Stereotypes Defied in Second Tolliver Trial

By: Micah Holmquist and Ellyn M. OngSam W. Shipp wasn’t there. But he was apparently on the minds of attorneys when the jury was chosen for the second trial of Jonathan Tolliver, a 19-year-old African American charged with murdering white Chicago Police Officer Michael Ceriale.

Shipp was the only black man—and the lone holdout—on the jury in Tolliver’s first trial. Shipp’s refusal to agree to a guilty verdict led to a mistrial on Feb. 8.

Jury selection was crucial in this case, said Melissa C. Brown of the law firm Foley & Lardner and one of Tolliver’s attorneys. No physical evidence connected Tolliver to the shooting, she said, and no witnesses in the trial identified him as the gunman. So jurors had to decide Tolliver’s guilt or innocence based almost entirely on which witnesses they believed.

The Chicago Reporter observed jury selection on April 30 and May 1, as well as the entire second trial, which began May 2 and lasted three weeks. Prosecutors, defense attorneys and presiding Judge Dennis Porter questioned about 100 prospective jurors. Reporter staff observed 88 of those interviews.

Defense attorneys sought black jurors, but prosecutors told the Reporter that race played no role in jury selection. But racial stereotypes didn’t hold up in Tolliver’s retrial.

As far as Tolliver’s defense attorneys are concerned, the ideal jury would have been “12 Sam Shipps,” Brown said.

“He had been to the Robert Taylor Homes. He knew what the gangs were like out there. He had had dealings with the police,” said Richard P. Steinken, another Tolliver attorney and a partner with the law firm Jenner & Block. “He knew what it was like to grow up as a black man in the city.”

Police said Ceriale was on a stakeout outside a Robert Taylor Homes high-rise when he was shot the night of Aug. 15, 1998.
Within days, 11 witnesses went before a Cook County grand jury and identified Tolliver as the shooter. But they all later recanted, and during both trials, seven testified that Chicago police detectives forced them to lie by threatening them. All seven witnesses were African American, and most were teenagers who lived in Robert Taylor. Prosecutors alleged they were affiliated with or intimidated by gangs. In their own testimony, six police detectives denied making any threats.

Twenty-four percent of the 88 prospective jurors were black, while 42 percent of the final jury was African American. But that didn’t help Tolliver. After deliberating for five and a half hours on May 23, the jury—made up of six whites, five blacks and one Latino—found Tolliver guilty of first-degree murder.

During jury selection, people were asked whether they had read, seen or heard any news coverage about the case. People who said they would not be able to judge the case fairly were excused.

The remaining 52 prospective jurors were questioned about their occupations, marital status, residence and previous courtroom experiences. Six jurors were selected on the first day, and 10, including four alternates, were selected the next. All of the jurors who served in the second Tolliver trial either could not be reached or declined to comment about the case.

Typically, the jury selection process includes finding jurors whom attorneys believe will be receptive to their witnesses, jury experts told the Reporter. And race, they said, sometimes plays a part.

In a busy court system like Cook County’s, “you have to use these readily observable characteristics,” like race, said Daniel Wolfe, a senior trial consultant with TrialLogix, a Chicago-based legal services company. Wolfe advises attorneys. “You have to make judgments based on those characteristics. And whether we like to or not, ... there’s still, in essence, stereotypes. We have to make generalizations about people’s characteristics such as race.”

Still, while attorneys sometimes take race into account, it’s a violation of federal law to reject a juror because of his or her race, according to the 1986 U.S. Supreme Court decision Batson v. Kentucky. And a Tolliver prosecutor, James P. McKay, chief of the Felony Trial Division of the Cook County State’s Attorney’s Office, denied that race played a role in the trial. “Race has nothing to do with the manner in which we pick juries,” he said.

Prosecutors did ask prospective jurors if they had negative feelings about police. And in large cities like Chicago, Wolfe said, blacks, especially those who live in high-crime communities, are more likely to have bad experiences with police.

During jury deliberations in the first trial, Shipp revealed he had been arrested in 1999 on drug charges; the charges were later dropped for lack of evidence. The jury foreman, Thomas P. Audi, complained in a note to Porter that Shipp’s arrest had compromised his ability to fairly judge the case.

Shipp believes his experience with the police gave him a different perspective from the other jurors’.


But McKay said race doesn’t explain how people feel about police officers. “If you want my opinion about people who have bad experiences with the police, most of them are criminals—white, black, Hispanic, female, male—it doesn’t really matter,” said McKay. “It’s criminals.”

Not everyone agrees. Criminal past or not, Chicagoans of every race can have “jaundiced” views of law enforcement, said Wolfe.

And while attorneys might have relied on racial stereotypes at certain points in the jury selection for the second Tolliver trial, those stereotypes were often defied, the Reporter found.

On the first day of jury selection, prosecutors asked all the prospective jurors, “Does anyone here have any negative feelings toward police officers?” None of the 24 in the room raised a hand. Nine of these potential jurors were black.

But on the second day, 10 of 28 raised their hands: Eight were white and two were black, and four lived in the suburbs. Patricia McEvoy, an expert on jury selection and a partner at the Chicago-based firm Zagnoli McEvoy Foley Ltd., said she advises attorneys not to rely on stereotypes.

“It is not the demographics that predict the verdicts,” she said. “I could overlook a really, really bad juror if I just say, ‘All black people are bad for the prosecution and all white people are good for the prosecution.’”

Steinken said he was optimistic after the jury was picked for the second trial. But after the verdict, he doubted the jurors had presumed his client innocent until proven guilty.

“I had hopes that we could get a fair hearing,” he said. “Of course, you never know what people are thinking.”

Cindy R. Barrymore and Eric W. Luchman helped research this article.