US Supreme Court Takes On Racial Discrimination In Jury Selection

Interesting, and symptomatic of the situation in so many areas:

The U.S. Supreme Court wrestles Monday with a problem that has long plagued the criminal justice system: race discrimination in the selection of jurors.

“Numerous studies demonstrate that prosecutors use peremptory strikes to remove black jurors at significantly higher rates than white jurors.”

Those are not the words of the defense in the case. They come from a group of highly regarded prosecutors, Republican and Democrat, conservative and liberal, who have filed a friend-of-the-court brief siding with Timothy Foster, who was convicted and sentenced to death in the killing of an elderly white woman in Georgia.

It has been nearly 30 years since the Supreme Court sought to toughen the rules against racial discrimination in jury selection. But Foster’s lawyers argue that black jurors were systematically excluded from the jury at his trial in 1987, while judges at all levels looked the other way for nearly three decades thereafter.

Jury selection is done according to a set of rules. Prospective jurors are usually questioned by both prosecution and defense lawyers and then winnowed down in two different ways. First, the judge removes, “for cause,” those jurors deemed incapable of being impartial. Next, each side, prosecution and defense, has a set number of peremptory strikes, meaning that a certain number of prospective jurors can be eliminated without a stated reason, or for no reason at all.

In 1986, the Supreme Court added a third step in a case called Batson v. Kentucky. Under the Batson rules, if the defense could show a racial pattern in prosecution peremptory strikes, the prosecutor would have to justify each one by demonstrating a non-racial reason for eliminating the juror.

Still, prosecutors found ways to get around this new rule, as demonstrated by an infamous training video made in Philadelphia in the late 1980s after the court’s decision in Batson. The video features then Assistant District Attorney Jack McMahon advising trainees that “young black women are very bad, maybe because they’re downtrodden on two respects … they’re women and they’re blacks.”

He goes on to recommend avoiding older black women too, as well as young black men, and all smart, and well educated prospective jurors.

But, McMahon reminded the trainees that they had to come up with a non-racial reason for their strikes: “When you do have a black juror, you question them at length and on this little sheet that you have, mark something down that you can articulate at a later time if something happens,” he says.

Studies have shown that these proffered reasons are often a mere pretext for racial discrimination. A North Carolina study of jury selection in 173 death penalty cases found that black prospective jurors were more than twice as likely to be struck by the prosecution as similarly situated white jurors. A 2003 study of 390 felony jury trials prosecuted in Jefferson Parish, La. found that black prospective jurors were struck at three times the rate of whites. And in Houston County, Ala., prosecutors between 2005 and 2009 used their peremptory strikes to eliminate 80 percent of the blacks qualified for jury service in death penalty cases. The result was that half of these juries were all white, and the remainder had only a single black member, even though the county is 27 percent black.

Source: Supreme Court Takes On Racial Discrimination In Jury Selection : NPR