Even when a jury pool is selected from the community by a reasonably random method, prospective jurors are questioned in a process known as voir dire, during which both the prosecution and the defense can object to jurors. A potential juror can be eliminated either by a challenge for cause, such as being acquainted with the defendant, or by a limited number of peremptory challenges, in which the attorney does not have to specify a reason. The number of peremptory challenges permitted varies among the states.
Historically, peremptory challenges have been used by prosecutors to create all-white juries in cases involving black defendants. However, in Batson v. Kentucky (1986), the Supreme Court ruled that using peremptory challenges to exclude jurors based solely on their race violates the equal protection clause of the Fourteenth Amendment. The Batson rule states that whenever the prosecution or defense excludes a minority group member, it must specify a race-neutral reason. However, there is widespread consensus that this procedure has failed to eliminate racial discrimination, since judges accept a wide variety of “race-neutral” excuses for disqualifying black members of the jury pool.
Here are excerpts from a 1996 (post-Batson) training video instructing young prosecutors on how to select a jury. This blatant endorsement of prosecutorial misconduct was produced by former Philadelphia District Attorney Ron Castille, who went on to become Chief Justice of the Pennsylvania Supreme Court.
Racial discrimination in jury selection is arguably more important today than in 1986, given the large differences in attitudes between whites and African-Americans toward the police and the criminal justice system. For example, in a July 2015 New York Times poll, 77% of black respondents, but only 44% of whites, thought that the criminal justice is biased against blacks. Clearly, black and white jurors approach criminal cases from very different perspectives. Laboratory research suggests that racially diverse juries exchange a wider range of information and make fewer errors than all-white juries.
Yesterday, the Supremes heard oral arguments in Foster v. Chatman, a blatant case of racial discrimination in jury selection. Timothy Foster, a black man, was convicted and sentenced to death for killing a white woman in 1987 by an all-white jury in Rome, Georgia. All four black potential jurors were disqualified by the prosecution using peremptory challenges. In notes that recently surfaced, it was found that prosecutors circled the names of the prospective black jurors in green and labeled them B#1, B#2, etc. They were ranked in order of acceptability “in case it comes down to having to pick one of the black jurors.” It did not come to that. The judge accepted a variety of “race-neutral” reasons, including rejecting one 34-year-old black woman for being too close in age to the defendant, who was 19, even though they did not challenge eight white potential jurors aged 35 or younger (including one man who was 21). In the trial itself, the prosecutor urged the jury to sentence Foster to death in order to send a message to “deter other people out there in the projects.”
There is abundant evidence from field studies conducted after the Batson decision showing that racial discrimination in jury selection still exists. For example, Grosso and O’Brien examined 173 capital cases in North Carolina between 1987 and 2010, involving over 7400 potential jurors. Prosecutors struck 52.6% of potential black jurors and 25.7% of potential white jurors. In cases with a black defendant, the strike rates were 60% for blacks and 21.3% for whites. A black prospective juror was 2.48 times more likely to be excluded than a white even after statistically controlling for the most common race-neutral reasons given for challenging a potential juror.
A laboratory experiment by Norton and Sommers (2007) illustrates the flexibility with which people can rationalize racially discriminatory decisions. Participants (college students, law students and attorneys) were asked to assume the role of prosecutor in a criminal case with a black defendant. They were told they had one peremptory challenge left, and to choose between two prospective jurors—a journalist who had investigated police misconduct and an advertising executive who expressed skepticism about statistical evidence to be used by the prosecution. For half the participants, the journalist was said to be African-American and the advertiser white, while for the remainder of the participants the races were reversed. The black juror candidate was challenged 63% of the time. When participants were asked why they struck the person they did, only 7% mentioned race, while 96% mentioned either the journalist’s investigation of police misconduct or the ad man’s skepticism about statistics. More importantly, both justifications were more likely to be cited as critical when they were associated with the black prospective juror than with the white prospective juror.
Today’s news reports suggest that even the more conservative Supremes were sympathetic the the defense’s arguments in Foster v. Chatman. However, the Court could decide the case very narrowly by simply overturning Foster’s conviction. It would be more interesting if their decision were to establish some new principle to minimize the abuse of peremptory challenges. It’s unlikely that these nine justices will establish a minority “quota” against which the fairness of juries can be assessed. However, an argument could be made for severely limiting peremptory challenges, or dispensing with them altogether, on the grounds that they merely provide opportunities for attorneys to express their conscious or implicit biases. If they have a legitimate reason for challenging a juror, let them present it to the judge for evaluation. Otherwise, let the juror be seated.
A beneficial side effect of eliminating peremptory challenges would be to put out of business those expensive “scientific” jury consultants who help lawyers choose a “friendly” jury. To the extent that they are actually helpful, this is yet another advantage possessed by wealthy defendants.
If the Supremes fail to eliminate peremptory challenges, then this case has implications for the fairness of the death penalty.
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