Blacks dismissed: lawyers' process to sort potential jurors under scrutiny

In the post-Ferguson climate now engulfing the US criminal justice system, legal scholars and civil rights activists are once again raising questions about a centuries-old pretrial procedure: peremptory challenges.

With such challenges, attorneys have the right to immediately reject a certain number of potential jurors, no questions asked. Though attorneys can now contest this open-ended removal of certain potential jurors as racially biased, the issue of peremptory challenges itself has been more or less dormant until recently, legal experts say. Now, as the nation reevaluates its criminal justice systems with a bipartisan concern that black defendants are being treated unfairly, many are beginning to scrutinize this legal process.

On Monday, a decade-long study of a jurisdiction in Louisiana revealed that prosecutors used their discretion with peremptory challenges three times more often for black potential jurors than for white potential jurors, striking 46 percent of blacks and 15 percent of nonblacks from jury trials. Other studies in at least three other states have found similar rates of peremptory dismissals of black potential jurors.

The study, released by Reprieve Australia, an anti-capital punishment advocacy group, also found that when there were two or fewer black jurors, no defendants were acquitted in Caddo Parish, a jurisdiction including Shreveport, La. If three of the jurors were black, the acquittal rate rose to 12 percent, the study found. With five or more black jurors, the rate was 19 percent.

“There are a lot of prosecutors who know this drill, and they know exactly what they are doing when they excuse people of color from their juries,” says James Cohen, a law professor at Fordham University in New York, who has selected juries in more than 150 trials.

Peremptory challenges have long been part of the head-to-head combat of jury trials, having been well established even in Anglo-Saxon common law. Armed with their instincts and wit, dueling attorneys attempt to winnow the field of prospective jurors, leaving those who each side believes will be most sympathetic to their case.

Since the 1980s, however, the US Supreme Court has curtailed this no-questions-asked process of exclusion, ruling that peremptory challenges could not be based on race, ethnicity, or gender. Lawyers must at a minimum show that striking of potential jurors was race- or gender-neutral.

But experts say it’s pretty much an open secret that prosecutors often strike black potential jurors from jury pools, easily offering acceptable race-neutral reasons for their exclusion.

“If you’re going to excuse black people, do you have to be terribly creative to come up with a list of reasons? The answer is absolutely not,” Professor Cohen says. “You can think of just about anything other than saying, ‘Yes, Your Honor, I excused that person because he or she is black.’ As long as you don’t say that, that leaves the universe open to a quote-unquote race-neutral explanation.”

The skewed rates of dismissals only reinforce perceptions that the nation’s criminal justice system is unfairly applied within black communities, some say.

This fall, the Supreme Court will hear another challenge to the system of peremptory challenges, and many advocates hope the nation’s highest court will tighten legal restrictions to ensure that the race-based striking of jurors does not occur.

The court will hear the appeal of Timothy Foster, a 19-year-old convicted and sentenced to death in 1987 by an all-white jury for killing Queen White, a white woman. In the pretrial proceedings, all four black potential jurors were dismissed. The prosecution said it struck a 34-year-old black woman because of her “age being so close to defendant.” Another black potential juror was dismissed because her son was once convicted of stealing hubcaps, “basically the same thing that this defendant is charged with,” the prosecutor told the judge.

Still, some defense attorneys say the process is helpful for both sides.

“You’re going to remove people who are biased against your client,” Jeff Adachi, the elected public defender in San Francisco, told The New York Times. “And the district attorney is going to remove jurors who are biased against police officers or the government.”

For his part, Cohen realizes how valuable the process can be as an “instinctive art” in the chess matches of trials.

“I prefer peremptory challenges because – at least I tell myself – I am exquisitely sensitive to the nuances in a prospective juror’s answers to my questions,” he says. “I tell myself that I am able to craft questions with such precision, and with such nuances in my questions – the tone of voice, the body language I am using when I do that – that I am able to interpret their answer most of the time in a way that actually gives me valuable information about whether I should excuse that prospective juror or not.”

But ultimately, Cohen says, the process of peremptory challenges leads “down to the sewer.” Even though the system can help each side weed out those with biases against their clients, it creates a more troubling system of racial biases in the process.

“And I don’t think there’s anything you can do about that,” he says. “I think ultimately, though I will miss it, [the system of peremptory challenges] is doomed.”