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Jury Selection Bias

Despite the efforts of lawyers and judges to eliminate racial discrimination in the courts, does racial bias play a part in today?s jury selection? Positive steps have been taken in past court cases to ensure fair and unbiased juries. Unfortunately, a popular strategy among lawyers is to incorporate racial bias without directing attention to their actions. They are taught to look for the unseen and to notice the unnoticed. The Supreme Court in it?s precedent setting decision on the case of Batson v. Kentucky, 476 U.S. 79 (1986), is the first step to limiting racial discrimination in the court room.

The process of selecting jurors begins with prospective jurors being brought into the courtroom, then separating them into smaller groups to be seated in the jury box. The judge and or attorneys ask questions with intent to determine if any juror is biased or cannot deal with the issues fairly. The question process is referred to as voir dire, a French word meaning, ?to see to speak?. During voir dire, attorneys have the right to excuse a juror in peremptory

challenges. Peremptory challenges are based on the potential juror admitting bias, acquaintanceship with

one of the parties, personal knowledge of the facts, or the attorney believing he/she might not be impartial.

In the case of Batson v. Kentucky, James Batson, a black man, was indicted for second-degree burglary and receipt of stolen goods. During the selection of the jury the prosecutor used his peremptory challenges to strike out all of the four black potential jurors, leaving an all white jury. Batson?s attorney moved to discharge the venire, the list from which jurors may be selected, on the grounds that the prosecutor?s peremptory challenges violated his client?s Sixth and Fourteenth Amendment rights to have a jury derived from a ?cross-section of the community?(People v. Wheeler, 583 P.3d 748 [Calif. 1978]). The circuit court ruled in favor of the prosecutor and convicted Batson on both counts. This case went through the courts and finalized in the U.S. Supreme Court.

In a 7-2 decision, the Supreme Court ruled in favor of Batson. The Court held that the Fourteenth Amendment forbids the prosecutor from challenging potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to consider the state?s case against a black defendant impartially

(74 A.B.A.J. 54, April, 1988). Quoting an 1880 ruling that barred the exclusion of blacks from the jury venire itself; Justice Powell?s opinion for the Court stressed the importance of excluding racial prejudice from the jury process.

?The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. Discrimination within the judicial system is most pernicious because it is

?a stimulant to the race prejudice which is an impediment to securing to

[black citizens] that equal justice, which the law aims to secure to all others.?? (72 A.B.A.J. 68, July, 1986)

With the Court?s ruling new standards were set that required the defendant to show:

–That they are members of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendants? race

–The defendants may rely on the fact that peremptory challenges are a jury selection practice which allow those who are minded to discriminate to do so

–That these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. (Batson v. Kentucky 476 U.S. 79 [1986])

The Batson case had been given retroactive effect, under the new standards, to all cases that were pending on direct review or not yet final. This decision brought, to the courts, a wave of cases that desired revision. Each case helped form the implications that would be used to approve or disprove Batson in future cases. Peremptory challenges racially motivated cannot

be raised for the first time on appeal (Hamilton v. Georgia 351 S.E.2d 705 [Ga.App. 1986]). Objections to the prosecution?s peremptory challenges must be raised at trial (Bowden v. Kemp 793 F.2d 273 [Fth Cir. 1986], United States v. Erwin 793 F.2d 656 [11th Cir. 1986]). Objections must be raised before the jury is sworn in (People v. Ortega 156 Cal. App.3d. 63[1984]). Also, if one black juror is removed even though other black jurors were accepted, as long as it was racially motivated Batson is applicable (United States v. David 803 F.2d 1567[11th Cir. 1986]).

Some court decisions resulted in prima facie cases. Latin for ?at first look,? or ?on its face,? prima facie refers to a lawsuit or criminal prosecution in which the

evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence

presented at trial (www.dictionary.law.com). New Jersey v. Gilmore, 511 A.2d 1150 (N.J. 1986) ruled that a prosecutor?s inconsistent explanations, although he said he dismissed two black women because he did not want jurors with ?maternal instincts?, he accepted white mothers, is cause for a prima facie. Reasoning based on intuitions or gut feelings in excluding jurors may

constitute impermissible group biases (Commonwealth v. McCormick 519 A.2d 442 (Pa. 1986).

There were also cases that tried for a prima facie but did not succeed. All blacks were dismissed from the jury, but no racial issue was raised because the killing involved a black defendant and a black victim and a black witness (Commonwealth v. McKendrick 514 A.2d 144 (Pa.1986). When there is sufficient bases for striking black jurors, for example, one was acquainted with a witness, a second had a brother and sister convicted the county, and a third indicated he was familiar with an officer involved in the case, no prima facie can be established (Phillips v. State 496 N.E.2d 87 [Ind. 1986]).

In 1991 the Supreme Court expanded on their decision and extended the Batson ruling to civil cases

also. Not all of the Justices were in favor of the ruling. Divided 6 to 3, the three dissenting justices said racial discrimination by private lawyers exercising their peremptory challenges is ?abhorrent? but is not prohibited by the Constitution (The Wash. Post June, 1991). Fortunately that was the minority vote. Cases involving employment, licensing, and negligence deserve racial bias protection just as much as criminal cases. The three dissenting judges claim that the Constitution does not account for private discrimination, only state action is prohibited. Justice O?Connors said, ?A trial, particularly a civil trial, is by design largely a stage

on which private parties may act…The government erects the platform; it does not thereby become responsible for all that occurs on it.? (The Wash. Post, June, 1991). Understandably people reserve the right to pursue and defend private legal matters but, the decisions are based on our law and our law is based on protecting us as citizens. We do not have a laisse-faire government and until we do society depends on the courts to see people are treated fairly. As Justice Kennedy states

?Few places are a more real expression of the constitutional authority of the government that a

courtroom, where the law itself unfolds? (The Wash. Post, June, 1991).

Now that the Batson case has been applied to Criminal and Civil cases where else could racial bias erupt? In 1989 the California Supreme Court ruled 5 to 2 that the jury panel should be based racially on the population of the judicial district where the case is tried, a ruling that rejected a black defendant, accused of murdering a white victim, claiming he was entitled to a jury representative of the county as a whole. The court held that a defendant has no constitutional right to a trial in the district where the crime is committed,

but may be tried anywhere in the 4,000-square-mile county if a court so orders. The attorneys argued that blacks comprised 1.5% of the North County population, from which juries were established to hear cases, while blacks comprise 4.5% of the population countywide. The court maintained that the Sixth Amendment right of a fair trial does not limit government?s ability to define the community from which jurors are selected. Albert J. Menaster, a Los Angeles Deputy Public Defender, stated

that the decision on trial transfers conflicted with the historic American legal tradition of trying cases in the

community where a crime occurred..giving the defendant a trial by peers and the immediate community a direct role in the case (Los Angeles Times, San Diego County Edition, Nov. 1989). The African American people are a minority to begin with, but to take a black man and locate his trial in an area of even fewer blacks deserves some attention and reconsideration. White Americans don?t worry about discrimination of this intent because they are the majority. Surely, few would argue that if a white man accused of robbing a black man?s home was sent to trial in a predominately black county with an almost all black jury his chances of acquittal would be slim.

Another decision by U.S. District Judge Jack Tanner of Tacoma, on May 29, 1992, denied a request by federal public defender, Robert Mahler, to give him time to prove that minorities are under-represented in federal-court juries in Western Washington. Mahler asked for a 90-day investigation to inspect records followed by two-weeks to file motions to dismiss the indictment or begin the proceeding on the grounds of racial discrimination

involving a Mexican defendant on drug charges. He presented an affidavit stating that less than 5 percent

of jury members have been African American, and fewer than 2 percent have been Hispanic even though the 1990 census showed a combined nonwhite population of more than 8 percent in the 10 counties from which the court draws jurors (The Seattle Times, May 1992). Washington State chooses their jurors by voter registration, which limits the selection to only those citizens who vote. One may say that if someone is not registered to vote then they should not be on the jury to make legal decisions. That is not the idea behind a trial by jury. Not voting does not shelter you from what is going on in your community or neighborhood. A jury of peers is what our legal system states, not dedicated voters only. An alternative to selecting jurors would be driver?s licenses. There are more people who drive than vote.

Many attorneys and legal scholars claim that an impartial jury is unattainable. The first step taken was to define peremptory challenges with more alertness to possible bias. The next step up for debate is whether the 200 year old tradition should be eliminated

altogether. No decision has been made yet, but opinions have been widely spread on the matter.

Peremptory challenges have become ?a cloak for discrimination? and should be abolished, former Philadelphia Bar Association Chancellor Andre L Dennis told the city Human Relations Commission at a hearing on racial bias in the court system on October 13, 1998. And Wanda E. Flowers, co-chair of the bar association task force, called for greater awareness of ?subtle racism which leads to unconscious discriminatory conduct? (The Legal Intelligencer, Oct., 1998). Many lawyers conclude that the peremptory challenges are long, drawn out, and arbitrary. An impartial jury is not the goal during voir dire. Attorneys are looking

for people who are most likely to convict or not to convict. Peremptory challenges take away from the ?jury of one?s peers?. Sifting through people to find the most qualified is not taking a random sample of the community.

On the other side of the debate, Alan M. Rubenstein, a county District Attorney, says ?No matter what their race, ethnicity or gender, jurors bring their biases to the courtroom..and peremptories are needed to

sort out individuals who, in the lawyer?s judgment, will be overcome by their prejudices? (The Legal

Intelligencer, April, 1997). Not only do people experience different aspects of life that could interfere with their choices; many people are reluctant to answer probing questions during voir dire with honesty. They may feel as if they are put on the spot and respond differently than if they were under a more social setting.

The defense deserves the right to a trial as fair and impartial as possible. Random selections do not allow attorneys to identify possible bias due to past experiences. Through voir dire racial discrimination by the juror can be detected and removed. A person may not

want to admit their prejudices against a certain group of people because of embarrassment, but peremptory challenges allow lawyers to dismiss those who are ambivalent about certain questions. Abolishing peremptory challenges may not decrease racial motivation in the courtroom if only a few minorities are selected for the jury to begin with.

The jury selection process in Delaware County was challenged before a Pennsylvania Supreme Court. Media

practitioner Hugh J. Bracken argued that the jury pool misrepresented blacks and other minorities with respect

to low incomes and young adults (The Legal Intelligencer, April, 1997). The court did not update their jury list, as required by law, which resulted in the failure to acquire current addresses of low income resident who tend to move more often than the affluent. Bracken claimed that only 6.25 percent of those reporting for jury duty were black, although they made up 10.2 percent of the county?s population. The ruling was not in favor of Bracken but the courts have changed trial practices in Delaware County. Because a Batson challenge may be made, attorneys have become more sensitive to the racial makeup of juries.

The Batson case has put our judicial system a step forward in the right direction. There are ways around, for example, an attorney could come up with almost any reason other than a racial bias for dismissing a jury or a minority defendant could be tried in an area of the county that is predominately white. All we, as a society, can do is take one step at a time and review the rules as they confront us. Our legal system has a long way to go but yet, it has come a long way.

Abramson, Jeffrey (1994). ?Why jurors are wiser than judges? The Economist, Nov. 12: pg.117.

Arkin, Marc (1996). ?Order in the Court? City Journal, Vol. 6, No.1: pg 13.

Booth, William (1994) ?Bias and Race Still Pertinent As 3rd Beckwith Trial Opens? The Washington Post, Jan. 21: pg A2.

Breck, David (1988) ?Peremptory Strikes after Batson v. Kentucky? ABA Journal, April: 74 ABAJ 54.

Bryant, Tim (1990) ?Convict wins Appeal; Cited Race Bias in Jury Selection? St. Louis Post-Dispatch, Oct. 17: pg 3A

Egelko, Bob (1999) ?Bias in jury selection gets harder to prove? The San Diego Union-Tribune, June 29: pg A-3..

Gaudino, Marie (1997) ?Refusal to Ask Jurors About Racial Bias Is Harmless Error If Race Is Not a Factor in Case? New Jersey Lawyer, June 23: pg 20.

Hager, Philip (1989) ?Sharp Discord Marks Justices? Rulings on Race? Los Angeles Times, Nov. 2: Part A; pg 1; Column 3.

Hager, Philip (1986) ?Court?s term marked by blows to race bias; justices ok affirmative action, ease challenges to discrimination in voting, pay, jury selection? Los Angeles Times, July 4: Part 1; pg 1; Column 2.

Lewis, Peter (1992) ?Judge Kills Bid To Study Race Bias In Jury Pools? The Seattle Times, May 30: pg A9.

Marcus, Ruth (1991) ?High Court Bars Race Bias In Selection of Civil Juries; Ruling Says Skin Color No Test of Impartiality? The Washington Post, June 4: pg A1.

Riccardi, Michael (1998) ?Dennis: Get Rid Of Challenges Without Cause? The Legal Intelligencer, Oct. 14: pg 1.

Smith, William (1997) ?Useful or Just Plain Unfair? The Debate Over Peremptories; Lawyers, Judges Spllit Over the Value of Jury Selection Method? The Legal Intelligencer, April 23: pg 1.

Smith, William (1997) ?McMahon Plays Opposite Side of Batson Fence? The Legal Intelligencer, April 9: pg 1.

Stewart, David (1986) ?Court rules against jury selection based on race? ABA Journal, July 1: 72 ABAJ 68.

Zwillman, Blair and Albin, Barry (1999) ?Legislature Sould Defeat Proposal To Reduce Peremptory Challenges? Nov. 29: pg 23.

Batson v. Kentucky 476 U.S. 79 (1986).


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