Keeping racial bias out of jury selection

By Judge A. Gail Prudenti
BridgeTower Media Newswires
 
LONG ISLAND, NY — Thirty-five years after the U.S. Supreme Court drilled a nail into Jim Crow’s coffin with a landmark decision making it harder for attorneys to racially stack juries, the Georgia case of Ahmaud Arbery is raising a question of whether more needs to be done to cleanse the jury selection process of racial bias.

Arbery a 25-year-old Black man, was hunted down and killed while jogging near his home in coastal Georgia. Three white men are on trial for the alleged murder, and the jury that will determine their guilt or innocence included only one Black person after the defense used “peremptory challenges” — those for which they normally do not need to give a reason for excluding a particular juror — to reject other all the other Black potential jurors (the prosecution used all 12 of its peremptory strikes on white potential jurors).

Keep in mind that in 1875 Congress made it a crime to “exclude or fail to summon a qualified citizen for jury service on the basis of race.” The Supreme Court said in case of Batson v. Kentucky that the purposeful exclusion of “black persons from juries undermine(s) public confidence in the fairness of our system of justice.” And just two years ago, the Supreme Court reaffirmed Batson, declaring that equal justice “requires a criminal trial free of racial discrimination in the jury selection process.”

Then, how could it be that nearly every potential Black juror was excluded from the Arbery matter?

Under Batson, when it appears an attorney is misusing peremptory challenges to racially stack the panel, the court or opposing counsel can put their feet to the fire and require them to come up with a race-neutral explanation. Unfortunately, that’s not hard to do, as Justice Thurgood Marshall, the first Black judge on the Supreme Court, predicted the day Batson was decided in 1986.

Justice Marshall fretted that attorneys could still discriminate, so long as they weren’t blatant about it, and foresaw that trial courts would have a difficult time assessing the attorneys’ motive for excluding Blacks. He anticipated that attorneys would almost always be able to come up with some reason, other than race, to exclude a particular juror. That seems to be exactly what’s going on in Georgia. The judge acknowledged the appearance of “intentional discrimination,” but concluded he was powerless to address it since the defense offered enough of an explanation to satisfy Batson.

Although Batson remains the national standard, some states have gone beyond the minimum requirements of the Supreme Court decision. California and the state of Washington, for instance, modified the rule to forbid peremptory challenges where an objective observer would conclude that a juror’s ethnicity or race resulted in their ouster. Arizona recently became the first state to do away with peremptory challenges altogether, following the lead of Canada, which ended the practice in 2018.

The 35th anniversary of Batson is an opportune time to take another look at that landmark in light of research indicating that all-white juries convict Black people at higher rates. One study, led by Duke University, showed that over a 10-year period in Florida all-white juries convicted Black defendants 16 times more than white defendants; with the addition of even one Black juror, the discrepancy disappears.

Peremptory challenges offer attorneys a limited opportunity to “go with their gut” or their intuition, and that can be a good thing. But they also present an opportunity to stereotype and discriminate. We require our jurors to leave their biases — explicit and implicit—on the courthouse steps, but our system works best when a cross section of the community brings their collective life experiences into the jury room.

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Judge A. Gail Prudenti is the dean of the Maurice A. Deane School of Law at Hofstra University.