Exclusion of Blacks From Juries Raises Renewed Scrutiny
SHREVEPORT, La. — Here are some 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.
The prosecutors had all used peremptory challenges, which generally allow lawyers to dismiss potential jurors without offering an explanation. But the Supreme Court makes an exception: If lawyers are accused of racial discrimination in picking jurors, they must offer a neutral justification.
“Stupid reasons are O.K.,” said Shari S. Diamond, an expert on juries at Northwestern University School of Law. Ones offered in bad faith are not.
In Louisiana’s Caddo Parish, where Shreveport is the parish seat, a study to be released Monday has found that prosecutors used peremptory challenges three times as often to strike black potential jurors as others during the last decade.
That is 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 Georgia, prosecutors excluded every black prospective juror in a death penalty case against a black defendant, which the Supreme Court has agreed to review this fall.
“If you repeatedly see all-white juries convict African-Americans, what does that do to public confidence in the criminal justice system?” asked Elisabeth A. Semel, the director of the death penalty clinic at the law school at the University of California, Berkeley.
As police shootings of unarmed black men across the country have spurred distrust of law enforcement by many African-Americans, the new findings on jury selection bring fresh attention to a question that has long haunted the American justice system: Are criminal juries warped by racism and bias?
Some legal experts said they hoped the Supreme Court would use the Georgia case to tighten the standards for peremptory challenges, which have existed for centuries and were, until a 1986 decision, Batson v. Kentucky, considered completely discretionary. (Judges can also dismiss potential jurors for cause, but that requires a determination that they are unfit to serve.)
But many prosecutors and defense lawyers said peremptory strikes allow them to use instinct and strategy to shape unbiased and receptive juries. “I’m looking for people who will be open, at least, to my arguments,” said Joshua Marquis, the district attorney in Astoria, Ore.
Jeff Adachi, San Francisco’s elected public defender, said peremptory challenges promote fairness.
“You’re going to remove people who are biased against your client,” he said, “and the district attorney is going to remove jurors who are biased against police officers or the government.”
Reprieve Australia, a group that opposes the death penalty and conducted the Caddo Parish study, said the likelihood of an acquittal rose with the number of blacks on the jury.
No defendants were acquitted when two or fewer of the dozen jurors were black. When there were at least three black jurors, the acquittal rate was 12 percent. With five or more, the rate rose to 19 percent. Defendants in all three groups were overwhelmingly black.
Excluding black jurors at a disproportionate rate does more than hurt defendants’ prospects and undermine public confidence, said Ursula Noye, a researcher who compiled the data for the report.
“Next to voting,” she said, “participating in a jury is perhaps the most important civil right.”
‘It Dashes Your Hopes’
Prospective jurors arriving at the courthouse here walk past a towering monument to the Confederacy, featuring grim likenesses of four Confederate generals.
Carl Staples, a 63-year-old African-American, recalled how the monument made him feel when he reported for jury duty.
“It dashes your hopes,” he said, taking a break at the gospel radio station where he works as an announcer. “It has its roots in the ideology of white supremacy.” He said much the same thing during jury selection in a 2009 death penalty case, and that played a part in his dismissal for cause.
Caddo Parish is 48 percent black, and 83 percent of the defendants in the new study were black. But the typical 12-member criminal jury had fewer than four blacks on it, the report said.
Much of the gap had nothing to do with peremptory strikes. Of the 8,318 potential jurors in the study, which reviewed 332 trials from 2003 to 2012, only 35 percent were black.
Professor Diamond suggested reasons for this. Blacks may be less likely to be on jury lists that are drawn from voter registration records, less likely to appear when called, more likely to qualify for hardship exemptions and more likely to be disqualified for felony convictions.
Still, prosecutors here used peremptory strikes against 46 percent of the black potential jurors who remained, and against 15 percent of others. In 93 percent of trials, prosecutors struck a higher percentage of blacks than of others.
Dale Cox, the parish’s acting district attorney, said jury selection was more art than science and could not be quantified. “Statistics can be misleading,” he said. “There could be any number of variables that would explain those strikes that have nothing whatsoever to do with race.”