrence, what is? The price of housing in Northern Virginia?
1.24.2007 9:19am
rarango (mail):
Isn't the appropriate statistical test the Chi Squared test which would tell you if that 20/80 outcome was statistically signficant compared to the 60/40 black population?
1.24.2007 9:19am
rarango (mail):
Or whatever the appropriate percentages for each cell in the cross tabs
1.24.2007 9:29am
Richard Riley (mail):
David Bernstein obviously speaks for no one but himself - and I love his Volokh posts - but his complaint here still sits uneasily with the frequent gripes on sites like Instapundit, the Corner, etc. that the media FAIL to report on race/ethnicity in criminal matters where those bloggers believe it's important. Their argument is that the mainstream media silence themselves for PC reasons when they refuse to report, say, the fact that someone who has been arrested is of Arab ancestry or Muslim religious persuasion, and thereby ignore that some crime may be Al Qaeda related.

I guess I would agree with those commentators, and disagree with David here - race and ethnicity can be important facts of life though I wish they weren't, and we should hear about racial composition in situations like this.
1.24.2007 9:35am
Bpbatista (mail):
I think Occam's Razor applies here: Nina Totenberg is just an idiot.
1.24.2007 9:39am
AntonK (mail):
Surprised that Totenberg of NPR mentions Race in her reporting? You've got to be kidding!

NPR, thought the least diverse media organization in the U.S., is absolutely obsessed with Race...24/7.
1.24.2007 9:57am
Colin (mail):
I think Occam's Razor applies here: Nina Totenberg is just an idiot.

Puerile.

NPR, thought the least diverse media organization in the U.S., is absolutely obsessed with Race...24/7.

Do you have anything to support either claim, or is this just more unsubstantiated partisan venting?

Even Batson's not about having a jury that matches the demographics of an area, it's about not intentionally excluding people of a given race.

I understand. I was under the impression that you believed that the coverage was intended to create the impression that the parties were attempting to exclude minority viewers. If that's not the case, then I see even less reason for your complaints about these reports.

In any event, I think that a discussion of representative venires still starts with Batson - why was the case necessary, why it doesn't reach venire proportionality, whether its rationale holds for religion, gender, and other demographic factors, etc. That's a much more complex and much more interesting discussion than this, and, not coincidentally, less conducive to "NPR is dumb" responses.
1.24.2007 10:29am
Kovarsky (mail):
JB, Splunge, Bruce, and David,

If the venire is 80% white, then THAT is newsworthy. That's a sample of 60 people, not 12. Sure, the optimal way of reporting this is "the venire was unrepresentative and as a result, so was the jury ultimately selected," rather than just "the jury was unrepresentative." But that's hardly a serious reporting offense.
1.24.2007 10:46am
becker:
The racial composition of the jury is a simple fact. If it roughly mirrored the D.C. demographic, it would be an unsurprising fact -- dog bites man. The statistical anomaly makes it a much more interesting fact -- man bites dog. What the fact might mean is entirely different -- it could be random, or reflective of venire selection system, or decisions by the parties, or some combination of all three. It is susceptible to further research and/or unfounded speculation.

I know that Boston courts are working hard to change their venire system, as they are finding that minorities seem to be significantly underrepresented in the venire pool. That may be a factor in D.C. as well.
1.24.2007 10:48am
Kovarsky (mail):
Colin,

Batson is a strange beast, to be sure. I think the better way of putting your argument is that Batson reflects our concern over the racial makeup of jury pools - i.e. validates the idea that this is newsworthy. I don't think that Batson, as a legal rule, has much to say about a jury that is representative of the venire and where the defense is getting jurors stricken for cause based on extreme hostility to the administration which, in DC (and I'm guessing elsewhere), correlates with race.
1.24.2007 10:53am
Kovarsky (mail):
hey, will one of you cray supercomputer types :) determine the probability that there are 48 white people on the venire (out of 60) when p(W)=.4? Or, if somebody else has access to an electronic means of computing this,

P(48 Whites) = 60! / [(48)!*12!] * (.4^48)*(.6^12)

Splunge, is that right? Wait, that's only the probability for exactly 48 whites. Is there a faster way to figure out the probability for "at least 48 whites" other than just computing that for 49...60?
1.24.2007 11:01am
Bpbatista (mail):
Colin,

Sticks and stones . . .
1.24.2007 11:37am
Ken Kukec (mail):
Bruce Hayden:

Felons are inelligble for jury service, unless they have had their civil rights restored. Their names are stricken from the juror rolls. When they are mistakenly summonsed to duty, most jurisdictions employ a screening procedure (usually a questionaire), to remove them, and other legally-inelligible persons, before the venire gets to the courtroom.

Unlike peremptories, challenges for cause are exercised by the court, not counsel -- although, of course, counsel can alert the court to the potential basis for a challenge cause. Having a family member or friend who is a convicted felon, or a member of law enforcement, is alone insufficient to justify a challenge for cause; the test is whether the juror can still be impartial. Where such jurors are subject to peremptory challenges, usually it is the prosecution that will challenge the venire person with a felon in the family, and the defense will challenge the ones connected to law enforcement.

David Bernstein:

The venire in the Libby case was racially anomolous. Absent any basis for a claim to the contrary, we should leave it at that -- that it was simply an anomoly. (Even if the odds are 100 to 1, one case will have that anomoly, and this might just have been it.) Since there was an anomoly in the pool, however, I do not find it odd for a reporter to mention the racial breakdown of the panel that was seated. I think most reports did.

Indeed, it seems customary for reporters to mention the race and gender division at the end of jury selection in any high-profile case. (Race and gender are, afterall, the two most salient readily-discernable factors of American life and, not coincidentally, the two factors the courts prohibit from serving as a basis for peremptory challenges.) Which simply goes to show that we are still not that far removed from the days when only white males could serve on juries -- the days, that it, of Twelve Angry Men. When we no longer have use for cases like Batson or JEB v. Alabama -- when the phrase "acquitted by a jury of twelve white men" no longer resonates -- I expect these factors will cease to be reported.
1.24.2007 11:57am
A.S.:
Now I'm totally confused by Prof. Bernstein.

In the initial post he claims not to have any reason to think that the race of the jurors could have anything to do with the verdict:

I've been trying to figure out what possible relevance this has, and haven't been to come up with anything. Is there any reason to believe that whites are easier or harder on obstruction of justice defendants than are blacks?


But then, here in comments, Bernstein claims that, in fact, the race of the jurors may VERY WELL have an impact on the verdict:

whites in D.C. are overwhelmingly Democrats, too, and that whites in D.C. are much more likely to be political activists than blacks. A very large percentage of whites in D.C. are gay, and another large percentage are Jewish, not exactly Bush's core constituencies. I don't think it's at all clear that a white-dominated jury is DC is more likely to be sympathetic to a Bush official than a black-dominated jury, and, indeed, it's possible that it would be better for Libby to have more blacks on the jury, to the extent (and if) they may have a more negative view of prosecutors.


Well, jeez, Prof. Bernstein, maybe Totenberg thought that, hey, some of my listeners may have the same thoughts as to whether white (or black) jurors would be better for Libby, so perhaps they would be interested in the race of the jurors!
1.24.2007 11:57am
BCN:
Just a quick note on my experience with juries in DC. I lived in DC for over 6 years and every time within a week of the 2 year anniversary of my previous jury duty I was called (the rule is you serve one trial or one day and you are eligable once every 2 years). When I would go to jury duty there would always be more whites than blacks in the general pool for the day. When we would go to the court room for selection, a large group would be dismissed at the beginning if they had personal experience with police/law enforcement/corrections. This included either having family work for them, or having family arrested by them. Most of these were black. The two juries that I was in the eligible pool for, but did not get selected for were mostly white. These are the people at the end of the day that meet the requirements, not really a racial issue, but interesting none the less.

BCN
1.24.2007 12:01pm
Colin (mail):
I don't think that Batson, as a legal rule, has much to say about a jury that is representative of the venire and where the defense is getting jurors stricken for cause based on extreme hostility to the administration which, in DC (and I'm guessing elsewhere), correlates with race.

I agree. My impression was that Bernstein wanted to connect his complaints re: Totenberg to a general uneasiness that people focus on the racial composition fo juries. And that's a reasonable concern. I don't think that Batson controls or answers that discussion, just that it's a useful place to start for the reasons above, even if it's not applicable to this case (or cases like it).

I think the better way of putting your argument is that Batson reflects our concern over the racial makeup of jury pools - i.e. validates the idea that this is newsworthy.

Sure, I guess that works. But I don't think that this is newsworthy because of Batson. I just think that case is applicable to the larger discussion that I thought was beginning here. I think it would be newsworthy if the venire were detectably anomalous for any reason. And in fact Totenberg reported other reasons, such as potential jurors' connections to proposed witnesses, journalists, and parties.
1.24.2007 12:02pm
godfodder (mail):
It's really quite simple-- "black" is being used as a proxy for "Democrat." Nina is upset that the jury might have fewer Democrats than she would have liked.

Also, harping on the "all white" jury is supposed to be a pre-emptive strike. She's communicating with her viewer base, and saying to them "The trial's unfair! They kept blacks off the jury." That way, when Libby gets off, they can smear the whole proceding with the taint racism and "unfair" jury exclusion.

Makes ya proud to be an NPR listener, don't it?
1.24.2007 12:04pm
nunzio:
White or black, who can afford to sit on a six-week trial? Many employers will not pay you for jury duty and the $17 per diem won't cut it.

I want to know what jobs these jurors have. Are they retired or gov't workers? If their employers pay full salary for jury duty, let me know where they work. I'd love to work there.
1.24.2007 12:20pm
Porkchop (mail):
I'm not sure whether this sheds any light on jury selection and composition, but I was just told by a lawyer who has litigated against him that Libby's lead counsel is African-American. (I don't know him, myself, but I don't have any reason to disbelieve my colleague.)

I would assume that he is perfectly capable of dealing with these matters, and would have raised (or will raise) them if he thought (or thinks) that the composition of the jury was (or is) a problem for his client.
1.24.2007 1:33pm
uh clem (mail):
Why not tell routinely tell the audience how many Jews, Catholics, Protestants and Muslims are on the jury? Senior citizens? Disabled? Persons of Irish, Scandinavian, and Italian descent?


Anybody here ever worked in radio? The job of a radio reporter is to be the listener's eyes and put into words what is easy for everyone who's there to see with their own eyes.

Anybody in the court room can see the racial / gender makup of the jury. The other categories mentioned are not easily determined by looking. Well, maybe disabled, depending on the disability. I'm sure that

Agreed that the media can sometimes be obsessed with race (I like happylee's analogy that it's like tabasco) but this is more or less straight reporting. It's what transpired in the courtroom. "We've got a jury, here they are."

Should she supress this information?
1.24.2007 1:46pm
Splunge (mail):
Kovarsky asks...

hey, will one of you cray supercomputer types :) determine the probability that there are 48 white people on the venire (out of 60) when p(W)=.4

The binomial distribution (which is what we're talking about) very quickly becomes a Gaussian for larger pools. Hence the probability that a random selection of N people out of an infinite pool that is w white will be f white is:

P(f) = 1 / sqrt[2πNw(1−w] exp[−N(fw)^2 / (2w(1−w))]

w and f are both decimals, e.g. for an infinite pool that is 40% white w=0.4, and for a jury (or venire) that is 80% white f=0.8.

To answer your question, the probability that 48 of 60 (0.80) randomly selected people will be white if the pool is 40% white is about 1 in 10 billion. The probability that at least 48 of 60 people are white is some very small amount larger.

The very noticeable fact about the Gaussian distribution is that the probability of deviations from the mean becomes exponentially small as the size of the sample increases (note the factor of N in the numerator of the exponent).

Hence, if DC is 40% white, it would be pretty commonplace to find among a randomly selected group of 5 residents that 80% are white, but unusual to find among a randomly selected group of 12 residents that 80% are white, and essentially impossible to find among a randomly selected group of 60 residents that 80% are white.
1.24.2007 2:03pm
NY (mail):
I know one person brought this up earlier, but everybody here is so focused on why a DC jury being disproportionately white is bad, generally assuming that a racially proportional mix (assuming that's the 'correct' result) would tend to be Democratic downtrodden types who will stick it to a Republican operative. But this seems assumes that their experience as blacks in American politics will defeat their experience as blacks in the criminal justice system. It's not necessarily true: blacks (particularly in the DC area) will have had more run-ins with the system, not all of which are of the good kind of run-in, and so will be more likely to disbelieve law enforcement personnel and representatives, more likely to believe in crackpot defense theories of set-ups and entrapment and investigative shenanigans. After all, Marion Barry was caught with crack (I think) on video (on video!); but he was brought into that room by a sometime girlfriend working for the cops, so an obvious case of entrapment there, right? Similarly, though even some of the jurors believed OJ did it, the jurors generally discounted prosecution evidence as tainted by the lying racist cops (not all but they had Furhman on tape!) the prosecutors presented; this is even though that jury was largely female and so could be expected to irrationally side with the abused-wife victim. I use to keep a cut out of a Washington Post article describing the large percentage of blacks who believe that the CIA is involved in spreading crack cocaine and/or AIDS to destroy them; considering their experience in America, I can understand it.

As such, the defense may have made a mistake here (this assumes they could and did control the racial make-up of this Libby jury), perhaps they should have kept more blacks on the jury and feed them stories of "perjury traps" and being set up by the Man.
1.24.2007 2:06pm
Kovarsky (mail):
godfather,

perhaps you would like to bring your sarcasm to bear on the explanation for the venire is 80% white.
1.24.2007 2:16pm
Christopher Cooke (mail):
As a follow up to the posts yesterday, did everyone notice how Ted Wells, Libby's attorney, is trying to make him out to be the victim/fall guy of the Big Bad Bush Administration's efforts to save Karl Rove? I have to think that Wells believes he has a Bush unfriendly jury, and now is playing his case to that audience. I don't think any competent lawyer (and Wells, by reputation, is supposed to be very good) would advance such an argument if he thought the jurors were pro-Bush people. With this pitch, Libby is seen as someone for whom the anti-Bush jurors will feel sorry; maybe he is pitching his case to the two African Americans left on the jury (for a hung jury strategy, if we assume they are Democrats) or maybe David is right and most of the jury is anti-Bush in its leanings, so this is his acquittal pitch to this particular jury.

Anyway, the ironies abound in this strategy.
1.24.2007 4:05pm
uh clem (mail):
I have to admit to being surprised and somewhat confused by this attack on the administration. I didn't see it coming, and I didn't understand it at first. You may be right that Wells has adapted his defense to the jury, playing on their anti-Bush sympathies, but I think there's a better explanition:

It's laying the groundwork to discredit the 8 administration officials who are going to testify that Libby knew about Valerie's status before he talked to Russett. "You can't believe them. They're conspiring against me to protect Rove."

Yes, it's a pretty weak defense. But coupled with the chewbacca effect (see http://en.wikipedia.org/wiki/Chewbacca_defense) it might just be crazy enough to work.
1.24.2007 4:18pm
starimomak (mail):
A very large percentage of whites in D.C. are gay, and another large percentage are Jewish, not exactly Bush's core constituencies.
David Bernstein

Ah, now here we have something interesting. This case is certainly ethnically charged, with Libby being both Jewish and associated with the neo-conservative group that was so instrumental in promoting this war -- which is of course the ultimate reason for the trial. Also, there has been some reference at Kausfiles and elsewhere about Libby's conversations with Chris Matthews involving allegations of anti-semitism.

I don't really understand it all, but the fact is that this is an ethnically charged case. Now, is it possible that the defense angled for a high number of Jewish (and therefore white) jurors in the hope of gaining the sympathy of co-ethnics/co-religionists? We don't know, of course, because Totenberg didn't give us that info (as far as I know) , but I think if would be very relevant.

The trouble with libertarians is they see everything as revolving around individual economic preferences. If David B. engaged in a moment's self introspection, he would find that ethnicity -- thinking with the blood -- plays a huge part in human behavior.
1.24.2007 5:39pm
Justice Stevens (mail):
Judge Walton has previously denied defense requests for classified government records, which Prosecutor Fitzgerald then argued successfully were an attempt at graymail. Maximizing fallout to the Bush administration is a graymail tactic, too: "Either pardon my client or suffer the bad press and a ruined legacy. Only you can stop the bleeding, Mr. President."

Wells' defense looks strong to me. Libby does not need to testify, because Cheney must. Recall that in his opening argument, Wells read from a note handwritten by Vice President Cheney. Not only will Cheney testify, Wells is saying, but Cheney will validate the defense theory and Cheney's testimony will be corroborated by documentary evidence. It is the administration hacks disloyal to Cheney who are to blame and who will lack credibility in the courtroom. No witness will be able to prove Libby lacked a bad memory, because a bad memory cannot be impeached as a prior inconsistent statement. The credibility of hostile witnesses may always be attacked. Memory and credibility are the largest loopholes in the Federal Rules of Evidence. Not to mention Wells bears no burden of proof. Wells is on solid ground.

Assume that Bernstein is correct about the demographics of DC. Given that, perhaps Wells was looking to exclude jurors who had an unclear or unfocused bias against the Bush administration. Wells doesn't want jurors who hate all persons associated with the Bush administration. Libby needs jurors who can distinguish between loyal public servants and the minions of the evil puppetmaster. Demonizing Rove, who Cheney is known to dislike, by the way, is the key. Wells wants jurors who know who Rove is.

Perhaps many of the black jurors in the pool were simply less political, as Professor Bernstein implied, and so might be less likely to distinguish carefully between Rove and other Bushites. One black woman who was excused was an educated professional with a dislike for the administration, but she hadn't read a newspaper since her baby had been born. There's nothing racist about excluding her because she probably hasn't followed the papers closely enough to recognize immediately the distinction between Rove and Cheney.

To the extent that some permissible reason for excluding a juror correlates with racial classification, it is newsworthy so that deliberation like this may take place. I take Professor Bernstein's point, though, that it would be very silly for a correspondent to suggest over the radio that Libby's defense counsel would pursue a racist juror-striking tactic without mentioning there are plenty of sufficient alternative explanations for his juror-striking pattern. The listener might not know that Wells is black or that there is other context helping to explain the striking pattern. Totenberg may be misleading to her listeners to conclude: "That Republican leaker hired a racist attorney!" Which is crazy.

As an aside, where exactly is the strength in Fitzgerald's case?
1.24.2007 6:38pm
Harry Eagar (mail):
starimomek, if the defense was trying to get a mostly or largely Jewish jury, its chances must have been pretty low.

Totenburg, in earlier reports, gave as much detail about certain jurors as was public -- down to addresses, occupations and so on.

As a reporter myself, I see her as in a difficult position. It would take time, resources and -- most of all -- access to information to give some meaningful assessment or profile of the jury.

She couldn't do that, for reasons lawyers know better than I.

Nevertheless, NPR is obsessed with skin color and, unable to give us any meaningful information about the jurors, it told us their skin color. They aren't even conscious of their racism.

That, at any rate, is the gracious explanation of their color-saturated reporting. There are worse interpretations.
1.24.2007 8:32pm
Colin (mail):
NPR is obsessed with skin color and . . . aren't even conscious of their racism. That, at any rate, is the gracious explanation of their color-saturated reporting. There are worse interpretations.

People keep throwing these charges of racism and race-obsession. Do you have any facts, or is this just a conservative shibboleth? Do you lose your Party card if you fail to trash NPR in a timely manner?
1.24.2007 8:45pm
Harry Eagar (mail):
I dunno, they said the check's in the mail.

Have you ever listened to NPr? To their assumption that voters always vote according to skin color, for example?
1.24.2007 10:38pm
Mike G in Corvallis (mail):
Colin wrote:

Totenberg says that in DC, "juries typically are overwhelmingly minority."

OK, that's what she says. Does anyone know whether this statement is actually true? And if so, is it still true for high-profile cases with expensive attorneys?

Until we have some real-world comparison data, all of the speculations about "probabilities" are essentially irrelevant to the significance of the datum.
1.24.2007 10:47pm
Seerak (mail):
"No one who listens to NPR could ever be 'surprised' by any kind of reference to race. NPR is obsessed with skin color. "

How do you maintain a race-conscious population?

Easy: remind them of it, every chance you get.

People keep throwing these charges of racism and race-obsession. Do you have any facts, or is this just a conservative shibboleth?

These are not charges, they are observations. This is just ho-hum, to-be-expected behaviour on the part of the Left and those who think in its terms.

If one wanted to exonerate NPR, it would be easier and more plausible to do so by showing that NPR isn't exclusively left wing, than by the laughable and discredited notion that the Left is anti-racist.
1.24.2007 11:30pm
Christopher Cooke (mail):
Justice Stevens: the strength in Fitzgerald's case lies in Libby's statements to the grand jury, essentially that he learned of Ms. Wilson's status as a covert agentoperative from reporters, who were a nonclassified source, and therefore he didn't violate the law against knowingly outing a covert agent. Fitzgerald has several reporters lined up, including Tim Russert, who will say that Libby told them about Ms Plame Wilson's status, or confirmed it, and not the other way around. Fitzgerald will say this was a material lie because Fitzgerald was investigating whether this statute protecting these covert agents' identities --the Intelligence Identities Protection Act---was violated, and one element of it was how the defendant learned of the agent's covert status--from a classified or official source or by some other means. By saying he heard this from Russert, Libby was clearly trying to escape scrutiny for violating the Intelligence Identities Protection Act. The irony is that Libby probably didn't violate the statute, incidentally, because, while he learned that Ms. Wilson worked for the CIA, I am not sure he knew she had been a covert agent.

So, in some ways, this is like the Martha Stewart case, where the jury found she lied about conduct she thought was insider trading (but which may not have been) because she thought it was and didn't want to get in trouble for it.
1.25.2007 12:41am
Justice Stevens (mail):

Fitzgerald will say this was a material lie because Fitzgerald was investigating whether this statute protecting these covert agents' identities --the Intelligence Identities Protection Act---was violated, and one element of it was how the defendant learned of the agent's covert status--from a classified or official source or by some other means.



That's nice. But the judge has ruled the covert status of Ms. Wilson is irrelevant. The judge has also ruled that the IIPA is irrelevant because the violation of it was not charged. Fitzgerald will not be able to present the case you say he will.
1.25.2007 1:53am
happy lee:
What irks me about all this is that, just like Martha, Libby will be sent to jail for lying to feds. But feds are immune for lies they tell. (I forgot USC cite to section that says you can't sue a fed for lying.) This is absurd. There's no other way to look at it.
1.25.2007 3:35am
Kovarsky (mail):
Justice Stevens,

What does your discussion of ther merits have to do with the 80% venire?
1.25.2007 4:06am
Kovarsky (mail):
Justice Stevens,

What does your discussion of ther merits have to do with the 80% white venire?
1.25.2007 4:06am
Justice Stevens (mail):
Kovarsky,
Why do you think double-posting makes your comment any more sensical?
1.25.2007 4:47am
Harry Eagar (mail):
Today, in its "Across the Divide" series on NPR, Juan Williams opined that race is the greatest divide in America.

I'd accept that it's been the most persistent, for obvious reasons.

But greatest? Greater than temperance/drinker; capitalist/socialist; Protestant/Catholic or Christian/Jew; soft money/goldbug; suffragette/patriarchal; small government/government; isolationist/internationalist?
1.25.2007 1:00pm
Kevin P. (mail):
Colin:

People keep throwing these charges of racism and race-obsession. Do you have any facts, or is this just a conservative shibboleth? Do you lose your Party card if you fail to trash NPR in a timely manner?


Full disclosure: I am a brown-skinned immigrant.

I have been listening to NPR for over ten years. It is overwhelmingly an organization of upper class white liberals who are guilty about who they are - and bend over backwards in the other direction.

I don't think that NPR is racist, but it is certainly fair to say that it is exceedingly race conscious and apologetic for the great sins of the evil White America.

In this particular case, I think that Nina Totenberg is just an overrated lawyer who thinks that her personal access to the judiciary equals a good understanding of the legal issues. On more than one occasion, I have caught her oversimplifying an issue, sometimes to the point of becoming outright wrong, and always with a liberal slant.
1.25.2007 1:24pm
Kevin P. (mail):
Sorry, meant to say "overrated journalist", not "overrated lawyer" about Nina Totenberg above.
1.25.2007 1:25pm
Colin (mail):
I asked if anyone had any facts to support their whining about NPR's supposed obsession with race. I got this:

These are not charges, they are observations. This is just ho-hum, to-be-expected behaviour on the part of the Left and those who think in its terms.

and

If one wanted to exonerate NPR, it would be easier and more plausible to do so by showing that NPR isn't exclusively left wing, than by the laughable and discredited notion that the Left is anti-racist.

and

It is overwhelmingly an organization of upper class white liberals who are guilty about who they are - and bend over backwards in the other direction.

and

Nina Totenberg is just an overrated [journalist] who thinks that her personal access to the judiciary equals a good understanding of the legal issues. On more than one occasion, I have caught her oversimplifying an issue, sometimes to the point of becoming outright wrong, and always with a liberal slant.

The answer seems clear - no one has any facts. Just the standard partisan bitching and moaning. It might get the fellow travelers all riled up, but the best answer to "Do you have any facts?" is rarely, "We don't need no stinking facts, it's just so liberal!"
1.25.2007 2:35pm
Splunge (mail):
OK, I have a fact. An empirical observation.

Today I turned on the radio in the car while I drove my son to school. The very first thing I heard was a story about race. Yesterday I drove to the gym. On the way, I turned on NPR and heard some stuff about Latino/Black race relations in LA. I listened to NPR for about 20 minutes over two days, and heard two discussions involving race.
1.25.2007 4:25pm
Colin (mail):
Twenty minutes over two days is better than the zero information anyone else has offered, but it's still negligible. It certainly doesn't persuade me that you're undertaking an unbiased, fact-based analysis rather than party-line rhetoric.

As for your anecdote, I just visited foxnews.com, and counted--in less then ten seconds--two stories on the front page dealing with race. Does Fox share NPR's supposed obsession with race?
1.25.2007 4:55pm
Kevin P. (mail):
Colin (mail):

Twenty minutes over two days is better than the zero information anyone else has offered, but it's still negligible. It certainly doesn't persuade me that you're undertaking an unbiased, fact-based analysis rather than party-line rhetoric.


Next you'll be arguing that NPR isn't a liberal organization because no one can produce the "facts" that you demand to show that they are liberals.

No one is demanding that NPR shut down their operations because they are racist and unbalanced. Instead, people are making simple experiential observations about their many years of listening to NPR. Naturally, they may not be precise as in being able to say that 64.78% of NPR stories related to race, but you can't blow off all these observations by demanding "facts" for even the most ordinary observations.

I am perfectly willing to say that Fox News tends to be more conservative than NPR. I don't have the "facts" there either. Do you disagree with my basic opinion?
1.25.2007 5:10pm
Harry Eagar (mail):
I thought I just offered an empirical fact: that NPR itself said, just today, as if I had ordered it up,that race is the most divisive issue in the United States.

No one who knows the history of the country would accept that.
1.25.2007 7:42pm
Colin (mail):
Next you'll be arguing that NPR isn't a liberal organization because no one can produce the "facts" that you demand to show that they are liberals.

NPR is staffed by human beings, NPR is staffed by liberals, NPR is staffed by race-obsessed liberals, NPR is staffed by race-obsessed liberals who want everyone else to be race-obsessed, NPR is staffed by ROLWWEETBRO who worship Moloch and only ever talk about infant sacrifices on the air...

It's a spectrum, see? Some statements are innocuous and don't require any support. Some are reaching, and you won't be taken seriously (by anyone who's not a fellow partisan cheerleader) if you just mumble the party line without any factual support. Also, it's one thing to not have the facts before you speak. If you can't find any facts after someone challenges the truth of your assertion, maybe you should question your rhetoric?
1.26.2007 9:48am
Colin (mail):
Today, in its "Across the Divide" series on NPR, Juan Williams opined that race is the greatest divide in America. . . . I thought I just offered an empirical fact: that NPR itself said, just today, as if I had ordered it up,that race is the most divisive issue in the United States.

An NPR commenter said that. Once. That's not a particularly controversial statement. You may not agree, but it hardly reflects an obsession with racial issues. And as for "no one who knows the history of the country would accept that," a student of the slavery, the Civil War, Jim Crow, etc. might disagree. Again, you might not agree, but it's hardly a way-out-there statement.
1.26.2007 9:55am