White Jury Problems

Our criminal justice system disproportionately targets African-Americans at every stage of the process. It’s just a fact. Black people are stopped and arrested more often than whites. They also face more serious charges and longer sentences for the same crimes. A major contributing factor to this unfair treatment is jury selection and on Monday the Supreme Court will weigh in on that process.

You see, prosecutors are prone to strike black jurors – especially when the defendant happens to be black and almost automatically when the victim is white. For an attorney prosecuting a case this is the smart move. It is his or her job to get convictions and all-white juries are more likely to hand them out. This is unquestionably unconstitutional but the problem is that it’s hard to prove that any one prosecutor strikes black jurors because of race.

Foster v. Chatman will be presented to the Supreme Court on Monday. The Court will be tasked with decided whether Timothy Foster deserves a new trial due to the blatant effort of the prosecuting attorney to strike black jurors. However, the real question will be whether the Court takes the opportunity to render an opinion on the bigger issue at play here and that is how easy it is for prosecutors to put an all-white jury in the box.

Most people know that a criminal case is tried before a 12-person jury but not everyone knows how the jurors are picked. Before the trial starts, the judge and the lawyers trying the case trim a large pool of potential jurors down to twelve. Jurors from the pool are cut in two ways. The judge will remove potential jurors who have an obvious stake in the outcome of the case – like they are connected to the defendant or that already have preconceptions about the case. Then the prosecution and defense each get to strike a certain number for any reason at all. Strategy is most certainly involved as the attorneys will use their strikes to eliminate jurors that they do not believe will be sympathetic to their case. These are “peremptory strikes.”

These strikes have been used for a long time as a tool to exclude black citizens from juries. In 1986, the Supreme Court ruled that prosecutors could not use these strikes to remove jurors based on their race because doing so violates the Fourteenth Amendment. Since then, when a defendant alleges that the motive behind a peremptory strike was racial, the prosecutor must convince the judge that the juror was struck for race-neutral reasons. In reality, all strikes are upheld unless they are so egregious that the judge cannot validate them in good faith.

Monday’s case is one of those egregious cases. Timothy Foster is a black man who was accused of capital murder. The prosecutor struck all four prospective black jurors. Nothing overly egregious there. Like I said, this happens all the time. However, in this case the prosecutors left a damning paper trail that was discovered by the defense.

The prosecutor’s notes on jury selections singled out the black jurors solely based on their race. There was a “B” written next to each black person’s name; their names were highlighted; their race was circled on the written questionnaire; they were referred to as “B#1,” “B#2,” etc.; they were listed as the four jurors to definitely cut; and one was identified as the most acceptable “if it comes down to having to pick one of the black jurors.” I don’t know how there could be a more obvious example of racially motivated peremptory strikes. If the Court doesn’t find purposeful discrimination on the facts of this case, then the 1986 decision that banned strikes based on race is meaningless.

Racial discrimination in jury selections has been going on since the 19th century when African-Americans were granted citizenship and, therefore, the right to vote and serve on juries. Southern states actually passed laws that allowed only white people to serve as jurors. Those laws were struck down by the Supreme Court in 1880 but do you think those states would let something like that interfere with their racism? Heck no! They got creative. They tied jury service to voter rolls, where black citizens were kept out through poll taxes and literacy tests. They gave jury selection officials unlimited discretion in only selecting white jurors. It was 50 years before the Supreme Court established that black people could not be excluded from the jury pool. In 1965, the Court confirmed that prosecutors couldn’t use peremptory strikes to exclude black jurors “in case after case.” This basically meant you could strike jurors because of their race as long as you didn’t make a habit out of it. Then in 1986, the Court decided Baston v. Kentucky which held that striking any jurors based on race violated the Fourteenth Amendment even if the defendant couldn’t show that the prosecutor had a pattern of excluding such jurors.

Sadly, not much has changed since Baston because states and prosecutors keep finding ways around it. Studies show that black people are still cut from juries in capital trials at twice the rate of white people. So why does this continue to happen? A lot of the blame can be put on the judges. Trial judges accept almost any explanation the prosecution offers when defendants challenge peremptory strikes of black jurors. Granting the challenge means that the judge is essentially ruling the prosecution discriminated and lied. That could be a little awkward so the path of least resistance is to look the other way.

Because prosecutors know this, justifying race-based strikes is part of the strategy. In Foster the justifications included: asking to get off the jury; not asking to get off the jury; working for Head Start, because it “deals with low income, underprivileged children”; being a social worker. They struck a 34-year old black juror for being too close in age to the 19-year-old defendant although eight white jurors under 35 were allowed to remain. The sad thing is the prosecution’s strategy probably would have worked had the defense not discovered their juror notes.

So why don’t we just get rid of peremptory strikes, right? Problem solved. Not so fast. Defense lawyers rely on these strikes too as a form of protection in case the judge fails to remove jurors who might be biased against the defendant. Plus, most states give more strikes to the defense than the prosecution. The strikes are so ingrained in our trial procedure that complete elimination would be a hard sell.

However, Supreme Court justices have raised the possibility of complete elimination over the years, most recently, with Justice Stephen Breyer announcing in 2005 that he believed it necessary to reconsider the peremptory challenge as a whole. Our pals across the pond in England abolished peremptory strikes in 1988.

Foster isn’t asking the Court to get rid of peremptory strikes (he just wants a new trial) so it probably won’t be considered but it may not be long before a defendant asks the Court to specifically tackle the issue. However, Foster v. Chapman does afford the Court a chance to clarify the responsibilities of trial judges and to instruct them how to actually handle prosecutors when peremptory strikes are used on black jurors. On Monday, we should get an idea as to whether the Court will continue to passively endorse all-white jury trials or if we are closer to the day that peremptory strikes will be permanently eliminated. In the interest of justice, I’m hoping for the latter.

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A lucky man. Also a lawyer. Classic oxymoron.

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