lamar.ct
Lamar County Court House, Alabama, 2008 (Credit Equal Justice Initiative)

It’s 2015, and those of you who are not criminal trial attorneys might be shocked and offended to learn just how frequently and intentionally prosecutors in some parts of the country exclude black people from juries, trying to obtain all white juries. Of course, that’s supposed to be unconstitutional, but the system to prevent race discrimination on juries is totally flawed and useless. Let me tell you how it works.

In a trial, both sides get to use what are called “peremptory challenges” or “peremptory strikes” to eliminate a certain number of people who the lawyers just don’t want included on the jury. Judges remove the jurors who are found to be obviously biased or unfit, but the peremptory challenges are something different – they are the subjective strikes, where each side can just get rid of some of the potential jurors they don’t like. It is blatantly unconstitutional to use these subjective challenges in order to discriminate against black people, but the protections against such discrimination are pretty feeble.

A Supreme Court case called Batson v. Kentucky set up the supposed protections against race discrimination on juries. When a defendant believes that the prosecutor is using challenges to eliminate jurors on the basis of race, the defense must state a sufficient claim of discrimination to the court (for example, pointing out that the prosecution used the bulk of its challenges to get rid of all of the black jurors). If the defense makes a sufficient allegation of discrimination, then the court requires the prosecution to offer a “race-neutral” explanation for why it struck each black juror. The prosecution’s explanation does not need to be persuasive or plausible, just not openly race based. Acceptable explanations include claims like the potential juror is too old, too young, too uneducated, unemployed, employed as a [fill in the blank], or even racially coded claims like lives in a certain neighborhood or has a certain look or manner of speaking. Then, the burden falls on the defendant to prove to the court that the prosecution’s stated reason for ousting the juror was a pretext, hiding a racially discriminatory reason. As you can imagine, this is a very hard burden to meet because it is hard to prove what was going on in someone else’s head when they made a subjective decision.

The result is that race discrimination on juries flourishes. A recent study of Lousiana’s Caddo Parish (New Orleans) found that during the last decade, prosecutors were three times as likely to use peremptory challenges to strike black potential jurors as others. That pattern is common, especially throughout many parts of the South. In fact, there have even been documented training sessions of experienced prosecutors teaching newer prosecutors how to formulate race-neutral explanations in order to successfully eliminate blacks from the jury pool.

This fall, the Supreme Court will hear a death penalty case out of Georgia involving a black defendant charged with killing an elderly white woman. The prosecution struck all four of the black jurors to get an all white jury and then used racially charged arguments in arguing for the death penalty. When the defense challenged the prosecution’s elimination of all the black jurors, the prosecutor offered up his list of race-neutral explanations for his strikes (for instance, a 34 year old black juror was supposedly struck because she was too close in age to the defendant, who was 19; another black juror was supposedly struck because she looked at the ground too much and seemed nervous when questioned by the judge). Decades later, however, as the case worked its way up the appeal system, the prosecutor was required to release his jury selection notes, and it turns out his notes explicitly detailed his actual thinking about how to use his strikes to get rid of the black jurors.  He even notes which of the black jurors would be best if he ran out of challenges and was stuck having to let one of them on the jury. Nevertheless, the lower courts still all found insufficient evidence of race discrimination.

Although it is unlikely, one can only hope that the Supreme Court will use this case to change the rules so that it is not so hard for defendants to prevent blatant race discrimination on their juries. Or, perhaps given our country’s long history of race discrimination on juries, prosecutors should not be allowed to exercise peremptory challenges at all.   The current system is unfair to defendants and is insulting and profoundly unfair to all of the black jurors who are not allowed to serve for thinly veiled, amorphous reasons that really come down to the color of their skin.

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