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When Will Race No Longer Matter in Jury Selection?

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We are coming upon the 25th anniversary of the Supreme Court's opinion in Batson v. Kentucky, which reaffirmed that our Constitution does not permit prosecutors to remove prospective jurors from the jury pool because of their race. The legal question -- when, if ever, can governmental race discrimination in jury selection be tolerated -- was easy. The factual question, however -- when will prosecutors cease to discriminate on the basis of race? -- has proven to be far more difficult to answer. The evidence that district attorneys still exclude non-white jurors because of their race is compelling. Race will continue to permeate jury selections until trial courts are held accountable when they fail to meaningfully enforce the protections the Supreme Court has set forth.

When lawyers select a jury for an upcoming criminal trial, they have two mechanisms to remove prospective jurors from the jury pool: cause challenges and peremptory strikes. Certain jurors can be removed "for cause" because they lack the ability to remain fair and impartial. For example, a person whose sibling works for the district attorney's office may be excludable for cause. Both prosecutors and defense lawyers have an unlimited number of cause-challenges, because no partial jurors should be seated. Additionally, most states provide the two parties with a certain number of peremptory strikes (typically 12 for each party). The lawyers can use these strikes to exclude anyone they wish, for almost any reason. A party's decision to remove a prospective juror, however, cannot be motivated by race.

In Batson v. Kentucky, the Supreme Court established a three-step process to govern claims that a party has used its peremptory challenges to intentionally discriminate on the basis of race. First, the party alleging that the other side has discriminated on the basis of race must establish a prima facie case (evidence that, if uncontested, would be sufficiently incriminating) to support the claim. The burden is not a high one. Second, if the trial court finds a prima facie case has been made, the other party must supply a race-neutral explanation for the strike. Third, assuming the supplied reasons are actually race-neutral, the trial court must then determine whether it finds them to be credible and legitimate. If it does, the strike is allowed and the juror is excluded from the jury pool. But, if the court finds the reasons given for the strike to be illegitimate, implausible, or non-race-neutral, the peremptory strike is prohibited and the juror is allowed to serve.

Although every Supreme Court pronouncement raises some complicated questions at the margins, the Batson framework seems to provide reasonable guidance. Nonetheless, judges have demonstrated that they are either unable or unwilling to enforce it to ferret out racism in their courtrooms. According to a recent report published by the Equal Justice Initiative, "[r]acially biased use of peremptory strikes and illegal racial discrimination in jury selection remains widespread, particularly in serious criminal cases and capital cases." When the stakes are highest, the State appears most willing to play fast-and-loose with prospective jurors' equal protection rights. Trial courts, appellate courts, and even state supreme courts have shirked their duty to take seriously the recurring claims of race discrimination. Although the United States Supreme Court reassured litigants that "implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination," that statement appears now to be aspirational, not descriptive. Some recent eye-opening examples reflect the problem's magnitude.

In the recent 2009 second-degree murder trial of rap artist Corey Miller, the state singled out African-American jurors to find out if they ever listened to rap music. Then, when making the peremptory strikes that triggered the defense lawyer's Batson objection, the prosecutor provided as a "race-neutral" explanation that the stricken juror was not removed because of her race, but because of her enjoyment of "the rap music." The trial court failed to identify the pretext. In 2004 -- in what was one of many trials in the saga of the State's prosecution against Curtis Flowers -- the trial court found no discrimination where the prosecutors used all fifteen of its peremptory strikes against African-Americans, and even held that the prosecutors could rely on things that other jurors said to justify the strike of an African-American. The trial court's clearly erroneous Batson rulings led to an enormous drain on resources, as the Mississippi Supreme Court rightly ordered a new trial three years later. These are only two examples of judicial intransigence out of the hundreds that have arisen in trial courts across the country in the past few years, but they demonstrate how the judiciary can render a Supreme Court opinion hollow.

Appellate courts, too, have been reluctant to enforce Batson. In Dressner v. Louisiana, a case with a petition for certiorari currently pending before the United States Supreme Court, the Louisiana Supreme Court botched its Batson analysis. Although the defendant expended significant time and space briefing the discrimination issue, the court buried the issue in its "unpublished appendix." Moreover, the court approved of all the State's peremptory strikes, even though: seven of nine were used to exclude African-Americans; the prosecutor mischaracterized jurors' answers; the United States Supreme Court recently found that the same district attorney's office had racially discriminated in Allen Snyder's jury selection; and the two trial prosecutors had been publicly reprimanded because they wore hangman and noose neckties to hearings in a young African-American man's death penalty prosecution.

Every case presents unique facts and considerations. However, the dearth of recent cases in which courts have actually found racial discrimination in jury selection suggests not that such discrimination does not occur, but that the judiciary has failed to identify and remedy it. Statistics collected in jurisdictions across the South suggest that prosecutors still disproportionately strike prospective African-American jurors. The statistics are so powerful, in fact, that they cannot be fully explained on grounds that exclude race.

Discrimination in jury selection touches on two recurring themes in the continued struggle for equal justice: (1) the exclusion of African-Americans from integral parts of our democracy; and (2) judicial indifference to the Equal Protection Clause's demands. Today's battle may not be as public as the hard-fought struggles to guarantee African-Americans access to the ballot box and integrated classrooms, but it is just as important. If the courts continue to allow state actors to remove 70%, 80%, or even 90% of qualified minority jurors without scrutiny, the system's legitimacy shall be called into question, and our nation's commitment to equal protection shall be undermined.

The full version of this article originally appeared on First Impressions, the website of the Michigan Law Review.

Disclosure: Bidish Sarma is representing Mr. Dressner on his appeals.