Peremptory Strikes, Peremptory Yikes

By Henry Parkhurst

Writing 111: Writing Seminar

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It happens. In my hometown, and yours, too. Juries across the nation are selected according to racial bias. People are included in and excluded from participating in a fundamental tenet of our democracy by the color of their skin alone. Historically, African Americans have been denied justice by jury selection that packs the jury with those who let color alone define their verdict. In the United States of America, you retain the right to have a public trial by an impartial jury, one made of your peers. The Civil Rights Act of 1875 outlawed preventing jurors from serving on the basis of race. Why then have an incomprehensible number of lives, directly and indirectly, been affected by racially biased juries? As Americans, we must strive for better..

I live in a small, rural town in Maryland and had the opportunity to work for a defense lawyer there this past year. When thinking about how racial discrimination in jury selection affects my hometown, I decided to give the lawyer, Dan Rosendale, a call. In response to whether or not it was an issue, his answer couldn’t have been more clear. “Of course it happens here,” he said. “No matter where you are, people have personal opinions and attitudes about others. And lawyers know that”.

From a randomly generated jury pool, prosecutors and defense attorneys have the ability to strike jurors. Prosecutors and defense attorneys can interview potential jurors to analyze their relationship to the case. Jurors relatively easily can be struck for cause by lawyers, that is if they have any traits or connections to the parties involved which would obscure the impartiality of the jury. The judge has the ability to confirm or reject strikes for cause. Additionally, lawyers can utilize peremptory, or discretionary strikes, which can remove jurors without a stated reason, and judges cannot refute them (Rosendale).

Ron Wright, a law professor at Wake Forest University, recently compiled some of the first empirical data on how racial bias plays out in selecting a jury. Most prosecutors and defense attorneys utilize peremptory strikes, which allows them to remove jurors from the potential jury pool, to create a jury that is more likely to favor their respective parties. It is generally understood, however, that these peremptory strikes provide a window through which bias can enter the jury. “Prosecutors use these challenges to remove nonwhite jurors, who are statistically more likely to acquit, while defense attorneys — who can step in only after the pool has been narrowed by prosecutors — typically counteract by removing more white jurors” (Wright). While not surprising, this empirical conclusion should serve as a wake-up call to voters and those who work in the justice system. In order to uphold the equal protection of the laws guaranteed by the United States’ Constitution, we have an obligation to our country to eliminate possible sources of racial discrimination.

Beyond simply announcing that there is some racial discrimination in the jury selection in cases involving non-white defendants, Wright’s study revealed that prosecutors remove non-white potential jurors at twice the rate of their white peers. Defense attorneys do just the opposite, yet because they get to remove jurors after the prosecutor, they are unable to overcome the effects of the prosecutor’s peremptory strikes. When lawyers are able to, and statistically they have been, they can skew juries with regard to race. Its overall effect is that it provides a legitimate reason to lose faith in our American justice system as there is a proven barrier to participate in it freely. Perhaps most immediately though, it results in a jury which is neither impartial nor made up of a true cross section of societal peers (Wright).

While Wright’s empirical study confirms a well-known suspicion, issues surrounding a fair jury of peers have lasted almost as long as American democracy itself. In 1965, when handling “the tension between the Constitution and the peremptory strike, the [Supreme] Court chose the [peremptory] challenge,” which arose during Swain v. Alabama (Morrison). Founding tenets of American democracy suggest that all are created equal. The Constitution defends this by including amendments and clauses which ensure that all United States citizens are equally protected by the law. The peremptory strike creates a loophole which allows arbitrary judgement to defile the very equality which the Constitution serves to protect. The Swain case involved an African-American man charged with the rape of a white woman. When selecting a jury, the prosecution used six peremptory strikes to eliminate all six potential African-American jurors in the pool. Even though it was apparent that race was the reason for their removals, the Supreme Court defended that neither the equal protection of the law clause of the Fourteenth Amendment nor the Sixth Amendment’s guarantee of an impartial jury of peers could touch the peremptory strike, as being arbitrary was part of the strike’s power. The Court took the position that it was “an arbitrary and capricious right, [which] must be exercised with full freedom” (Morrison). The Court, however, failed to recognize that this “freedom” could lead to misadministration of justice.

Fortunately for civil rights activists, and those of us who see racial discrimination as a violation of our democracy and founding principles as a nation, progress was made towards limiting the sort of untouchability peremptory strikes possessed. In 1985 a similar case to that of Swain appeared before the Supreme Court. In Kentucky, James Kirkland Batson, an African-American man, was charged with burglary, tried by an all-white jury after the prosecutor had eliminated the four potential African-American jurors using peremptory strikes. This time, the Supreme Court responded with a precedent to be followed in the future to help prevent the removal of jurors on the basis of race. The result is what is now known as the Batson challenge. Initially, the defense must argue “that the defendant is a member of a cognizable racial group and that there is a pattern of excluding members of this racial group through the use of peremptory challenges” by the prosecutor (Weddell). In response to this claim by the defense, the prosecution is prompted to give a race-neutral explanation for the strike. Finally, the judge has the power to decide whether there is a pattern of racial targeting or whether the newly given explanation suffices (Weddell).

The Batson challenge now provides the defense with a way to combat displays of racial bias in jury selection, yet it does not do enough. In 1987, a 19-year-old African-American man, Timothy Foster, faced a death penalty sentence after being tried by an all-white jury. How could that have happened if the Batson challenge existed already? This case provides evidence for the striking failures of the framework Batson put in place. Years afterward, comments from the prosecution revealed that they had ranked the potential jurors according to race in order to avoid jury selection coming “down to having to pick one of the black jurors” (Liptak). When Batson-challenged, the prosecutor, Mr. Lanier, simply provided a false explanation, and later he smugly responded “all I have to do is have a race-neutral reason” (qtd. in Liptak). Echoing the Supreme Court’s analysis of the arbitrary nature of the peremptory strike, prosecutors and proponents of the strike are content with simply providing any non-racial reason for removing the juror, regardless of its legitimacy. The reason given for the strikes often include illegitimate excuses such as “too old, too young, divorced, . . . religion, social worker, renter, . . . single, overeducated, lack of maturity, improper demeanor, unemployed, improper attire” (Joy). In Foster’s case, the judge failed to accept the Batson challenge, and an all-white jury sentenced a 19-year-old man to die.

I turn 19 this summer. My friends are 19.What if it were me in front of a jury that had decided my fate? What if the color of my skin meant that someone had already decided that I was a liar, or a threat to society? While this isn’t my reality, it is for some of my closest friends and many of our peers. We can’t sit comfortably knowing that such a fear looms over people we care about.

Batson challenges clearly have not done enough to prevent racial bias from entering juries. Some states, like Washington, have made strides towards improving the jury selection process. There, “peremptory challenges defended with explanations highly correlated with race, like ‘prior contact with law enforcement’ or ‘living in a high-crime neighborhood’” have been outlawed by the state Supreme Court (Wright). These questions racially target African Americans and Latinos. By excluding these questions from being asked, the prosecution is forced to have a more neutral rationale for the removal of jurors. This step helps, but it does not go far enough. It’s a simple roadblock which may be overcome too easily.

Another proposed solution is to eliminate peremptory strikes entirely from the jury selection process. Proponents of this resolution accurately remind us that there is no constitutional requirement to involve peremptory strikes in the selection process. By removing the strikes, the opportunity to craft a jury for a specific case is lost, thus the respective parties cannot create an advantage over each other. However, “without the peremptory challenge, the judge alone would have final say over who serves on the jury” (Morrison). This creates a new problem: the potential biases of one person controls the fate of the jury. Without a say in the selection, defendants could be left even worse off should the judge choose a jury unfavorable to their party. The peremptory strike, although it provides a window for bias, ensures that each party has a say over who serves on the jury.

At first, I discovered a relatively functional solution to this problem. If the Sixth Amendment ensures an impartial jury of peers, why not ensure that the jury pool is guaranteed to possess the same racial proportion as the district where the case is being heard? For example, a district which is made up of 50% white people, 30% African-American people, and 20% Latinos would have those same proportions represented in every jury pool. While this wouldn’t guarantee the jury would follow those exact percentages, it would do a better job of making minority representation far more likely, and it would become more evident when specific racial groups were being excluded from service (Joy). However, this method creates issues as well. First, a minority in an 85% white district could easily sit in front of an all-white jury. Perhaps more significantly though, opposers of this suggestion, like Dan Rosendale, remind us that race does not always play a role in determining peers. While it frequently is involved with selecting people we associate or sympathize with, it would actually be more discriminatory to insist that peers must be divided by race.

There’s one solution that may maintain an impartial jury of peers while still giving legal teams the ability to shape the jury. Having both legal teams negotiate peremptory strikes could eliminate racial bias from perverting the jury. This new system would still ensure that both the prosecutor and the defense attorney can use strikes for cause. However, once the pool has been winnowed down to twelve acceptable jurors, the two will go into a brief conference in which each has a limited number of peremptory strikes. In order for a juror to be struck, both sides must come to an agreement. Therefore, each side can make concessions to keep or remove jurors, yet race will be taken out of the picture as logically the two teams wouldn’t agree to remove the same person on account of their race (Morrison).

Maybe negotiating peremptory strikes could have saved Tim Foster’s fate. Maybe it would prevent a boy like myself from having to be scared about whether the law would treat him fairly. Maybe it could save lives from cold discrimination.

We have the power to enact this change. We are the upcoming voters. We have a voice. Talk to your local representatives, your congressmen and women, people in your school, church, club or sport. The beauty of our democracy is that when we see a weakness in it we have the power to correct it. Contact your local leaders. A change in how we as a nation address jury selection enables more people to participate in our democracy and allows justice to be served properly. A referendum for negotiating peremptory strikes can happen. Even this small change in your community can inspire change elsewhere. I urge you to think about yourself about to be judged by people who have already decided your fate, without evidence. What would you want our country to do? We can be that change.

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Works Cited

Joy, P. A., & McMunigal, K. C. (2016). “Racial Discrimination and Jury Selection.” Criminal Justice, 31(2), 43-45.

Retrieved from http://go.libproxy.wakehealth.edu/login? url=https://search.proquest.com/docview/1812373156

accountid=14868

Liptak, Adam. “Exclusion of Blacks from Juries Raises Renewed Scrutiny.” The New York Times, 16 Aug. 2015.

NYTimes.com, https://www.nytimes.com /2015/08/17/us/politics/ exclusion-of-blacks-from-juries-raises-renewed

scrutiny.html.

Morrison, C. M. (2014). “Negotiating Peremptory Challenges.” Journal of Criminal Law & Criminology, 104(1), 1-58.

Retrieved from http://go.libproxy.wakehealth.edu/login?url=https://search.proquest.com/docview/1501857597

accountid=14868

Rosendale, Dan. Personal Interview. 7 April 2019.

Weddell, H. (2013). “A Jury of Whose Peers?: Eliminating Racial Discrimination in Jury Selection Procedures.” Boston

College Journal of Law & Social Justice, 33(2), 453-486. Retrieved from http://go.libproxy.wakehealth.edu/login

url=https://search.proquest.com/docview/1459329526?accountid=14868

Wright, Ronald. “Yes, Jury Selection Is as Racist as You Think. Now We Have Proof.” The New York Times, The New

York Times, 4 Dec. 2018, www.nytimes.com /2018/12/04/opinion/juries-racism-discrimination-prosecutors.html.

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A Word from Henry

Until relatively recently, writing had never been something I truly enjoyed doing. I’ve always been more of a talker. I spend hours rambling on about virtually any topic, from religion to what I had for lunch. A lot of it is frivolous; not that it’s not interesting, but it’s just mostly excited blabbering about insignificant happenings. However, every once in a while I enter a channel somewhere blurred between thought and speech about something truly impactful and am left with a desire to tell the whole world what I have to say. The trouble is, that’s not very practical. Through this assignment, I realized writing was the closest thing I may ever get to such a platform.

Writing a persuasive essay on racial bias in jury selection was a really engaging thought experiment for me, primarily because I didn’t quite know what to make of the issue until I began writing. Trying to solve lingering forms of racial discrimination without further injecting race as a manner of dividing people proved difficult. In efforts to combat this, I returned to my medium of choice: conversation. I talked to anyone who would listen to my topic. As each person reacted to my understanding of how racial bias functions in this particular aspect of legal procedures, their response gave me a wider variety of opinions to pull from. In talking, I was learning, both from myself and whoever was listening, steadily refining and gaining confidence in my own solution. Eventually I found myself in my favorite creative space, the blur between thought and diction. This time, however, it was on paper.

The final product of this assignment serves as the platform I had always desired to have while speaking. While naturally I hope any readers would agree with my claims and solutions, I am more hopeful that it can serve as a taking off point for everybody else who can continue on the process of refining and gaining confidence in their own opinion.

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From Professor Phoebe Zerwick