Defense attorneys representing Russell Brown III, who is charged with killing a Virginia State Police Trooper 3 years ago, tried to push his trial to a later date arguing the charged atmosphere surrounding the killings of 5 Dallas Police Officers was too hostile for their client to get a fair trial. The Judge did not accept this rationale for moving the trial date – he felt the Dallas police shootings were irrelevant to this case. I agree with the Judge.

If the trial were in Dallas as opposed to Virginia, and involved a defendant allegedly killing a Dallas police officer 3 years ago, perhaps then a Judge could understandably postpone the trial indefinitely until things cooled off. But this Virginia Judge had it right in thinking this particular defendant could receive a fair trial. Knowing this, I would expect that this Judge would allow both the prosecution and defense to rigorously question prospective jurors during the jury selection process. Doing so would ensure that, even though many potential jurors have some knowledge about what happened in Dallas as well as the shootings in St. Paul and Baton Rouge that preceded the Dallas killings, none of the jurors have such strong opinions that they would have difficulty being fair and evaluating the evidence solely based on what was presented in the courtroom. But the Judge denied a request to ask prospective jurors questions about the Dallas tragedy and the police shootings in St. Paul and Baton Rouge. This I disagree with.

The defense in the Virginia case wanted to ask questions such as, “Do you believe that those responsible in Dallas could be deserving of mercy?” and “What do you believe is the appropriate punishment for those individuals responsible for the death of the police officers in Dallas?” Asking questions to prospective jurors that get at their attitudes regarding the police, police shootings, a recent event where police were killed, etc., would elicit the exact type of bias and partiality that our system of justice seeks to eliminate when seating a jury. Not asking these questions significantly decreases the chances that seated jurors will be unbiased and impartial. There is no harm, and in fact probably real benefit, in allowing the parties to delve into these topics during the questioning of potential jurors at the outset of trial.

Many jurors harbor strong opinions about the police and about the recent spate of police shootings across the country, and this goes in both directions: some think the police shoot first and ask questions later while others say there would be no shootings if people simply listened to the police when told to desist. Knowing that these attitudes exist and shape how someone will assess evidence in a police shooting case, the system requires a discussion of these topics when the parties are picking a jury. For the attorneys involved, instead of worrying about how these issues that have come to the forefront will affect their client (or the public), the charged atmosphere should be used to create a helpful dialogue with jurors during voir dire.

If I were picking a jury in a police shooting case, whether it would be a police officer accused of using excessive force or a civilian accused of shooting a police officer, I would want to hear what jurors have to say about the videos from St. Paul, Baton Rouge, and Dallas. Most prospective jurors will have a reaction to it, and be able to set aside their feelings about those shootings in order to evaluate an entirely different case fairly. But a handful of prospective jurors will harbor enough bias that they could not be fair in a police shooting case. And again, this goes both ways in the aftermath of the recent shootings: some pro-police jurors might feel that given what happened in Dallas, police officers have to be extra cautious all the time and that there are many “cop killers” out there looking to shoot an officer of the law, and this sentiment might cause this particular juror to have difficulty finding against any police officer accused of a crime. Conversely, some anti-police jurors might feel that given what happened in St. Paul and Baton Rouge, officers are too quick to pull the trigger and do not have any concerns about shooting at unarmed black men, and this sentiment might cause this particular juror to have difficulty being fair to a police officer who is innocent until proven guilty.

The court in Virginia was right to keep the trial date despite the defense arguing the atmosphere is too charged. But this Judge, and Judges moving forward need to let attorneys ask the probing questions so that the jury consists of people who will be fair and impartial. The only way to get at strong bias is to start a conversation and listen to what potential jurors have to say. The recent string of shootings must be part of the dialogue.