By Matt Johnson
Associate Editor, Vol. 21
The right to a trial by a jury of one’s peers is a right afforded to all criminal defendants facing a sentence of six months or more. Yet in the aftermath of an unpopular decision, the composition of a jury is often viewed as a possible source of prejudice. However, any potential prejudice would not be particular to the jury, as it is merely a microcosm of that region’s population as a whole.
But is that true?
The jury selection process is decided in large part by the ability of either side to use “peremptory challenges” to dismiss potential jurors (while each state allows a different number, prosecutors in Georgia have 10 such challenges and defense attorneys have 20). One major concern is that one of the parties may strike a potential juror for discriminatory reasons, particularly on the basis of race. This means that a jury, rather than reflecting the racial make-up of the region’s population, may be narrowed to an unrepresentative subset. More alarming is the possibility that a jury might be composed entirely of members of a different race than the defendant.
The 1986 Supreme Court case Batson v. Kentucky addressed this very issue. In Batson, the Court held that using peremptory challenges to strike jurors on the basis of race was unconstitutional.
Unfortunately, Batson has proven to be almost worthless in practice. The case merely requires a prosecutor to provide some race-neutral reason for striking potential jurors. As Jay Michaelson points out, the provided reason could be as mundane as the juror’s age or general demeanor. This is a common practice, one even codified in a list called “Articulating Juror Negatives.” Adam Liptak of The New York Times provides some of the reasons prosecutors have offered for excluding Blacks from juries:
“They were young or old, single or divorced, religious or not, failed to make eye contact, lived in a poor part of town, had served in the military, had a hyphenated last name, displayed bad posture, were sullen, disrespectful or talkative, had long hair, wore a beard.”
Simply put, stupid reasons are okay; ones offered in bad faith are not.
The Supreme Court now has an opportunity to reevaluate the (in)effectiveness of Batson, as it will hear Foster v. Chatman later this year. Timothy Tyrone Foster, who is developmentally disabled and has spent nearly 30 years on death row, is appealing his case in which prosecutors excluded every Black prospective juror. His situation is not unique; in Louisiana’s Caddo Parish, a study found that prosecutors used peremptory challenges three times more often to strike Black potential jurors than others during the last decade. According to Liptak, These findings are consistent with patterns researchers found earlier in Alabama, Louisiana and North Carolina, where prosecutors struck Black jurors at double or triple the rates of others.
In Foster’s case, the prejudice was brought to light during the appeals process, when the prosecutor’s files became public. The notes show that Black prospective jurors were annotated as B#1, B#2, et cetera. Weighing the different options, the prosecutor noted that one had “the most potential to choose from out of the four remaining blacks.” The reasons for the peremptory challenges of these jurors the prosecutor gave, such as a juror’s age or profession, were often completely erroneous.
Despite Foster’s legal team uncovering these alarming facts, the Georgia Supreme Court rejected the appeal of his conviction. In the court’s view, prosecutors had not “demonstrated purposeful discrimination” in striking black jurors. The U.S. Supreme Court’s decision to hear the case is probably a good sign for Foster, but there are reasons that similar challenges have failed in the past.
Not only is it nearly impossible to disprove a prosecutor’s reasoning behind a peremptory challenge, but the current system actually creates a disincentive for a finding of wrongdoing. Michaelson notes that many local judges would likely be voted out of office if they find Batson violations. Judges work with district attorneys all the time, and are therefore unlikely to support a challenge that says the prosecutor is a liar and a racist.
This brings us back to the original purpose of juries: to be tried by an audience of one’s peers. The ability to manipulate a jury on the basis of race undermines the integrity of the judicial system. For Black defendants in particular, there is a distinct possibility that the jury box will house a disproportionate number of whites. In Foster’s case, the prosecutor told the all-white jury in his closing arguments to “give Foster the death penalty to deter people in the projects,” where the population was 96% Black. Similarly, although Caddo Parish is 48 percent Black, its typical 12-member criminal jury, deciding the fate of defendants (who were 83 percent Black), had three or less Blacks on it.
It is possible that the Supreme Court will rule narrowly on Foster’s case. In other words, the Court may decide that there is a clear inference of racial discrimination. This was, after all, an instance when the prosecutor’s notes were still available and included blatantly racist observations.
But, as Michaelson suggests, the court could opt for a more widespread ruling, and change the evidentiary standard for finding racial discrimination. The current standard requires that the prosecutor have a “mind to discriminate,” while one could imagine a standard that looks more like disparate impact, such as the reasoning in Texas v. Inclusive Communities Project, the Fair Housing Act case decided earlier this year. Under such a standard, certain peremptory challenges could be considered discriminatory if they have a disproportionate “adverse impact” on persons in a protected class.
While we wait to see what the Supreme Court decides, Foster continues to wait on death row for the right to a new trial and, of course, a new jury.
Main Sources and Resources:
Batson v. Kentucky, 476 U.S. 79 (1986)
How Prosecutors Get Away With Cutting Black Jurors (The Daily Beast)
Exclusion of Blacks From Juries Raises Renewed Scrutiny (NY Times)
Georgia Justice (Slate)
Caddo Parish Report
Foster v. The State, 258 Ga. 736 (1998)
Caddo Parish Census Data
Supreme Court: Institutional Racism Is Real (The Daily Beast)