The state of North Carolina attracted national attention in 2009 when the then General Assembly passed the North Carolina Racial Justice Act (RJA). The law created a state claim for relief for defendants currently on death row who can show that race was a significant factor in the exercise of peremptory challenges in their cases. The intention of the law was to correct the discriminatory results arising from racial bias in jury selection.
But the law is focused on the compensation and correction of inappropriate racial bias rather than a prevention of such a behavior. It therefore has limited effect on correcting the racial factor in selecting jurors.
In an op-ed in the New York Times last week, Larry D. Thompson pointed out that prosecutors routinely ignore the Supreme Court’s 1986 decision in the landmark ruling of Batson v. Kentucky. Prosecutors exclude potential jurors deliberately by raising concerns of marital status, manner of dress, last names and other non-racial reasons.
One Monday, the Supreme Court heard arguments in Foster v. Chatman, a case challenging the discriminatory practice in jury selection. A ruling decision will be made in June of 2016.
But even if this case were to be in favor of Mr. Foster, a black man who was accused of murdering a white woman nearly 30 years ago, how could that change the practice of racial bias in jury selection? According to a journal article written by Catherine Grosso and Barbara O’Brien of Michigan State University, prosecutors in North Carolina struck eligible black venire members at more than twice the rate they struck eligible venire members who were not black. Yet, no one has been able to do anything about this.
Statistical inference of other studies indicated similar results to Grosso and O’Brien’s 2012 paper. Even if there exists such biased practices, prosecutors’ intentions are not observable directly. By law, they and the attorneys have the proper right to question and strike potential jurors with a series of legitimate processes. In addition, the jury selection process is not transparent enough to meet the need of keeping the jurors in a closed environment. Media outlets are not able to check if practices of the process are appropriate immediately.
This can be narrowed down to a problem where there is no check and balance to prosecutors who are given absolute power to select jurors. Though an external source of checks and balances seem unlikely, potential solutions could be found by carefully examining the jury selection process itself.
Prosecutors, attorneys and judges are the main participants of the jury selection process. When a case is called for trial, a randomly-selected panel of potential jurors is seated in the courtroom. A trial judge initiates the process by asking prospective jurors questions to ensure they are legally qualified. Next, lawyers for each side question the potential jurors about their biases and backgrounds. They can remove potential jurors whose backgrounds reflect biases. The stage, known as “striking the jury,” is the one where prosecutors apply non-racial factors to remove potential black jurors. In this stage, prosecutors and defense take turns arguing their challenges for cause. If the judge grants a challenge, the juror will be removed from the jury panel.
If prosecutors have racial bias, they have strong incentive to remove potential black jurors in order to get the jury to conclude as soon as possible. But the defense, on the other hand, does not have such incentive. Lawyers are not able to make the case to keep a black juror to stay. If lawyers can counter defense prosecutors’ strikes and keep the qualified jurors, this can reduce the probability of removing eligible and proper black jurors. So, modifying the jury selection process slightly in this way might effectively reduce racial bias in jury selection.
The roles of prosecutors, lawyers and judges are more like filters that separate out those potential jurors whom they think, based on their professional practice, would affect the decision — with personal bias, of course. But this filter cannot be used as a visible filter of color of skin; otherwise, justice will continue to be undermined.
