Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
America is not yet post-racial, and the Nazis marching this week in Charlottesville, Virginia should be a reminder of that. Continuing tensions on race are played out in courtrooms as well. The as-yet unresolved issues of racial bias in jury selection provide one example. Race-based removals impact the criminal sphere more than civil sphere, and also matter more in some cases than others. Still the continued presence of strikes that seem to be based on race has led to some calls to eliminate the peremptory challenge altogether. For example, in a case earlier this year before the Washington State Supreme Court (City of Seattle v. Erickson), two judges joined in calling for “the complete abolishment of peremptory challenges” as the only sure-fire way to eliminate the constitutional problem of jurors struck due to their race.
But perhaps it isn’t necessary to throw that peremptories baby out with the racial-strike bathwater. A recent paper proposes one alternative that has worked in other contexts: open records that, the authors hope, will lead to a little more disinfecting sunshine on the exercise of strikes. In the article (Wright, Chavis, Parks, 2017), Ronald Wright, Kami Chavis and Gregory Scott Parks of Wake Forest University School of Law write on their newly-formed “Jury Sunshine Project,” which started at the state level, assembling records from more than 100 North Carolina courthouses on 1,306 felony trials involving approximately 30,000 removed jurors in 2011. Prosecutors in the state, they found, removed nonwhite jurors about twice as often as white jurors, and defense attorneys excluded white jurors more than twice as often as nonwhite jurors. It varied widely by city as well, with prosecutors in Charlotte, Winston-Salem, and Durham accepting significantly fewer nonwhite jurors than prosecutors in the rest of the state. In this post, I will write a bit on the project and what it potentially offers as a way to retain peremptory strikes while addressing their abuses.
The exigence for the project is the recognition that our justice system needs both the reality and the perception of broad social participation. A justice system, and a jury system in particular, depends on public confidence. When jurors are purposely excluded based on race, or excluded based on factors that strongly correlate with race, that confidence is jeopardized.
One challenge, though, is that beyond the individual case, it is difficult to check on how we are doing. As the authors note, the actual data on who is called, who shows, and who is removed is scattered across thousands of clerks offices, and that makes it “nigh impossible to view jury selection at the overall system level.” The lack of a central data collection mechanism means that the media, the public, and the courts themselves simply focus on the choices made in each individual case, and not the aggregate effect of those choices on the broad-based representativeness of juries.
When the focus is just on an individual lawyer’s reason for striking an individual member of the venire, many have argued it is all too easy to come up with a race-neutral reason. As I’ve written, not all reasons are equal, and courts and parties should be able to recognize the grounded reasons over the pretexts, but the current reality is that it is still relatively rare for the striking party to lose a Batson challenge, and even more rare for a case to be overturned based on race-based jury selection. The bottom line is that the focus on what a single attorney was thinking in striking a single juror serves as a remedy in only the most extreme cases and does not address a systemwide bias.
The solution according to the authors is to shine a light on the choices made. “As citizens,” they write, “we believe that the composition of juries in criminal cases deserves political debate outside the courtroom. Voters should use the jury selection habits of judges and prosecutors when deciding whether to re-elect the incumbents to those offices.” Instead of focusing on each choice with each juror, the data allows for an aggregate view of the overall effect, making it possible to hold prosecutors, and potentially judges as well, accountable to the public.
By modifying federal and state statutes and local rules of court in order to require the collection, retention, and aggregation of data on who is called and who is excused, the authors believe that the resulting patterns in the data will open the system up to more informed and more effective debate on jury selection.
The Reasons to Believe It Might Work:
The authors believe that the sunshine of aggregate data on selection choices can lead to better choices because prosecutors will be more likely to police themselves. Beyond the individual case, there will be concern for the public messages being sent and that should lead to self-policing. If it doesn’t, then public pressure at the voting both may target prosecutors who persist in a racially biased use of strikes.
And there are a few good parallel situations showing that this may work. For example, following concern over racially-biased traffic stops, in effect, for “driving while black,” a number of states and cities changed laws and policies and made it easier for journalists, academics, and the public to see data on traffic stops by race. As the article notes, 18 states now have mandatory data collection on race for all police stops and searches. Similar ‘transparency’ strategies are being tried on issues regarding treatment of prisoners as well as in cases of officer-involved shootings. The resulting sunshine cannot be expected to change the situation overnight. But having the data is certainly better than leaving it cloaked and left to the realm of assumptions. “Transparency about the rate at which prosecutors use their peremptory strikes,” the authors conclude, “should be tracked and made publicly available for review and analysis.”
In the individual case, litigators should continue to focus on striking individuals based on those factors, typically attitudes and experiences that would bias a given juror in a given case. But at the aggregate level, society has an interest in seeing the effects of the use of these strikes. And if that sunshine helps to allow the continued use of peremptory challenges, with public pressure where needed, then litigators have an interest as well.
Other Posts on Race and Jury Selection:
Wright, R. F., Chavis, K., & Parks, G. S. (2017). The Jury Sunshine Project: Jury Selection Data as a Political Issue. Available at SSRN: https://ssrn.com/abstract=2994288
Note, the article includes a note that it is in draft status and a request not to cite without permission from the authors, and permission was received to discuss and quote the article in this post.
Photo credit: 123rf.com, used under license.