A GingerJury of My Peers

In my mid-20s I got a call from a lawyer representing a former employer. It had been more than a year since I worked for the company. I wasn’t even living in the same state anymore. He wanted to talk to me about an incident that happened when I was working for the company. A former colleague of mine said he had been injured on the job as a result of the incident and was suing the company. He claimed he had become permanently disabled as a result of the incident.

I was there when the incident happened, sometime in 1985. I was the only other person there when it happened. The only eyewitness. In fact, if my former colleague really had been seriously injured, I might have been involved. The lawyer assured me that I faced no personal legal liability. I told him the outline of what I remembered. Then he asked me if the company could fly me back to the city and state where it happened so I could testify in court. I said yes. Gulp.

Sorry, I’m going to be really vague about some of the specifics.

“Gingers Are the Black People of White People”

In case you don’t know: I have red hair. Had red hair. It’s now turned a weird golden brown with some orange-gray on the sides. But I still think of myself as a redhead. It’s part of my identity.

Also: Many, possibly most, redheaded people have at least a mild persecution complex. That’s not really what this post is about. But if you don’t understand this about redheads, the rest of this story isn’t going to make as much sense. Our mild persecution complex is founded in our mild experiences of persecution: teasing, name calling, bullying, discrimination and worse. It’s above and beyond the garden variety “kids being psychopaths” stuff that we all know about. If you’re interested, there’s a whole Wikipedia article on discrimination against people with red hair with plenty of footnotes.

Someone once told me, “Gingers are the black people of white people.” I cringed. And also: I understood.

I am absolutely not comparing the ginger experience to the black experience.

I know that the teasing I experienced, and the feeling of being socially marginalized is of a different degree and nature from the discrimination black people face in American society.

I also know I have lots of unearned privilege for lots of reasons: white, male, American, ridiculously charming, etc. But if a redheaded person tells me they’ve been through some difficult stuff because of their carrot top, I will believe them.

Enough about that.

Now Back to Court…

On the day of my testimony I was nervous. I waited alone in a long, empty hallway, on a bench outside the courtroom.

When I was called in, I walked towards the witness stand to the left of the judge. I was sworn in, and I sat down. The chair swiveled. I started swiveling nervously, and I caught myself after a few seconds. Oh God! I look like a neurotic nervous weirdo!

I looked around and saw my former colleague all bandaged up as if he’d fallen down a long flight of stairs just that morning.

Theatrics? I sure hoped so.

The Injury Gin-Jury

Then I looked over at the jury. And this is an approximation of what I saw:

Jesus, would you look at all those redheads!

Honestly, I don’t remember how many redheads were in the jury. At least four. So let’s say there were four. Enough redheads that my reaction was, Now there’s something you don’t see every day in the wild.

I answered questions from the prosecution and the defense. Among other things, I said, truthfully, that I didn’t think my colleague was seriously injured in the incident – didn’t think he was injured at all. I told the court that we carried on with our work that day as though nothing was wrong.

And then the court let me go home. I was relieved to be out of the hot seat.

Did the Defense Pack the Jury?

After the experience, I wondered, Did the whole trial hinge on whether the jury was sympathetic towards me? Did the defense preferentially pick redheads from among all the potential jurors, hoping to tug at some ginger solidarity?

For a long time I believed both of those propositions. I assumed that the jury had been packed. Until I started writing this blog post.

Random Redheads

I did some math. Redheads constitute approximately 4 percent of the US population. The chance of picking 12 Americans at random, and getting four redheads is less than 1 percent. Its roughly the same chance of flipping a coin and getting the same result 11 times in a row.

Seven redheads, as depicted in my sketch, is statistically impossible in a randomly-selected jury.

Yes, I took a stats class in college.

Nonrandom Redheads

Alright then. What would a lawyer have to do to get four redheads on a jury? Again, with 4 percent of the population, the lawyers would have to interview 100 potential jurors to have near 100 percent chance that four redheads would come through. And they would have to reject 88 potential jurors in order to be nearly certain to end up with four redheads and eight non-redheads.

On the other hand, if they interviewed only 50 potential jurors they would likely find two redheads. But they’d have a 50 percent chance of finding four.

Maybe they got lucky – if, in fact, maximizing redheads was what they were going for.

Update: Skepticism Rears Its Red Head

There are tens of thousands of juries seated in the USA every year. If the chance of a four-ginger jury are 1 in 100, that means that four-ginger juries are seated all the time. I just happened to be a witness for one of these 1-in-100 juries.

I talked to a friend who is a lawyer. He thought it unlikely that the defense would try so hard to pack the jury with redheads – especially for sympathy towards a witness rather than a plaintiff or a defendant. I also posted the original version of this post to a lawyerly community on Reddit. These conversations had the effect of rattling my “because it happened to me” orientation. My salient gut feeling of astronomical improbability withered. Plus it flies in the face of how juries are actually selected. (See the comment by Matthew below.)

Using an example from before: If 400 people all flip a penny 11 times, one of those people is very likely to get the same result on every flip – all heads or all tails. If that random person decides that the whole exercise was designed just for them, they’d be dumb, or paranoid, or experiencing “illusory correlation.” In any case, the coin flipper is almost certainly wrong.

Off by a Factor of Three

But here’s another detail: The plaintiff – my former colleague – was black.

In the end my former colleague won a hollow victory. The court found in his favor, but awarded him no damages. My former employer chalked that up as a win.

In those days, in the city where this took place, the black and African-American population was more than 12 percent. If the members of the jury were chosen randomly – that is without regard to race or ginger status; to be representative of the population – it should have been three times more likely to have black jury members than ginger jury members.

The lawyers may not have been able to select for anyone who was redheaded (if they were so inclined). But by using preemptory challenges – the defendant’s or prosecutor’s right to reject a potential juror without stating a reason – it would have been feasible to select against anyone who was black. It is a common practice to exclude jurors because of their race. The practice is less common now, but it was more common when this case was before the court.

As far as I can recall there were no people in the jury box who looked like the plaintiff.

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May 5, 2024: This post was updated.

• A new section titled “Update: Skepticism Rears Its Red Head,” addresses skepticism about the statistical improbability of the jury composition, and comparison with coin flipping to illustrate the concept of illusory correlation.
• The “Off by a Factor of Three” section introduces the potential for exclusionary practices in jury selection.