I read with interest a recent opinion piece in the New York Times called, “Yes, Jury Selection Is As Racist As You Think. Now We Have Proof,” by Professor Ronald Wright of Wake Forest University Law School. The premise of the article is that African-Americans are removed from criminal jury panels at a greater rate than whites because they are more often the subject of “strikes,” also known as “peremptory challenges. These allow prosecutors and defense lawyers to “strike” potential jurors from being on the final jury for any reason except for race, gender, and other Constitutionally-protected classes.
According to a study in which the author participated, “prosecutors remove about 20 percent of African-Americans available in the jury pool, compared with about 10 percent of whites. Defense attorneys, seemingly in response, remove more of the white jurors (22 percent) than black jurors (10 percent) left in the post-judge-and-prosecutor pool.” The author suggests that the reason is because prosecutors believe that African-Americans are less likely to convict someone than a white juror, and defense lawyers feel the opposite way. The author implies that this is purely based on racial stereotypes and that prosecutors strike people because of their race.
Although it is reasonable to suspect that some degree of latent racial stereotyping influences some prosecutors, as a criminal defense lawyer and former prosecutor, I believe that it is far less prevalent than the author claims. I believe that a far more important reason for the disparity is the actual attitudes of individual potential jurors toward law enforcement.
Ever since the Supreme Court’s landmark 1986 decision in Batson v. Kentucky, it has been illegal to use strikes to exclude potential jurors based on race. If one side believes that the other side is striking potential jurors based on race, that side can make a “Batson challenge,” in which the trial judge must determine whether the allegation is correct. If the accused side has struck a disproportionate number of jurors of one race, that side must justify each strike of persons of that race with a “race-neutral” reason. Courts have become more and more attuned to sham justifications. Prosecutors are now trained not to violate the Batson decision. If a prosecutor is found by a judge to have violated Batson, especially after trying to mislead the judge about it, that prosecutor could lose their job. The Batson ruling does not mean that the use of strikes to eliminate potential jurors based on race never happens, but it happens far less often than it did before the decision.
So, what could explain the racial disparity in the use of strikes by prosecutors and defense lawyers? I believe that, more than anything else, it has to do with attitudes toward law enforcement.
The article contains little discussion of how jury selection actually works. The reader could get the impression that lawyers just look at a person’s race and strike the person without knowing anything else about them. But that is not it works. Before making their strikes, the lawyers often have quite a bit of knowledge about each potential juror. Many courts have potential jurors fill out questionnaires before jury selection even begins. Those questionnaire answers are given to the lawyers, and they usually provide information about the person’s political leanings, feelings about the police and crime, education level, and a variety of other information that may be relevant to their evaluation of their attitudes and biases. Then, in most jurisdictions, the lawyers are allowed to ask questions of all of the potential jurors to further discover their potential biases. The information that lawyers get from these processes is far more valuable and important for deciding whether to use a strike on a potential juror than race.
In almost every criminal case, the prosecutors will want to identify potential jurors who are biased against the police or the criminal justice system in general. In most state-court criminal cases, the local police handled the investigation, and one or more police officers will usually testify for the prosecution. Someone who does not trust the police or who is biased against law enforcement is someone who the prosecution will want to strike, regardless of their race. Therefore, through questionnaire answers and questions they ask potential jurors, prosecutors will try to identify those people and strike them.
It is no secret that, in this country, African-Americans are significantly more likely than other racial groups to have negative feelings about law enforcement, and that gap is widening. See, e.g., “Racial Divide in Attitudes Toward the Police,” https://opportunityagenda.org/explore/resources-publications/new-sensibility/part-iv (analyzing Gallup Poll data). It is not true that all African-Americans have negative attitudes about the police. In my experience, many believe in law enforcement very strongly. Likewise, many whites have had very negative experiences with law enforcement and have a bias against the police. Therefore, I believe that the reason prosecutors strike African-American jurors more frequently is that prosecutors are striking potential jurors who they have identified as having unfavorable views about law enforcement, and potential jurors with those views are more likely to be African-American than white.
I am not arguing that it is wrong or right to have negative views about the police. But since a prosecutor represents the law enforcement point of view and will usually have police officer witnesses, a prosecutor should, if they can, strike potential jurors who have biases against law enforcement, regardless of race. Likewise, a criminal defense lawyer should strike potential jurors who have biases against those accused of crimes or in favor of law enforcement, if they can, even if a higher percentage of those jurors are white.
As a criminal defense lawyer, I do not even consider a person’s race, because it is such a poor predictor of their attitudes. Instead, I usually try to use my strikes on people who have been, or who are close to, victims of similar crimes, because they are likely to identify with the alleged victim and to believe that the accused is guilty. I also try to strike people who work in law enforcement or those with spouses in law enforcement, for obvious reasons. I also try to eliminate people who have all of the following three characteristics: politically conservative, close-minded, and unable or unwilling to understand abstract concepts like “reasonable doubt.” In many criminal cases, there is evidence that the defendant is guilty, but the evidence may not be so definitive that it proves guilt beyond a reasonable doubt. When your defense is that there is not enough evidence, you want jurors who can keep an open mind and who can understand why, even if they think the accused is “probably” guilty, they should still vote “not guilty” if the evidence does not prove guilt beyond a reasonable doubt. In my experience, people with the three characteristics above usually cannot or will not do that, and they often have feelings like, “Well, even if he didn’t do this, he probably did something else, so it is OK to vote for a conviction.” They also tend to have less ability to put themselves in the shoes of other people who are not like them.
Jury selection is often the most important part of a criminal trial. Each case is different, and a good criminal defense lawyer has to be able to adjust their jury selection strategy to fit the needs of the case. In my experience as a defense attorney, race is not a good indicator of an individual’s attitudes and biases. The jury selection process gives lawyers much better and more specific information about the attitudes and biases of individual potential jurors. This juror-specific information is far more likely to help weed out unfavorable potential jurors.
Federal Criminal Defense Attorney John Helms