Hastings juror: Most all saw guilt

“Less than a handful” of jurors led to a mistrial in the manslaughter case against a former Little Rock police officer, one of the jurors said Monday, the day after the jury told Pulaski County Circuit Court Judge Wendell Griffen that they could not reach a verdict.

A majority of the 12-member, all-white jury determined that former officer Josh Hastings had acted recklessly when he shot and killed 15-year-old Bobby Moore III last August, said Juror No. 3 on Monday. The juror asked that her name not be printed because she feared public retaliation for discussing the case.

Those who did not vote to convict Hastings had reservations about convicting a police officer whose defense was that he fired into a vehicle traveling in his direction to save himself, the juror said. She did not want to give a precise number on votes for or against guilt.

Hastings will be tried on the same charge later this year, but the case will be heard by a new jury.

Also on Monday, the judge said that while an all-white jury in Little Rock is unusual, no race-based objections to dismissal of juror candidates were made during the jury selection process. Hastings is white; Moore was black.

“It happened because that’s the way one side exercised its challenges, and there was no objection to it by the other side,” Griffen said. “Given what happened in this case, that would certainly be something worth considering going forward. I’m not telegraphing anything, but the past is prologue.”

Current and former prosecutors in Pulaski County say they do not choose jurors on the basis of race, and circuit court officials said they do not collect information about a potential juror’s race or sex.

The jury of nine women and three men deliberated for two days in the Hastings case.

Court authorities, former prosecutors and criminal defense attorneys who try cases in Pulaski County courts said Monday that it was unusual to have an all-white jury but not unheard of. Several court authorities said it has become more unlikely since the state started using driver’s license registries to call jurors instead of voter registration roles - a move accepted by the majority of other states and one that has increased the socioeconomic and ethnic diversity of jury pools, they said.

Little Rock Mayor Mark Stodola said he could not comment on any of the specifics of the Hastings case because Hastings was a city employee when the shooting occurred. But as a former Pulaski County prosecutor in the 1990s, Stodola said, he could not remember a case tried in front of an all-white jury.

“I think it’s a bit unusual,” he said. “Because we’ve expanded to select on driver’s licenses, it’s expanded to more people from different socioeconomic means and a broader base, which makes it a little more surprising frankly.”

In the Hastings trial, the 12 jurors, along with two alternates who were also white, were chosen from a pool of 84 potential jurors who showed up on June 17 for jury duty - a little less than 65 percent of the 131 Pulaski County residents summoned for the jury pool. Of those, Griffen dismissed 29 in the opening round of jury selection, many because of time, work or medical conflicts.

Pulaski County’s Circuit Court divisions do not track demographic information about jurors, authorities in the 5th Division said Monday, noting that they did not have race or gender information for the jury pool for the Hastings trial.

Attorneys have the option of objecting to the dismissal of a juror if they believe that the dismissal is based solely on race, a legal procedure called a Batson challenge. Judge Griffen said neither side raised a Batson challenge during the jury selection for the Hastings trial.

Griffen said it’s important for a judge to be cautious in raising an objection if one sees a pattern in dismissals, because the judge would then have to rule on his own inquiry - something judges like to avoid.

“There is no hard and fast prohibition to the trial judge making an observation or inquiry,” he said. “When one sees a pattern appears to be progressing, one expects the other party to raise a challenge, but that did not happen in this case. One is cautious as a judge about trying to interject one’s self into the process.”

Griffen, who designed, implemented and taught a class at the University of Arkansas at Little Rock on law and cultural competency, said he could not speak about the Hastings trial case specifically in the context of his experience.

“I can say in general terms that I think given our social history and the reality of the history of our legal process where people have been excluded on the basis of religion, race or gender, I think it is all the more incumbent on us to be zealous in ensuring that we have a process that is inclusive and culturally competent,” he said.

“I would hope the public could trust the lawyers, and the trial judge, to ensure such a process would happen … in every case.”

On Sunday, jurors deliberated for five hours - at one point requesting a dry-erase board to aid in the discussions - after having met for five hours on Saturday.

But the group could not come to a unanimous decision for innocence or guilt and whether Hastings took a justifiable risk by standing in front of the vehicle before firing.

“We went back and forth over that for a long time and I thought, and most of us saw, that he had an alternative action based on the evidence,” the juror said. “The theory was ‘why didn’t you just get out of the way?’”

The juror described her fellow jurors as an “intellectual bunch” and said the deliberations were often “very heated.” During the discussions, some jurors would take physical positions in the room showing they were for innocence or guilt on the manslaughter charge, she said.

At least once, the jury requested an opportunity for smokers to be escorted outside for a break. Griffen instead allowed a window in the jury room to be opened.

Bill James, the defense attorney for Hastings, did not return phone calls for comment Monday.

Criminal defense attorney John Wesley Hall, who was not involved in the Hastings trial, said in his experience as a defense attorney all-white juries don’t happen often, partly because of Pulaski County’s racial makeup.

“In this case, based on census numbers, there should have been potentially four African-American jurors by the pure luck of the draw,” he said.

Pulaski County Prosecuting Attorney Larry Jegley returned calls for comment to the prosecuting attorney’s office. Jegley, who did not try the Hastings’ case, said that his deputies and staff do not disqualify jurors based on race and that he does not believe that race played into the jury’s decision.

“Race is so far off our radar when picking a jury,” he said. “We don’t pay attention to race, we pay attention to the answers to their survey questions. The justice system is color blind, as it should be. You get 12 good citizens together regardless of race and you ask them to do the right thing.”

Mark Frasier, lead public defender for the Garland County public defender’s office, worked in the Pulaski County prosecuting attorney’s office for almost two decades under three different prosecuting attorneys.

“I can assure you that it comes from the top that choosing a jury based on race is something you just do not do, something that will not be tolerated,” he said. “We were trained to not pick juries according to race, and you sure did not strike people according to race. Not under Chris Piazza, no way. Mark Stodola, not tolerated. And Larry Jegley, you can forget about it happening.”

Frasier said he has tried cases against and alongside both attorneys in the Hastings trial and said he had a hard time believing either would make decisions based on race.

“Without hesitation, I can say John Johnson has put plenty of black people on juries before and Bill James has probably kicked as many white people off of juries before,” he said.

Several national studies have been conducted by nonprofit groups, universities and think tanks looking at how racial makeup of juries affects the outcome of a case, but none of those studies focused on Arkansas specifically.

The National Center for State Courts, a nonprofit court-improvement organization that serves as a clearinghouse for research on court proceedings, keeps records on jury selections and jury management processes.

Greg Hurley, an analyst at the center, said there’s a certain amount of luck that comes with jury pools, but the center advocates picking juries that are reflective of the community as a whole.

“We know that having diversity on a jury helps with discussion and helps bring out facts better than cookie cutter juries with only one type of demographic,” he said. “The other thing we know is that having a good jury panel gives the verdict some credibility in the community. When the pool does not reflect the demographics of the community, it does not have the same credibility.”