[Information for this newsletter comes from “Illegal Racial Discrimination in Jury Service: A Continuing Legacy” by the Equal Justice Initiative.]

After reading about the jury selection in the trial of the three White men accused of killing Ahmaud Arbery in Georgia last year, I was inspired to learn more about the issue of jury selection. Arbery, an unarmed Black man, was killed near Brunswick, a 16,200-population city that is 55% Black. Yet the jury in the trial of the three White men consists of one Black individual and 11 White individuals. Nearly 135 years after Congress enacted the 1875 Civil Rights Act to eliminate racially discriminatory jury selection, the practice continues, especially in serious criminal and capital cases.

JURY SELECTION PROCESS

Jury selection begins with a jury panel or “venire,” which usually includes between 40 and 150 potential jurors. Trial lawyers question the potential jurors (a process called “voir dire”) to determine possible bias and may then challenge “for cause” any juror they believe will be unable to be fair and impartial. After removals for cause, the lawyers exercise “peremptory strikes” to remove additional jurors for any reason. The actual jury is chosen from the group that remains after for cause and peremptory strikes.

“Peremptory strikes” are the words used to describe the process in which the defense and prosecution can exclude any juror. This peremptory strike issue has been used to exclude people of color in a disproportionate way.

HISTORY OF RACIAL DISCRIMINATION IN JURY SELECTION

It is no secret that the incarceration system in our country disproportionately affects Black men, and many believe that White juror bias is a significant part of the problem. Racially disparate treatment has permeated the United States criminal justice system throughout history. During the Jim Crow era, Blacks were legally barred from voter rolls in several southern states and were therefore barred from serving on juries. Furthermore, the police, prosecution, defense attorneys, judges and jurors were almost always White. All-White juries and blatant racism led to the wrongful convictions of countless innocent Black people.

The right to trial by jury is enshrined in our foundational legal documents from the Declaration of Independence to the bill of Rights to the Sixth Amendment to the U.S. Constitution and in every state constitution. In the Civil Rights Act of 1875, Congress included a provision outlawing race-based discrimination in jury service. In 1880 the U. S. Supreme Court, in Strauder v. West Virginia, overturned a state statute that restricted jury service to Whites. The strongly-worded decision condemned the statute as a violation of the equal protection guaranteed to Black citizens by the Fourteenth Amendment to the Constitution.

But a backlash against Black enfranchisement and political participation was already underway in the South and the Jim Crow era of White supremacism had started. The jury service provision of the Civil Rights Act of 1875 was rarely enforced and Strauder was easily circumvented. Local courts asserted that the exclusion of Blacks from jury service was based not on discrimination but on their inability to find any Black Americans qualified—using intelligence, experience or good moral character as indicators. During the 1920’s and 1930’s, Southern White commentators defended trials of Black defendants by all-White juries on the ground that “at least they were better than lynching.” In 1935, a jury commissioner in the case of the Scottsboro Boys [see my newsletter of December 6, 2020] testified that he did “not know of any negro . . . who is generally reputed to be honest and intelligent and who is esteemed in the community for his integrity, good character and sound judgment.”

Minority inclusion on jury lists in the 1960’s and 1970’s was immediately counteracted by discrimination in the use of peremptory challenges. In 1965, the Supreme Court addressed this issue for the first time in Swain v. Alabama. Robert Swain, a Black man, was sentenced to death in 1962 by an all-White jury for the rape of a White woman. Some Blacks were included on jury panels in Talladega County but were removed by peremptory strikes by the prosecutor. Blacks had not served on a trial jury since 1950.

The Supreme Court conceded that it was illegal to use peremptory strikes to intentionally exclude Blacks from jury service because of their race. But the Court found no constitutional violation in Mr. Swain’s case and no proof that the prosecutor intentionally discriminated against Black potential jurors. The Court set the bar so high for proving discriminatory intent that no litigant won a Swain claim for 20 years. As a result, Black defendants have continued to be convicted and executed by all-White juries.

WRONGFUL CONVICTIONS

The prejudice of White juries doesn’t just affect the outcome of the trial, but also the degree of conviction. A statistical study with more than 200 controls in place was conducted by David Baldus in 1990 and found that Black defendants in Georgia were more likely to be sentenced to death than White defendants, particularly if the victim of the incident was White. This means not only are Black men and women being convicted at higher rates, but upon conviction they are facing steeper punishments.

In addition, a study of more than 700 non-capital felony cases by Duke University researchers between 2000 and 2010 found that Black defendants were more likely to be convicted than White defendants, making a strong case for the existence of White juror bias.

Blacks are overrepresented at every level of the criminal justice system but nowhere more so than in the percentage of known wrongful convictions. As of 2016, Blacks, who comprise less than 13% of the population of the U.S., account for 47% of the exonerations listed in the National Registry of Exonerations. They make up 67% of the exonerations proven by DNA evidence.

Which means that even in the realm of injustice, Blacks and Whites are still not equal.

A NEW LEGAL STANDARD

The Supreme Court reconsidered the question of racial bias in jury selection in the 1986 case of Batson v. Kentucky and overruled Swain. The Court ruled that a prosecutor cannot use peremptory strikes to exclude a potential juror because of his or her race. Where the circumstances at trial suggest an inference of discrimination in the use of peremptory strikes, the prosecutor must explain why he or she removed Black potential jurors. And if the prosecutor fails to give a legitimate, non-racial reason for each strike, the court can assume that the prosecutor acted on the basis of race and put the struck jurors back on the jury venire.

But since Batson did not apply retroactively, death row prisoners and capital defendants whose appeals were completed before 1986 could not benefit from the new rule, even if they were tried by all-White juries.

THE PROBLEM CONTINUES

Even today, Black Americans continue to be denied the right to sit on juries because of their race. In Batson v. Kentucky, the Supreme Court outlined a process for a defendant to establish that the prosecutor removed jurors on the basis of their race. To rebut the inference of discrimination, the prosecutor must offer nonracial or “race-neutral” explanations for its challenged strikes. But as Justice Thurgood Marshall, the first of only two Black Americans appointed to the Supreme Court wrote, “Any prosecutor can easily assert facially neutral reasons for striking a potential juror and trial courts are ill equipped to second-guess those reasons.”

In Alabama, racially-tainted jury selection required reversal of over 80 trials, nearly 98% of which were criminal cases. In Florida, 33 criminal convictions have been invalidated because the prosecutor struck jurors based on race. The highest state courts in Mississippi and Arkansas, with ten reversals each, have openly acknowledged that racial discrimination in jury selection has remained widespread since Batson. Louisiana has had 12 criminal verdicts reversed because prosecutors violated Batson, including a recent decision from the U.S. Supreme Court.

PROSECUTOR BIASES

Many prosecutors have failed to take seriously the requirement that every citizen has an equal right to sit on a jury.

In a number of jurisdictions across the country, district attorney’s offices have trained prosecutors how to mask their efforts to exclude racial minorities from jury service. For example, Philadelphia assistant district attorney Jack McMahon trained prosecutors on how to question Blacks during voir dire to later provide race-neutral reasons for their strikes. In Dallas County, Texas prosecutors systematically excluded Blacks from jury service in criminal cases based on policy codified in a training manual. For the district attorney’s office in Tuscaloosa County, Alabama, tactics to exclude Black potential jurors was “standard operating procedure” and led to Blacks being underrepresented in 70% of the country’s criminal trials.

Many of the reasons given by prosecutors for striking Black potential jurors are a guise for race-based exclusion of potential jurors, particularly in states in the South. Examples of so-called “race neutral” explanations have referred to the potential juror as:

• a “single Black man with no children”
• has a son in an interracial marriage
• “is too stupid to live much less be on a jury”
• lives in a “high crime area”
• had a child out of wedlock
• is affiliated with a historically Black university
• has a “lack of education”
• is illiterate (based on the statement that he had not read about the case in the newspaper)
• filed a civil suit alleging racial discrimination on his job
• “shucked and jived” as he walked
• “looks like a drug dealer”
• wore a large White hat and sunglasses
• “looked hostile”
• “not very bright”
• “inattentive” and dyed her hair
• “seemed odd”
• was quiet during voir dire
• Blacks have “low intelligence”

Congdon v State dealt with a prosecutor in a murder case who struck all four Blacks in the venire because they lived in Ringgold, Georgia. The prosecutor based his strikes on the advice of the Ringgold sheriff, who testified he had a troubled relationship with some members of the town’s Black community and was uncomfortable with any of his town’s Black residents serving on the jury. In the Louisiana case of State v. Lewis, the appellate court reversed a conviction for cocaine distribution after the prosecutor acknowledge he struck a Black juror in order to seat a White juror.

At a federal court hearing to review a capital murder conviction, a Birmingham prosecutor admitted his office followed a policy of striking Blacks because of their race.

INCONSISTENT REVIEW OF CLAIMS BY APPELLATE COURTS

Enforcement of anti-discrimination law is difficult. Appellate judges are often reluctant to find racial bias when claims are presented. And in a Tennessee case, when the defendant failed to raise a Batson objection at trial, the individual was denied the right to use the issue on appeal.

When appellate courts find that the state has illegally excluded people of color from jury service, prosecutors face few, if any consequence for their malfeasance. Prosecutors who engage in illegal racial discrimination rarely receive public scrutiny, which leaves the general public unaware that their elected district attorney’s office has intentionally excluded Black Americans from jury service. Despite criticism of the Montgomery County, Alabama district attorney by the Alabama Supreme Court, and the court’s reversal of 13 of her cases for Batson violations, she remains in office.

Continued tenure by prosecutors who have demonstrated racial bias reveals an indifference to racial discrimination in jury selection that allows it to continue. Without enforcement of Batson by the courts, citizens of color are powerless to combat their deliberate exclusion from the justice system.

DEFENSE ATTORNEY FAILURES

Often defense attorneys fail to object to persecutors’ racially biased strikes, making it harder for reviewing courts to review prosecutors’ behavior. In too many cases, the defense lawyer does not object to racially biased jury selection or fails to adequately challenge the discriminatory use of peremptory strikes.

CONCLUSION

The underrepresentation and exclusion of people of color from juries has seriously undermined the criminal justice system. In the next two weeks I will continue to focus on this issue. Stay tuned!