The Past Is Not So Past, After All

Shaila Dewan at NYT:

In late April in a courthouse in Madison County, Ala., a prosecutor was asked to explain why he had struck 11 of 14 black potential jurors in a capital murder case.

The district attorney, Robert Broussard, said one had seemed “arrogant” and “pretty vocal.” In another woman, he said he “detected hostility.”

Mr. Broussard also questioned the “sophistication” of a former Army sergeant, a forklift operator with three years of college, a cafeteria manager, an assembly-line worker and a retired Department of Defense program analyst.

The analyst, he said, “did not appear to be sophisticated to us in her questionnaire, in that she spelled Wal-Mart, as one of her previous employers, as Wal-marts.”

Arguments like these were used for years to keep blacks off juries in the segregationist South, systematically denying justice to black defendants and victims. But today, the practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked.

In the Madison County case, the defendant, Jason M. Sharp, a white man, was sentenced to death after a trial by a jury of 11 whites and one black. The April hearing was the result of a challenge by defense lawyers who argued that jury selection was tainted by racial discrimination — a claim that is difficult to prove because prosecutors can claim any race-neutral reason, no matter how implausible, for dismissing a juror.

While jury makeup varies widely by jurisdiction, the organization, which studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — found areas in all of them where significant problems persist. In Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and there are counties where more than 75 percent of black jury pool members have been struck in death penalty cases.

An analysis of Jefferson Parish, La., by the Louisiana Capital Assistance Center found that from 1999 to 2007, blacks were struck from juries at more than three times the rate of whites.

Ashby Jones at Law Blog at WSJ:

In 1986, the U.S. Supreme Court ruled that if a pattern of discrimination emerged in a lawyer’s use of peremptory challenges during jury selection, a judge could require the lawyer to give a race-neutral reason for why the juror was dismissed.

But is that ruling, Batson v. Kentucky, and those that followed it, doing enough to keep racism out of the jury-selection process?

That’s the fundamental question asked in this NYT article out Wednesday, which examines the prevalence — and absence — of blacks on juries in the South.

According to the story:

[T]he practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked.

Part of the problem, reports the NYT, concerns a opinion following Batson in which the Supreme Court said that the nonracial reasons for peremptory strikes don’t have to be “persuasive, or even plausible.” Rather, it is up to the judge to decide if there was deliberate discrimination.

That is a high bar, defense lawyers say. In Tennessee and North Carolina, for instance, there has never been a successful reversal based on Batson.

“Anybody with any sense at all can think up any race-neutral reason and get away with it,” said Stephen B. Bright, a capital defense lawyer in Atlanta.

bmaz at Emptywheel


It’s incredibly depressing to know that in large swaths of the country, the basic mechanisms for enforcing Jim Crow — voter disenfranchisement, targeted policing of majority-black areas, and jury stacking — are alive and well. For a huge number of African-Americans, the criminal justice system exists mainly as a blunt object of social control. Moreover, because convicts are thoroughly stigmatized in the eyes of the public, it is frustratingly hard to do anything about it.

Mark Kleiman:

Hard to say which is the more distressing aspect of the latest study on Southern prosecutors’ abuse of the peremptory-challenge process to create all-white, or nearly all-white, juries: the fact that official racial bias is still a fact of Confederate life, or the fact that prosecutors – officers of the court, sworn to uphold the Constitution – routinely cheat, lie about it, and get away not just without having convictions thrown out but without any sort of professional stigma. In some offices, junior prosecutors get explicit training in how to successfully violate the Constitution and deceive the court (which seems, too often, more than willing to be deceived.

In theory, prosecutors pursue justice within the constraints of the law; too often, in practice, they’re just looking to carve notches in their briefcases.

Matthew Yglesias:

One way of dealing with these results would be to more strictly define what a “race-neutral” reason for rejecting a juror is, especially in those jurisdictions or with those prosecutors where the juries really are especially skewed in favor of white jurors. But the system we have, where prosecutors and defense attorneys have a huge role to play in jury selection isn’t necessarily the right one, or the one that other countries use. As Kevin Drum suggests, we could just pick 12 people at random and let judges ensure that no one has a really blatant reason for not serving.

This is just another weird part of our justice system — like electing judges, widespread use of exclusionary rules, the existence of for profit bails bondsmen, our huge number of prison inmates or one-sided expert witnesses — that we take as totally normal, but are actually pretty weird in the international context. Alas, I hardly see legal reformers using “but they do it differently over there” as a successful rallying cry.

Kevin Drum:

Most racially-inspired problems are hard to solve, but in this case there’s a pretty easy solution: just eliminate the voir dire process entirely. Pick 12 people at random, let the judge interview them and eliminate anyone who’s obviously unqualified or has a conflict of interest, and that’s that. You have your jury. Not only would this eliminate the most obvious source of racial bias, but it would have plenty of other positive effects too. It would reduce the number of jurors that courts need to summon, for example. And it would speed up trials. I sat on a drunk driving case once where the jury selection process took nearly as long as the trial itself because the defense attorney was desperately trying to eliminate anyone who might not be entirely sympathetic to a middle-aged guy who got behind the wheel after he’d had a few too many and started weaving around the road. It was a waste of our time, a waste of the judge’s time, and a waste of taxpayer money. (And we convicted the guy anyway.)

This is the way jury selection works in Britain, and guess what? Justice seems to be served just fine. The only downside, I think, is that John Grisham wouldn’t have been able to write his best book. I can live with that.


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Filed under Race, The Constitution

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