By Galina Davidoff
BridgeTower Media Newswires
“There is nothing I can do. It is only one juror,” the judge said.
He sounded sad as he dismissed the defense’s Batson challenge. It seemed that, along with the defense team, he was hoping that this young African-American man whose sunny smile lit up the courtroom would be seated as a juror. But the prosecutor exercised a peremptory strike and, in response to a Batson challenge, muttered something about the feeling that this juror gave her, and that was the end of it.
The memory of this jury selection came back to me this summer when Black Lives Matter protests were sweeping the nation. The reality highlighted by the BLM protests is that African Americans are much more likely to be mistreated by the police. The less dramatic, but important, aspect of racial discrimination in our justice system is that this mistreatment is then used as an excuse to remove African Americans from criminal juries.
It is no secret that prosecutors tend to strike Black jurors, especially young men. Studies show that jurors’ race matters and that the rate of convictions is highest for Black defendants judged by all-white juries.
So citizens who know the most about police abuses are often excluded from cases in which police conduct might be in question. This seems to be a vicious circle: African Americans are mistreated by the police, then removed from criminal juries because of their experiences, and so police conduct does not get the scrutiny it deserves, thus perpetuating discriminatory practices.
Massachusetts, like most other states, does not collect data on jury selections. Recent large-scale studies in Florida, North Carolina, Mississippi and California involved painstaking digging through court records and confirmed that prosecutors strike Black jurors at high rates, reducing diversity on juries.
The Batson challenge that was supposed to reduce racial and other discrimination in jury selection is rarely successful because it deals only with the most blatant manifestations of explicit biases.
The 2020 California research report “Whitewashing the Jury Box” concludes that: “Empirical evidence overwhelmingly shows that implicit biases play a significant role in prosecutors’ peremptory challenges. Strikes based on these biases most often adversely affect Black defendants and Black jurors. Implicit biases are, by definition, deeply held and reflexive. Inasmuch as each of us acts on them without awareness, lawyers most often will not recognize their biases, much less be able to acknowledge them. Judges are no better at identifying them. Batson’s requirement that the objecting party prove intentional discrimination allows these biases to operate unchecked.”
The report recommends that, in the event of a Batson challenge, the burden of proof should always rest with the party exercising the peremptory challenge. It also recommends that all the reasons historically associated with improper discrimination should be presumed invalid, meaning that the prosecutors would not be able to strike jurors because they report a negative experience with law enforcement, believe that police engage in racial profiling, etc.
Perhaps some of these recommendations go too far, but they do deserve careful consideration.
Ironically, since attorney-conducted voir dire was allowed in Massachusetts, it has become easier for prosecutors to prompt answers that justify their peremptory strikes against Black jurors. Questions that elicit memories of negative experiences with the police; unfair traffic stops; friends and family who have been affected by police actions help provide justifications in response to a Batson challenge. However, if jury selection is curtailed, trial attorneys are more likely to resort to stereotypes based on visible demographic characteristics, so this is not a solution.
A review of the studies and discussions with experienced Massachusetts trial attorneys suggest some potential steps we can take:
1. Start tracking Batson challenges, judges’ rulings, and the names of prosecutors involved. Such a record will provide for some accountability and will allow us to see if some offices or individual prosecutors stand out compared to the rest of the state. To devise a solution, we need data.
2. Attorneys defending a Batson challenge should face at least the same degree of scrutiny as jurors suspected of bias. Judges should question them closely to make sure that the person in front of them is not acting out of explicit or implicit bias. There are indications that more judges are doing that, but often they feel that their hands are tied and excuses must be accepted.
3. Judges should allow supplemental juror questionnaires that prospective jurors fill out online. The questionnaires should ask about positive as well as negative experiences with police and about jurors’ attitudes and willingness to be objective, and should allow for nuance and clarification rather than simple “yes” or “no” answers. These questionnaires need not be long; six or seven questions will give a sufficient window into jurors’ potential biases, save time during jury selection, and eliminate the need for prosecutors to resort to stereotypes. It would be valuable if courts could collect this information over the years as the data would be useful for police reform efforts.
4. Have a panel voir dire, which, if well conducted, provides for more open discussion and makes jurors feel more empowered. It may seem counterintuitive, but jurors are typically more comfortable and outspoken when they are in a group, rather than in individual voir dire.
Jury service is a meaningful experience and an important part of our civic duty. The lack of equal access to this experience matters not only to Black defendants and jurors but to all of us.
Martin Luther King Jr. wrote: “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”
We all need Black jurors to hold police accountable.
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Galina Davidoff is a jury consultan. She can be reacheded by email at gdavidoff@davidoffconsulting.com
