Batson and How Prosecutors Still Exclude Non-White Jurors

Prosecutors believe that all-white juries are more likely to convict Black or Hispanic defendants, leading many to systematically remove all non-white jurors from the jury box before the start of trial.  Batson‘s method of deterring discrimination in jury selection is easily gamed by determined prosecutors.  It is somewhat effective – it makes everyone in the courtroom think about discrimination during jury selection, as it is usually referenced by the Court at the start of every trial whether the defense makes the Batson motion or not.  It can trip up an incompetent attempt at excluding non-whites from the jury, but it is easily navigated by any competent prosecutor who understands the rules and who can keep track of the racially neutral reasons given for excluding each non-white juror.

Foster v. Chatman

The case of Timothy Foster, decided by the U.S. Supreme Court last year, illustrates how easily prosecutors can sidestep the protections of Batson absent some other smoking gun that establishes bias.  Foster was sentenced to death by an all white jury in Rome, Georgia in 1987.  The prosecutor systematically eliminated all non-white jurors during jury selection, and then urged the all-white jury to sentence Foster to death, to “deter other people out there in the projects.”  Rome’s projects were 90% black at the time.

Prosecutors are trained to provide race-neutral reasons for each black juror that is stricken from the jury panel.  In many cases, they are provided with lists of race neutral justifications that can be provided to the court.  In Foster’s case, the prosecutors eliminated all potential black jurors from Foster’s jury, and provided 8-12 race neutral reasons for each peremptory strike.  Many of the race neutral reasons given were nonsensical, untrue, or equally applied to white jurors that were seated.

When Foster’s attorneys obtained the prosecutor’s notes from the trial years later, they discovered that the prosecutors had marked the names of black jurors with a “B” and highlighted the black juror’s names in green.  On the juror questionnaires of black potential jurors, the prosecutors had circled the word “black” next to the race question.  The prosecutors compiled a separate list of definite “no’s” that included the names of all of the black jurors.

The U.S. Supreme Court reversed Foster’s case and remanded it to the state of Georgia.  The only reason that this case went forward at the late date that it did is because Foster’s attorneys were able to obtain the prosecutor’s notes and those notes did not even try to hide the discriminatory intent during jury selection.  I’ll bet most attorneys who cheat during jury selection do not make records of their cheating as happened in Foster’s case.  In the vast majority of trials where non-whites are excluded from juries, there is no record of the cheating and prosecutors provide a facially valid race neutral reason for each juror strike.

Studies and Other Evidence of Systematic Discrimination in Jury Selection

Studies have shown that non-whites are still being systematically excluded from juries, particularly in southern states.

  • A study of 173 Capital trials in North Carolina, after the Batson ruling, found that qualified black jurors were struck from juries twice as often as qualified white jurors.
  • A study by the Equal Justice Initiative found that in Alabama, Arkansas, Tennessee, Louisiana, Georgia, Florida, Mississippi, and South Carolina, in some counties, up to 80% of African Americans who qualified for jury service were excluded.
  • A study in Caddo Parish, Louisiana, found that prosecutors used peremptory strikes three times as often to strike black jurors as other jurors, which was consistent with prior studies done in Alabama, Louisiana, and North Carolina, where prosecutors used peremptory strikes on black jurors 2 -3 times as much as other races.

The Caddo Parish study illustrates not only the fact of systematic discrimination in jury selection, but also the reasons for it:

. . . 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.

Caddo Parish is 48% black and 83% of defendants in the study were black, but the average jury of 12 had fewer than 4 black jurors.  Prosecutors struck 46% of the potential black jurors but 15% of all others.  Prosecutors struck a higher percentage of black jurors than other jurors in 93% of trials.

Juries should reflect a cross-section of the community, regardless of whether statistically black persons are more likely to acquit a defendant.  The decision of a jury should represent the conscience of the community – all members of the community and not only members of one race or class.

Keep track of the jurors during jury selection, including the juror’s race.  When black jurors are stricken without an obvious reason, make the Batson motion and challenge the jury.  Make them put their race neutral reasons on the record and compare them to the white jurors that were seated.  And remember that Batson applies regardless of the seriousness of the charges – I had a police officer dismiss all black jurors that were called in a misdemeanor trial in central jury court (magistrate court) in Horry County, I made the Batson motion, and the jury was excused when the officer could not provide racially neutral reasons for excluding the jurors.

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