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Confronting Racial Bias in Jury Selection

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Confronting Racial Bias in Jury Selection

This course, taught by Angie Setzer, Senior Attorney at the Equal Justice Initiative, takes a deep dive into the critical examination of the racial biases inherent in the jury selection process within the legal system. Designed for legal professionals committed to justice and equity, this course offers a comprehensive exploration of the history of discrimination in jury selection, why representative juries are necessary, and recommendations for combating racial bias in jury selection.

Transcript

Thank you for joining me today for this presentation on representative juries and confronting racial bias in jury selection. My name is Angie Setzer, and I am a senior lawyer at the Equal Justice Initiative, a nonprofit legal organization located in Montgomery, Alabama. EJI was founded in 1989 by Bryan Stevenson to address the crisis of counsel faced by individuals sentenced to death in Alabama. At the time of its founding, about 25% of the executions that were taking place in America took place in Alabama, a state that also provided no legal assistance to people facing execution. Over the last 30 years, EJI has represented hundreds of men and women sentenced to death in Alabama, children sentenced to life without parole, and other individuals who have been wrongfully convicted or subjected to excessive punishment. Through this work and through these cases, we came to see not only how pervasive race discrimination is in the criminal legal system, but the significance of unrepresentative juries, both on the outcomes in individual cases and on the integrity of the system as a whole. Our work in these cases led us to further analyze the jury selection process in eight southern states, including Alabama. So in 2010, we actually published a report, uh, containing our findings. We had gone to these eight states. We had obtained a jury lists, we have gone to courthouses. We actually talked to individuals who had been struck from juries in cases. And this report detailed the ways in which racial bias continues to pervade the criminal legal system. We identified communities like Houston County, Alabama, which has an African American population of about 27%, where from 2005 to 2009, 80% of the qualified African American jurors were removed by prosecutors in cases in which the death penalty was a possible outcome. This 2010 report was cited and relied on by numerous courts, who identified this issue as really critical to our criminal legal system. In 2021, we published an updated report and sort of broadened our approach. We looked at states across the country, and we focused as well on the early stages of the jury selection process and the ways in which jurors of color continue to be excluded at each step of this process. This report, which is available to each of you and can also be accessed on our website, forms the basis of my presentation today. So I want to begin today by providing some background on our country's long history of race bias in the criminal legal system, specifically with respect to jury selection and our continuing indifference to this problem. I'm then going to discuss why representative juries are necessary, why they are important, before moving into an analysis of the specific ways in which black jurors and jurors of color continue to be excluded at every step of the jury selection process. Finally, I will touch on how our laws have developed to make it virtually impossible to obtain remedies for this illegal practice, and what needs to be done to eliminate illegal racial discrimination in jury selection. Before we continue, I want to present just a short introductory video. Racial bias in jury selection is a serious problem that undermines the integrity of the legal system. Juries are supposed to accurately represent communities and their diversity, but far too often black people and people of color are excluded, even though over 40% of Americans are people of color, more than 95% of all prosecutors are white. Most judges are white as well. Local courts create lists of people eligible for jury duty, but in most places, those lists underrepresent black and brown people when people of color are called for jury service. Prosecutors and judges sometimes unfairly exclude them. Then black and brown people who overcome these barriers can still be excluded by prosecutors who use peremptory strikes illegally based on race. Prosecutors who unlawfully strike black people from juries don't get fined, sanctioned or held accountable. The US Supreme Court has said that eliminating racial bias is essential to preserve the public confidence upon which our system of criminal justice depends. That confidence has been shaken. When there is racial bias in the selection of the jury, it's hard to accept the rest of the trial will be fair or that a verdict will be credible. Racial bias in jury selection is illegal. In order to guarantee fair trials for all citizens, states, judges and prosecutors must eliminate this discriminatory practice for good. Okay. So I want to start with our history. The right to a trial by jury made up of neighbors, friends, community members is a sort of core tenet of our democracy, because it safeguards the accused from abuse or overreach by the government. Unlike prosecutors or judges who are elected or appointed, juries are made up of ordinary citizens who represent the values and norms of the communities. Our courts have long recognized, as Justice Kavanaugh did in the flowers v Mississippi decision, that other than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process. But despite how important it is, and it has been for juries to protect community members against government overreach, uh, black people have been excluded from jury service since America's founding. To justify the mass enslavement of black people in a country founded on freedom and liberty. An elaborate mythology was created and emerged based on the idea that black people were inferior, not fully human. This ideology was then in turn incorporated into the legal system, which became a critical mechanism for enforcing white supremacy. And we see this in sort of, you know, back when our country was founded, the Constitution denied black people the right to serve on juries by classifying enslaved people as property. And most states denied free black people the right to serve on a jury and to a jury trial. And these provisions left African Americans largely unprotected from abusive prosecutions. But it also left them really vulnerable to violence and exploitation, because perpetrators of that violence and exploitation would not be held accountable. After the Civil War. Ensuring that African Americans participated in the legal process was a priority. And we see this because in the 12 year period known as reconstruction, um, the focus was on making sure that African Americans had the right to vote and the right to participate in the jury process. And we see this through several laws that were passed during that time period. The 14th amendment, which guaranteed the full rights of citizenship to all citizens regardless of race, which is ratified in 1868. The 15th amendment, which guaranteed black men the right to vote, ratified in 1870. And then additionally, a series of federal acts, the Enforcement Acts and the Ku Klux Klan Act, which were passed in 1870 and 1871, which essentially authorized individuals to go to federal court for civil rights violations and empowered the federal government to prosecute civil rights violations as crimes. And finally, we have the the Civil Rights Act of 1875, which very specifically outlawed race based discrimination in jury selection. At the same time. During this reconstruction period, white resistance to racial equality grew increasingly violent. We know that more than 2000 African Americans were victims of racial terror lynchings from 1865 to 1877, and the white perpetrators of these terror lynchings, who often included community members, elected officials, law enforcement officers, committed these brutal acts with no fear of prosecution or conviction in an all white legal system. Against this racial terror violence. The Supreme Court of the United States began its own assault on the progress toward racial equality. So prior to 1865, the Supreme Court had struck down congressional acts as unconstitutional just two times. But between 1865 and 1872, the Supreme Court struck down 13 congressional acts as unconstitutional. And I'm going to highlight a couple of cases here. I think these are cases that we are, you know, many of us are familiar with from law school, but. You know, we're really sort of critical in undermining this, this progress during this time period. Now, the Slaughter-house cases, in those cases, the court held that the 14th Amendment's Privileges and Immunities Clause, which was written explicitly to protect the rights of formerly enslaved people, did not apply to rights derived from a person's state citizenship, and that those rights were only enforceable in state court, which was a forum dominated by the white ruling class and very hostile to claims by African Americans in the South. United States v Cruickshank in 1876, was a case in which the US attorney in Louisiana had brought federal criminal charges against the white perpetrators of the Colfax massacre. Under the Enforcement Acts of 1870, which I referred to earlier in the Cruickshank case, the Supreme Court held that the 14th Amendment provides protection only against actions of the state, not against individual acts of violence, and essentially eviscerated the enforcement acts entirely. So by the end of reconstruction, the end, it sort of came with the end to political progress. And the right to vote, vote and fully participate in the jury was never fully realized. Although the court did uphold the Civil Rights Act of 1875, the prohibition on discriminatory jury selection, state and local officials ignored these federal laws or just found ways around them. And one example of that is Louisiana. In 1898, the late 1800s Louisiana legislature amended its constitution with the explicit purpose of, quote, establishing white supremacy, end quote. And they one way that they were doing that was to dilute the participation of black jurors. And the legislature passed a law permitting a felony conviction as long as nine out of the 12 jurors voted to convict, which meant that even if, you know one, two, three black jurors voted to acquit, that was not enough. This law was not struck down until 2020, in the case of Ramos v Louisiana. Throughout the early 1900s, the Supreme Court largely turned a blind eye to the rampant and illegal exclusion of people of color on juries, and instead repeatedly deferred to state court decisions, finding that no discrimination occurred. For example, in several cases in which the death penalty was imposed out of Texas, the court found no illegal discrimination, even in cases where an all white jury sentenced a black man to death. In counties where African Americans were more than 25% of the population, and at the same time, white resistance to equality continued to be increasingly violent. Between 1877 and 1950, EJI has documented more than 4400 African Americans who were killed in racial terror lynchings. It was really not until 1935, in the case of Norris v the Alabama, that the Supreme Court finally called out local officials for illegally excluding black jurors. Uh, Norris is a case involving nine black teenagers who were charged with raping a white woman in Scottsboro, Alabama, despite overwhelming evidence of their innocence. Uh, there was an all white jury. And the testimony established that not a single African American had served on a jury in living memory. In that case, the Supreme Court reversed and subsequently reversed six other similar convictions over the next 12 years. Uh, but the Supreme Court's commitment to eradicating racial discrimination in the criminal legal system was fairly fleeting. States continued to devise ways around the legal requirements. Um, they, you know, state officials would do things like use different colored sheets of paper for white and black jurors, and then select the jury with the different colored sheets of paper, or they would use segregated tax rolls for the jury pool. In in 1945 case, the Supreme Court upheld a Texas counties policy of allowing exactly one African American and no more to serve on each grand jury. And so it really wasn't until the 1960s and 70s, in cases like Swayne v Alabama and Taylor v Louisiana that the court began to address the exclusion of black people and people of color from jury service in earnest. So before I talk more specifically about racial bias in jury selection, I want to stop for a minute to just talk a little bit about presumption of guilt, or how our country's failure to adequately confront this history of racial injustice has evolved into a widespread presumption that people of color are suspicious, dangerous, and criminal. The legacy of slavery was the myth of racial hierarchy or the false racial narrative. I mentioned earlier that black people are inferior, which was created to justify the horrific enslavement and really survived the formal abolition of slavery. The myth of a racial hierarchy was reinforced through racial terror lynchings, even after the formal abolition of slavery, when white people defended the brutal torture and spectacle murder of black people as necessary to protect their property and their families and their way of life. And this myth continues today as a presumption of guilt that is assigned to people of color, which targets them for unfair treatment in the criminal legal system. We know that black men are six times more likely to be incarcerated than white men, that Latino men are three times as likely. Uh, in 2003, the Bureau of Justice projected that by that one out of three black boys and one out of six Latino boys born in 2001 would go to jail or prison. And I'm going to, you know, talk a little bit more about this in a minute. But numerous studies have also demonstrated that as a result of this history of racial injustice, this history of inequality, that we have not adequately confronted, people have strong, unconscious associations between blackness and criminality, and that this bias has contributed to the United States prison population skyrocketing from, you know, about 250,000 in the early 1970s to over 2.2 million today. It's the highest rate of incarceration in the world. So let's get back to a little bit about why representative juries are important. First, representative juries are often the only opportunity for a community perspective to impact the outcome of an individual case. Second representative, juries engage in a more thoughtful and deliberative fact finding process and are indispensable to fair and accurate trials. And finally, representative juries instill confidence in the criminal legal system. So let's turn to our first point. Why are representative juries often the only way that community sentiment has an impact on the case? This is largely because even though about 40% of Americans are people of color, judges, prosecutors and law enforcement are disproportionately white. Nationally, there are over 2400 elected prosecutors in this country, and about 95% of those elected prosecutors are white. And this statistic is not confined to states with less diverse populations. In fact, the disparity is especially glaring in states with the most diverse populations. So California, for example, is a state where the population is 63% nonwhite, but only about 10% of its prosecutors are non-white. Similarly, Texas, a state where about 58% of the state's population is nonwhite but only 13% of the prosecutors are non-white. But it's not just prosecutors who are overwhelmingly white. Almost all of our nation's judges are white as well. 20 states currently have all white state supreme courts, the highest court of the state, including 12 states where people of color make up more than 20% of the population. One example is Alabama. Uh, Alabama has 19 appellate judges, all of whom are white. Even though people of color make up about 35% of the population. In 15 of these states. There has never been a black state, Supreme Court justice and other groups that have historically been subject to unfair bias and exclusion are also underrepresented in our nation's courts. There are no Native American state supreme court justices in 47 states, including three of the four states with the largest Native American populations. Federal courts suffer from a similar lack of diversity. For example, judges on the Fifth Circuit Court of Appeals are 75% white, even though more than half of the circuit's population covering Texas, Louisiana, and Mississippi is non-white. And finally, in too many parts of the country, law enforcement agencies don't actually represent the communities they serve. In communities across the country, including ones in Ohio, Georgia, California, new Jersey, the percentage of white officers is more than 30% higher than the community in which they are employed. Nationwide, only 4% of police chiefs are black. The absence of black representation in these positions means that decisions about who to arrest, which crimes to prosecute, and how to punish people are made primarily by individuals who have less experience contending with racial bias. So not only are representative juries often the only opportunity for a community perspective to impact the outcome of a case. But representative juries are indispensable to fair and accurate trials. And I referenced this earlier, but numerous studies have demonstrated that as a result of our history of racial inequality, people have strong, unconscious associations between blackness and criminality, known as implicit bias. And this presumption of guilt and dangerousness makes people of color and black people vulnerable to wrongful convictions and unfair sentences. Connected to this. Studies have shown that racially representative juries engage in a more thoughtful and deliberative fact finding process than all white or nearly all white juries. And the point I want to make here is twofold. First, empirical studies demonstrate that white jurors are more likely to view black defendants as cold hearted, as remorseless, as dangerous, and they also tend to treat black defendants more punitively than white defendants. Second, studies have found that representative juries engage in a more thoughtful and deliberative fact finding process. Um. Rep. You know, representative juries do things like considering more factual information. They're more likely to discuss missing evidence they wished had been presented at trial. They're more willing to discuss controversial issues like racial profiling. Make they make fewer cognitive errors. They're better able to assess the accuracy, accuracy, or reliability of cross racial identifications, which studies have shown to be subject to error, and they generally avoid presuming the defendant guilty. And relatedly, sentencing disparities decline as juries become more racially representatives. In fact, studies have shown that the more white people on a jury, the more harshly a black defendant will be sentenced, especially if the victim is white. And this is particularly true in cases where the death penalty is a possible punishment. In a national study involving capital trials in several states, researchers found that in cases with a black defendant and white victim, all white juries impose the death penalty. 72% of the time, but only 38% of the time when at least one black juror sat on the jury. Finally, representative juries are necessary to instill confidence in the integrity of the criminal legal system. Discriminatory jury selection violates the constitutional rights of the jurors and is humiliating and painful. During our research, we talked with jurors of color who had been excluded from jury service. Jurors like Melody Harris, who lived in Lee County, Mississippi, for a decade and worked for the same company for six years before she was called to serve on a jury. Despite this, she was struck by the prosecutor because the prosecutor claimed that she had, quote, no ties to the community. She knew that she had been treated unfairly. Another juror that we spoke with was juror Brenda Greene, who's a black woman who was removed from a jury in Talladega, Alabama, where she and her husband worked at a local textile mill. Uh, Miss Greene had actually never been made aware of why she was removed from the jury until we showed her the transcript of the prosecutor's stated reason. The prosecutor said that he removed her because her husband sold drugs and she was friends with drug dealers. Miss green was shocked as neither of these things was true. And in fact, what she told us is that the only contact she remembers ever having with law enforcement was pointing in the direction of a suspect who was running when being chased by the police in her neighbourhood. The Supreme Court has recognized that the very foundation of our system of justice is our citizens confidence in it. But it's difficult for the public to have confidence in the fairness of verdicts when juries do not represent their communities. A 2019 survey revealed that 87% of black adults believe that black people are treated less fairly than white people by the criminal legal system, and 61% of white adults agreed. So despite the importance of representative juries, most jurisdictions have not adopted the readily accessible procedures necessary and needed to achieve full representation. As a result, black people and people of color are excluded from participating in our jury system at every step of the jury selection process. When the court system creates lists of potential jurors, when potential jurors are notified to come to court. When judges decide which potential jurors are qualified to serve, and when prosecutors use challenges for cause and peremptory strikes to remove potential jurors. So I want to talk about I'm going to go through each of these steps. I'm going to start with the creation of the jury pools, which is the first step in the jury selection process. The Constitution requires that juries be chosen from a fair cross section of the community. But black people and people of color are often underrepresented because they are often underrepresented in the source lists. Pursuant to the Jury Selection and Service Act, federal district courts rely on voter registration records as the primary source for jury pools, and many state courts use voter registration records as the primary source list as well. But recent changes to voter registration laws and a variety of socioeconomic, historical, and geographic reasons mean that many racial and ethnic groups are not fully represented on voter registration lists. Uh, driver's license lists or driver's license or state ID lists, which are also used by some states, also tend to disproportionately exclude people of color. And this is a problem because if the initial master list is not representative, then the final jury is less likely to represent the community. So after the master list of jurors is compiled, jurors are selected from the list and summoned to come to court by mail. Now, here again is another point in the process that can create disparities. Nationally, an average of about 12% of juror summons are returned as undeliverable, and this may be because courts fail to regularly update the master jury list, um, or because they have failed to run the juror addresses through a change of address database maintained by the US Postal Service. Again, this is another point at which racial disparities are created. People with low income levels who are more likely to move frequently have a higher rate of undeliverable summons than middle or high income people. And because black people and people of color are disproportionately burdened by poverty in our country, they are more likely to be excluded because of this practice. While these practices have led to significant underrepresentation of people of color in jury pools, courts have made it all but impossible for a defendant to succeed in challenging these jury pools as unrepresentative. So I want to talk for a minute about the Sixth Amendment fair cross section challenge. Uh, the Sixth Amendment entitles a defendant to a trial by a jury. Uh, sorry. By an impartial jury drawn from sources reflecting a fair cross section of the community. And the Supreme Court has set out three requirements for challenging an unrepresentative jury pool. First, that the underrepresented group is cognizable, that it is a distinctive group in the community. Second, that the underrepresentation is significant and not fair or reasonable. And this is actually where most claims fail. And that's because most courts use the absolute disparity test, which, to measure the degree of underrepresentation and the absolute disparity test, measures the difference between the percentage of a particular group in the community and the percentage of that group in the jury pool. Um, it's basic subtraction, right? Typically, uh, courts have required that this absolute disparity be greater than 10%. But the problem with absolute disparity is that it does not actually measure the decreased chance the defendant will draw a representative jury because it does not intake. Sorry, it does not take into account a group's size in the community. So, for example, if one group is 75% of the population and 70% of the jury pool. And another group is 10% of the population and 5% of the jury pool. The absolute disparity in both of those examples is 5% 75, -7010 minus five. But the chance that a representative of a group will be impaneled on a jury declined by half in the ten -5% example. Whereas the chance of a representative from that group, um, declined by less than 7% in the 75 uh, -70% example. And that's a really significant difference. In fact, in 2010, in the case of Briggs v Smith, the US Supreme Court acknowledged that this absolute disparity test can be misleading, particularly where the group comprises a small percentage of the population. Indeed, there would likely be no legal challenge to complete exclusion of groups in any place where the group's percentage of the jury eligible population was less than 10%. Um, in 2010. I'm sorry. So so that's sort of one point in the process in this fair cross section challenge where it becomes a problem. But the third requirement is that the cause of the underrepresentation is a systematic practice that causes the underrepresentation. Now. There's no intent requirement in this part of the analysis. So unlike a 14th amendment challenge to discrimination, where there is a requirement of some intent to discriminate, there is no requirement of intent here. Rather, the goal is to identify whether a systematic defect in the jury plan resulted in underrepresentation, whether or not it was intended to discriminate. Um, again, this is a point in which challenges often fail because courts rarely view factors like failing to keep addresses up to date or voting patterns as systematic. And as a consequence, a fair cross section challenge is rarely succeed. In fact, in our report, we identified just one case in the last ten years. And this is a problem because if the initial list is not representative, then the final jury, the actually, you know, the jury impaneled to hear the case is less likely to represent the community. So I want to talk now about the next step in the process, which is juror qualifications and challenges for cause. Again, this is a point, um, where black people and people of color continue to be excluded from participating in the jury process, um, because the requirements for qualification qualifications can still disproportionately impact people of color. Typically, legal qualifications for service include, you know, being the correct age, either 18 or 19, being a citizen, being a resident of the county, usually for 12 months, uh, being proficient in English and not having criminal convictions. But these requirements can still disproportionately impact people of color. For example, English proficiency, uh, federal courts and most state courts require that jurors be proficient in English, but 87% of people with limited English proficiency in the United States are people of color. So in jurisdictions with large numbers of individuals who are not proficient in English, these restrictions produce juries that are not representative of the community. Uh, criminal convictions. We know that in many states, being charged with or convicted of a felony can result in lifetime exclusion from jury service. But many um states also, or some states, at least. Exclude people with criminal I'm sorry, with misdemeanor convictions, which can result in a lifetime exclusion from jury service. And in a couple of states, jurors who have been merely charged with a misdemeanor are excluded from service. So those are ways that legal qualifications can disproportionately impact people of color. Another way that people are can be removed or, you know, not required to serve on a jury is if there is an undue hardship that prevents them from being able to serve. Again, undue hardships also tend to deny people with low incomes the opportunity to serve on juries and further decrease the chance of representative juries. And there's a couple of ways that this can be seen. Um, first, while all states prohibit employers from retaliating against workers because of jury service, most do not compensate the jurors for jury duty. And even in states with generous juror compensation for individuals who have multiple jobs or who are self-employed, they are not compensated for those lost wages. And even where you have juror compensation, most, um, juror pay has not kept pace with changes to minimum wage, with inflation or cost of living. In fact, only one state, New Mexico, has tied juror pay to the prevailing minimum wage. People who have children likely cannot serve without access to affordable child care. People living in poverty may not have access to transportation. All of these things are limiting, right? They limit the representatives of the jury because they decrease the ability of people to participate in the jury process. So even if you get a juror who has been qualified and survived a hardship, um, jurors can be challenged for cause. If they, you know, if a party believes they cannot be fair and impartial. So studies have revealed a stark racial disparity in the way that challenges for cause are used by prosecutors. A recent study of 12 capital trials in Duval County, Florida, from 2010 to 2018 found that black jurors and jurors of color were excluded for cause at rates more than twice that of white jurors. In a North Carolina study involving 1300 trials and 30,000 jurors found that trial judges were 30% more likely to remove prospective jurors of color for cause than white prospective jurors. A 2020 study of challenges for cause in 400 trials in Louisiana and Mississippi, found that black potential jurors were more than three times as likely as white potential jurors to be excluded for cause. In Louisiana, prosecutors used nearly 60% of challenges for cause to remove black prospective jurors, even though only 33% of potential jurors were black. And Mississippi was even worse. Prosecutors used nearly 80% of challenges for cause to remove black prospective jurors, even though only 34% of prospective jurors were black. Notably in cases where courts have found that prosecutors have illegally discriminated against jurors, there is often significant removal of black prospective jurors before the striking process even begins. And jurors. So in flowers v Mississippi, which is a case I referenced earlier that involved the case of Curtis Flowers, who spent 24 years on death row in Mississippi after being tried six times for capital murder. In those six trials, the prosecutor removed 41 of the 42 qualified black prospective jurors. And in 2019, the Supreme Court found a Batson violation and Mr. Flowers was eventually released from prison. But in the Supreme Court opinion, which focused primarily on the peremptory strikes, it's important to note that challenges for cause were responsible for the disproportionate removal of black jurors even before the striking process began. Uh, in that case, the final pool of qualified jurors was relatively balanced and consisted of 88 white jurors and 68 black jurors. But by the end of one year, 100 jurors were removed for cause and only ten black jurors remained. Likewise, in McGehee v Allen, which is an 11th Circuit case where the prosecutor was found to have illegally removed jurors on the basis of race. Um, the prosecutor removed every single one of the 1224 qualified black jurors and death penalty case in Alabama. Eight of those removals occurred as a result of successful challenges for cause. And, you know, challenges for cause are largely unregulated. As long as a party asserts that the juror cannot be fair and impartial, and the judge agrees, that challenge is upheld. As a result, individuals have been removed for cause based on their negative experiences with law enforcement having been the victim of racial bias, or having experienced race discrimination, or even having concerns about the reliability of the criminal legal system. The perspective of African Americans in this country is critical, especially given our history of racial bigotry, and should not form a credible basis for exclusion. So the next step after the jurors have been qualified for service and remain after challenges for cause, the final step is to narrow the pool down to the final jury through the use of peremptory strikes, which can be used to remove qualified jurors for any reason at all. Now, as I mentioned earlier, the Supreme Court first addressed the discriminatory use of peremptory strikes in Swain v Alabama in 1965. In that case, the prosecutor had removed all six of the qualified black jurors. The Supreme Court said that that was not enough to prove intentional discrimination. Rather, the defendant in a case would have to show that the prosecutor engaged in discriminatory conduct over the course of a number of cases, it wasn't enough to show discrimination. In one case, it had to be sort of a history or pattern. And this burden proved too high for Mr. Swain and actually for most defendants. So in 1986, the Supreme Court revisited Swain, acknowledging this very high burden and ruled that it not only can jurors not be excluded on the basis of race in an individual trial, but it set forth the sort of three step legal standard that we are familiar with today. In order to demonstrate intentional discrimination. First, the defendant must make a prima facie case, demonstrating that the facts and circumstances raise an inference of discrimination. Um. The court has made clear that this is a very low burden to meet. If a prima facie case is established, the prosecutor is then required to provide a race neutral explanation for the strike. Again, this court has made clear that this is a very low bar. The only requirement is that the reason be race neutral on its face. The Supreme Court has been clear that the reason does not need to be persuasive or even plausible. And finally, the trial court has, um, the third step is that the trial court must then decide whether the defendant has established purposeful discrimination based on the totality of the circumstances, including the credibility of the prosecutor. Now. In his concurrence in the Batson opinion, Supreme Court Justice Thurgood Marshall expressed concern that this three step process would not actually eliminate race bias in peremptory strikes. And in the 35 years since Batson, its inadequacy to eradicate race discrimination in jury selection has become readily apparent. We know that prosecutors continue to use peremptory strikes in a racially discriminatory manner. The courts remain largely indifferent to racial bias in jury selection. The defense lawyers are ill equipped or unwilling to challenge racial bias, and that excluded jurors frequently have no remedy for challenging discrimination. So I want to go through each of these points separately. First, numerous studies analyzing prosecutor strikes have documented that they continue to use peremptory strikes in a discriminatory manner. Uh, a study in Mississippi of the 25 year period ending in 2017 found that black prospective jurors were four times more likely to be struck by prosecutors than white jurors. In Louisiana. An analysis of 5000 cases from 2011 to 2017 found that prosecutors struck black prospective jurors at 175% of the expected rate, based on their proportion of the jury pool. And in California, a study of 700 criminal cases decided by the state appellate courts between 2006 and 2018, found that prosecutors used peremptory strikes to remove black jurors in nearly 72% of the cases, while using peremptory strikes against white jurors and fewer than 1% of the cases. So I want to spend some time looking at how prosecutors, judges and defense lawyers remain largely indifferent to the need for representative juries and how the jurors themselves have no real recourse when they are discriminated against. Prosecutors are elected representatives of the community they serve and are obligated to follow the law. But it seems that Batson did not deter illegal discrimination so much as it incentivized ways around it. Many prosecutors offices responded to Batson by training prosecutors on how to strike black people without triggering judicial scrutiny, or creating lists of the types of justifications that have been deemed acceptable by the courts. And so, in the cases we see that prosecutors continue to use insulting, pretextual reasons intended to conceal racial bias. Um, for example, the use of low intelligence is a negative stereotype that has been used throughout history to exclude African Americans from voting and jury service, but it's still asserted by prosecutors as a basis for a strike. That happened in the case of McGehee v Allen, the case I referenced earlier, where the prosecutor claimed to have struck six black jurors because of alleged low intelligence. Despite asking no questions and having no information about their education, grades, IQ scores or what degrees they may have obtained. Other reasons that prosecutors continue to rely on, including living in a high crime area or a bad zip code, which is often used as code for a predominantly black neighborhood. Prosecutors often rely on unverifiable assertions about a juror's demeanor, saying that they, quote, can't form a rapport, or that the juror does not laugh at jokes or that the juror did not make eye contact. Again, this is entirely subjective and fails to account for any implicit bias on the part of the prosecutor. We see in the cases that prosecutors also rely on reasons based in troubling racial stereotypes. In a South Carolina case, for example, the prosecutor said he struck a black potential juror because he, quote, shucked and jived as he walked. In a Louisiana case, a prosecutor struck a black juror because he said he, quote, looked like a drug dealer. In a New York case from 2012, a prosecutor said that a black woman was struck because she was too, quote, outspoken. This is a frequent problem. This study in California that we referenced earlier showed that prosecutors relied on racial stereotypes about demeanor to justify strikes in more than 40% of the cases. So why do prosecutors continue to engage in this conduct? You know, I think one big reason that we discuss in our report is that there is no accountability and no consequence for a prosecutor who violates the constitutional rights of jurors not to be excluded based on race. Nothing happens to a prosecutor if she is found to have engaged in racially discriminatory jury selection. No disciplinary action is taken. You know, the bar doesn't get involved. In fact, recent studies have failed to identify a single case of a prosecutor being found guilty of an ethical violation or subject to any discipline by the governing bar for violating Batson, be Kentucky or engaging in racially discriminatory jury selection. And in fact, what we see is that prosecutors often get reelected. Doug Evans, who was the prosecutor in the Curtis Flowers case I mentioned earlier out of Mississippi, was re-elected to an eighth terms after having been found guilty of Batson. So in connection with this, I want to return to the Civil Rights Act of 1875, um, which is a possible remedial provision. This law was passed during reconstruction and explicitly prohibits racial discrimination during jury selection, and it penalizes this a violation of the statute with a fine of $5,000, which is equivalent to about $100,000 today. Unlike the rest of the Civil Rights Act, which was struck down by the Supreme Court. This provision was upheld in the case of ex parte Virginia in 1879, and is currently codified at 18 U.S.C. 243. But there has never been a reported criminal prosecution under this act. And as I will discuss in a minute, attempts by excluded jurors to use this provision to hold prosecutors accountable through a civil rights um lawsuit have thus far proven unsuccessful. So we've now talked about prosecutors, but I want to talk a little bit about courts who have also remained largely indifferent to racial bias in jury selection. Courts have an affirmative duty and obligation to enforce the prohibition against racial discrimination in jury selection. But when we surveyed state appellate court opinions across the country, we found that courts are refusing to enforce Batson even with glaring levels of exclusion. In our report, we revealed that the highest courts in 32 states have considered hundreds of illegal race discrimination claims over the last decade, and not one found that a prosecutor violated Batson. For example, in a 2014 Mississippi case, the court acknowledged that the prosecutor struck black jurors at more than twice the rate at which they appeared in the pool, but refused to find discrimination. Even, you know, this is happening even in cases where the evidence shows that the prosecutor treated white and black jurors with similar characteristics differently. And in fact, appellate courts in several states have reversed findings of lower courts, uh, who found that Batson violations have occurred. So where a trial court, for example, would find a Batson violation, the appellate court is then going to reverse that finding. And at the same time, many of these appellate courts have expressed hyper vigilance in upholding what we call reverse Batson challenges, where defense counsel is accused of discriminating against white jurors. And I want to highlight Mississippi here. So. In the Mississippi Supreme Court in 1,995% of the cases that the court has reviewed challenging the removal of black jurors. The Mississippi Supreme Court has found no Batson violation. In contrast, since Batson was decided, the same Mississippi Supreme Court has reviewed 13 reversed Batson challenges, where the defense lawyer is accused of violating the rights of the white jurors and found a violation 11 times. So we see that courts are sort of remaining indifferent to this or even hostile to it. Courts also continue to invoke procedural bars to prevent review of claims of racial bias in jury selection. Some appellate courts refuse to review a claim of racially discriminatory jury selection if there's no objection made at trial. Some states require multiple objections be made or subject race bias claims to more onerous requirements than other claims. And under the Antiterrorism and Effective Death Penalty Act, which is the law governing federal habeas, uh, federal courts will not review claims of racial bias that were not properly raised in state court, and will likely likewise defer to state court rulings unless that decision is seen as unreasonable. So as a result, we have individuals who are executed even in the death penalty context, without ever having their substantial claims of race bias reviewed on the merits. In one example of this that we highlight in our report is Robert Tarver. He's a black man who was sentenced to death in Russell County, Alabama, for the shooting death of a white store owner. Despite significant evidence that Mr. Tarver was not responsible for the shooting, and it was actually his co-defendant who was responsible. So at the time of the trial, Russell County was nearly 40% African American. Mr. Tarver was tried by a jury of 11 white jurors and one black juror, after the Da used 93% of his strikes to remove African American jurors. The assistant Da later admitted to striking jurors on the basis of race and in state post-conviction. The trial court found a Batson violation, but said that no relief was due because the issue had not been properly objected to at trial. And the Federal Court then refused to review the claim because it had not been properly raised in the state courts. Mr. Tarver, who had a very, very credible claim of race bias, was subsequently executed in the electric chair in Alabama. So this leads me to defense lawyers who, under the Batson framework, are largely responsible for policing racially biased strikes. This is because the need to prevent racial bias in jury selection is so important, according to the Supreme Court, that the court has recognized a limited exception to the traditional requirement that litigants represent only their own legal rights and interests and not the rights of others, so it allows the defendant to raise the rights of the jurors, not to be excluded on the basis of race, which means that the defense lawyer has a responsibility for ensuring and policing racially biased strikes. But the defense lawyers in the majority of criminal cases are largely overworked and underfunded, without resources or training to effectively raise and prove a claim of race discrimination. Defense lawyers are often prevented from access to jury information, which the courts in many jurisdictions fail to maintain or refuse to provide lawyers with access to. Um and defense lawyers are mostly white, which makes them less likely to identify and challenge racial bias in the courtroom. At the end of the day, it's not just that the criminal legal system has been undermined or that the trial is unreliable, but race discrimination in jury selection violates the jurors right not to be excluded from jury service on the basis of race. The Supreme Court has recognized that jurors may be the most aggrieved, but jurors frequently have no remedy for challenging race discrimination in jury selection. So I want to go back to the, um, the Civil Rights Act of 1875 here. Because under the current system, prosecutors have absolute immunity for lawsuits seeking money damages over past actions during trial, including race discrimination. And courts have largely denied jurors the right to sue. So I want to give two examples here. One is in 2011, black citizens in southeast Alabama filed a lawsuit under 19 section 1983 of the US code to stop then Da Doug. Alaska. Alaska from engaging in racial discrimination in the exercise of peremptory strikes. This is the same county I mentioned earlier where the African American population is about 27%, and that we saw from 2005 to 2009, the Da had removed nearly 80% of qualified African American jurors in trials where the death penalty was a possible option. Uh, the jurors, people who lived in the county, African American citizens of the county, who were likely to be called for jury service, filed a lawsuit to enjoin Mr. Valeska, the Da, from illegally removing them from juries in the future. The Federal Court accepted the truth of the allegations, but dismissed the lawsuit based on the application of the abstention doctrine, essentially ruling that federal courts should not intervene in state court criminal proceedings. So, you know, that lawsuit tried to use the Civil Rights Act, tried to use federal law to assert the rights of jurors. A similar lawsuit was filed by prospective jurors in Attala County, Mississippi, where Doug Evans, the prosecutor in the Curtis Flowers case, had been repeatedly found to have violated Batson. Again, the federal courts did not dispute the underlying facts or the seriousness of the allegations. And in that case, the district, the federal District Court dismissed the case based on the same doctrine applied in the Alabama case, the abstention doctrine. But the Fifth Circuit actually recently affirmed the dismissal on different grounds that the jurors did not have standing to sue because they failed to show a sufficient threat of constitutional injury. And I want to highlight the dissent in that case because the dissent said, quote, abandoning this type of civil rights suit that historically has allowed excluded jurors to participate in our system of justice, impairs the jury right itself. So what needs. To happen for the final portion of our our. I'd like to discuss recommendations for eliminating racial bias in the jury system. First. Committing to fully representative jury pools to ensure that people of color are fully represented in the source pools from which jurors are selected. The National Center for State Courts recommends that a jury, a master jury list, should include at least 85% of the eligible jury population. So the first thing would be to use multiple source lists that accurately represent the proportion of black people and people of color in the community. So in addition to driver's license lists and state IDs and voter registration lists, um jurisdiction can use things like income tax filings, unemployment insurance lists, public utility records, child support payer or payee records. Uh, North Dakota uses tribal identification records. There are lots of ways to incorporate multiple source lists into this initial process, which will allow for a more full, a more fully representative master jury list. The next thing would be to ensure that the jurors summoned actually appear in court for service. And there's some really straightforward and cost effective measures that states and federal courts can use. First, update the master jury list annually. Um regularly submit names to the United States Postal Service. Change of Address database and November 2022 report by the National Center for State Courts showed that using this change of address database resulted in updating 10% of the addresses for jury source lists in three states. Other options include targeted zip code mailings to send replacement summons to the same zip code, or even the same unit. Another option is to use weighted summons. This would mean that you used geography as a proxy for race or ethnicity. You essentially divide the jury district into smaller geographic units, and then require proportional representation of jurors from each unit or zip code. These are sort of some ideas and things that states and courts have started implementing in order to make, uh, jury pools more representative. The second recommendation that we have is to remove procedural barriers to review of claims of racial bias in jury selection. And I touched upon this earlier. But in state court, the general rule is that a claim involving racial bias will only be reviewed on appeal if there was a contemporaneous objection. So if there's no objection or trial court did not intervene, there's no state appellate court review. Now, some states permit appellate courts to review Batson claims, even if there is no objection, um, or if the claim was first raised in post-conviction. State and federal courts can and should remove barriers to review in both courts and require that claims of racial bias during jury selection be reviewed on the merits, whether or not the claim was properly preserved below. The third recommendation is to create accountability for decision makers who engage in racially discriminatory jury selection. Um, as I just mentioned, even when the court finds that a prosecutor has engaged in discriminatory conduct, the prosecutor rarely suffers any consequence. So states and Congress can and should create a private right of action for illegally excluded jurors to sue. Um, federal courts can also create, you know, they have created procedural barriers to protect prosecutors from federal lawsuits under section 1983 of the US code and shield them from financial liability. But Congress can and should consider reassessing the doctrines of immunity for prosecutors under this section and remove the procedural barriers created by the federal courts. Our third recommendation would be to reform the use of peremptory strikes. Echoing Justice Marshall's concern that the only way to eliminate racial bias in the use of peremptory strikes is to eliminate them entirely. In 2021, Arizona did just that by eliminating peremptory strikes in civil and criminal trials. Other states, including California, Washington, Connecticut, and new Jersey, have adopted procedures specifically designed to prevent prosecutors from avoiding Batson's requirement. So in 2018, Washington adopted Washington's Supreme Court adopted rule 37, which designates a list of presumptively invalid reasons that judges must treat as presumptively invalid because they have historically been associated with discrimination. These reasons include things like prior contact with law enforcement, distrust of law enforcement, living in a high crime neighborhood, not being a native English speaker, a relationship with someone who has been arrested or convicted of crime. The California legislation that was adopted in 2020 likewise delineates presumptively invalid reasons, but expands upon what Washington did by presuming the strike to be invalid if it's based on a jury's demeanor, dress, or appearance. Employment in a field disproportionately occupied by workers of color or friendliness with another juror of shared racial background. The California law also eliminated Batson's first step, and the requirement that the proponent prove intentional discrimination in criminal trials. Connecticut adopted a rule in 2022 that eliminates that likewise eliminated Batson's first step. Um, and instead, the court has to deny the peremptory strike. If an objective observer would believe that the strike was based on race or membership in a protected group. The new Jersey Supreme Court likewise adopted a rule in 2022 which, like Connecticut, eliminates Batson's first step and the requirement that the proponent prove intentional discrimination in civil and criminal trials like Connecticut. You know, the court adopted a requirement that a court deny the peremptory strike if a, quote, reasonably, fully informed person would believe the strike to be based on race or protected status. Um and other states are doing other things as well. The Colorado Supreme Court granted cert recently to address the question of whether the lower court correctly adopted a per se test, meaning that if the prosecutor gives two reasons and one is found to be race based, the Batson challenge must be granted. Our last recommendation is to create a meaningful presumption of discrimination. Ports can and should adopt standards that reflect the challenge of remedying racial bias in jury selection. Um, they can abandon the absolute disparity approach in favor of an analysis that more accurately represents the harm that is done to a defendant's chances of drawing a representative jury. The Iowa Supreme Court has recently adopted a standard deviation calculation to assess race based exclusion from jury pools. Um, and that is whether the representation of black jurors falls more than one standard deviation below the representation of jury eligible black citizens in the community population. Other states are considering similar measures. Judges should be required to intervene even in the absence of an objection, as I mentioned earlier. The courts have an affirmative obligation to ensure that jurors are not excluded on the basis of race, and so courts need to be required to intervene even where defence lawyers and prosecutors are not themselves raising the problem of race based jury selection. And finally, the prosecutor's history of discriminatory conduct should trigger more scrutiny by trial and appellate courts, where you have prosecutors who have engaged in race based jury selection in the past, prosecutors like Doug Evans in Mississippi, where the prosecutor has been bound by a court to violate Batson, or where the courts themselves have seen this history of discriminatory conduct that should trigger more scrutiny by trial and appellate courts. Other state and federal courts have commissioned studies on proposed reforms in the jury selection process, and other reforms have been adopted by states. Um. For example, California has recently adopted the Racial Justice Act, which means that it is illegal for any state actor to obtain a conviction or sentence on the basis of race, including racially discriminatory language and race discrimination in jury selection. Other states are considering similar um reforms, are implementing other reforms in the jury selection process. And I would encourage you to visit our website at npr.org for updates and ongoing developments in the criminal legal system. I appreciate your time today. Thank you again for tuning in to the presentation on confronting racial bias in jury selection.

Presenter(s)

ASJ
Angie Setzer, JD
Senior Attorney
Equal Justice Initiative

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