• Samantha Findling

Racism in Jury Selection


When we think about the Criminal Justice System, we may think about the roles of criminal law practitioners. Defense attorneys are the gladiators that fight to protect the wrongly accused. Prosecutors are those that fight to represent the victim, the victim’s family, the public’s expectation of safety, and of course the community. But isn’t it possible that sometimes a prosecutor’s perception of a community intentionally excludes the members of our society that are African American and Hispanic? Yes, and it is called racism in jury selection. But can’t opposing counsel just speak up? Yes, but fear of conflict typically comes into play. Perhaps after reading this, you realize it is time to stop ignoring the problem or pretending like race-neutral explanations for excluding jurors do not exist or are acceptable.

Now we may all be familiar with the unforgiveable racist tendencies when it comes to arrests and incarcerations--in 2011, of the 1.3 million people incarcerated 39.2% were African American and 21.5% were Hispanic. But this racism in the criminal justice system stretches farther than those that are allegedly “guilty” of a crime, but to people that the criminal justice players know are innocent. A 2005-2009 study found that prosecutors struck 80% of black jurors from death penalty cases. Prosecutors stretched so far to find a justification to excuse a juror that they have come up with reasons such as arrogance, dressing in tight clothing, living in the city, living alone, watching gospel TV programs, living with a girlfriend, being over-educated, being employed as a barber, being new to the area, working with family members, looking like a drug dealer, “shucking and jiving” while walking, being too quick to answer a question, appearing to lack the sophistication to understand DNA evidence, not understanding legal jargon, or being too sympathetic. But why do prosecutors not want black jurors? Such possible, yet unjustifiable reasons may include the fact that more black people have been targeted by police; have been affected by racial discrimination in arrests, incarceration, and the death penalty; and the possibility that a black juror is less likely to convict a black defendant than a white one. Not only are these rationalizations generalizing an entire race, but they are statistically proven as inaccurate. While attorneys may think that having a homogeneous jury works in their favor, studies show that diversity among groups allows for a wider range of perspectives, more case facts cited, and less factual mistakes made, which leads to a more effective decision-making process.

But this is not a current issue. Even though the 1875 Civil Rights Act made it illegal to use race as an excuse to exclude a juror, things did not change. In 1879, the Supreme Court case of Strauder v. West Virginia condemned the exclusion of African Americans from jury pools. As a little background for those non-practitioner readers out there, jury selection is a two-step process. First, the judge dismisses possible jurors “for cause” if they cannot be objective. Next, after the defense and prosecutors question the remaining jurors, each party gets a certain amount of peremptory strikes to remove jurors they simply do not want. These strikes continue until twelve jurors are left. However, because these peremptory strikes do not require the attorneys to state their reason for dismissal, it is exceedingly easy to eliminate unwanted minority jurors. So in 1986’s Batson v. Kentucky, the Supreme Court ruled that a prosecutor’s peremptory challenges in a criminal case could not be used to exclude jurors based on their race. Hence, the term “Batson challenge.” Lawyers are now allowed to make a Batson challenge, or an objection to peremptory challenges that seem to exclude potential jurors based on their race, ethnicity, sex, etc.

Regardless of changes throughout history, racism in jury selection is still running rampant. One example is Mississippi’s Curtis Flowers, the only person in United States history to have six murder trials for the same crime. Mississippi’s Supreme Court calls it the “worst case of racial discrimination [they] have ever seen.” After the prosecutor used all of his 15 peremptory challenges to exclude African Americans (including two African American women for not supporting the death penalty even though he accepted two white women who also did not support the death penalty), the all-white jury deliberated only a few hours following a week of testimony before reaching a guilty verdict. Another example is the case about Timothy Foster, a black man who received the death penalty by an all-white jury in Georgia for murdering a white woman in 1987. Decades after his conviction, the prosecutors’ notes have become major evidence in his appeal. The prosecutors “highlighted black jurors’ names in green, circled the answer “black” on the questionnaire where jurors had been asked to identify their race, labelled three black jurors ‘B#1,’ ‘B#2,’ and ‘B#3,’ and identified which person to keep if ‘we had to pick a black juror.’” Some additional black jurors were struck for such ludicrous reasons as their cousin was arrested, being a social worker (she was a teacher’s aide), and being too close in age to Foster (the juror was 19, while Foster was in his 30’s).

So while we may all be aware of the ridiculous, disproportionate amount of arrests and incarcerations of minorities, we must remember that there is a process in the middle- the trial. And just as some law enforcement officers have those racist tendencies to believe every black man passing by is dangerous, some prosecutors have those racist tendencies to believe every black juror thinks alike. But generalizations are perhaps one of the most poisonous flaws floating through our minds. Not every person of a particular race is dangerous. Not every person of a particular race favors the same party in a trial. So to you practitioners out there, remember, each individual is exactly that- individual. They are their own person, with different backgrounds, experiences, thoughts, dreams, and ideas. And if we do not speak up when we see these racist actions, who will? We are the people hired to create a fair, objective criminal justice system. We are the people hired to protect the victims and wrongly accused from the people out there that are racist or bias or have preconceived notions. We are the defenders of those that are unfairly struck down by society, so let’s please not be the ones committing the unfair strikes.

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