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States consider the problem of implicit race bias in jury selection

On Behalf of | May 15, 2020 | Criminal Defense |

For a jury to be of “your peers,” shouldn’t it more or less reflect the ethic makeup of the community you live in?

The U.S. Supreme Court case of Swain v. Alabama held that prosecutors cannot intentionally exclude African-Americans from juries without violating the Equal Protection Clause. In Batson v. Kentucky, it went further and said that prosecutors could not use preemptory strikes (a thumbs down to a juror without cause) in order to intentionally exclude African-American jurors.

Since Batson, it has become common for the defense to challenge the prosecution’s use of preemptory strikes if they appear to be made on the basis of race. However, these “Batson challenges” are not always successful. Many African-American defendants are still convicted by all-white juries here in Iowa and in other states.

This is because, under Batson, the prosecution doesn’t have to prove that they were not acting on the basis of race. Instead, they only need to point to any race-neutral reason for the preemptory strike. Over time, the courts have watered this down further so that the prosecution doesn’t even have to present a race-neutral reason that makes sense; anything will do.

This can be pernicious. For example, in one case in Georgia, all the Black jurors were excluded. One was “too close in age” to the defendant. (She was 34; he was 19). Another juror had a son who was convicted of “basically the same thing.” (It was stealing hubcaps; the case was murder.) Yet judges allowed those pretexts to stand until the U.S. Supreme Court reversed them.

But many times, prosecutors vigorously deny any intention to be racist. And, there is significant evidence to indicate that many times the prosecutor is not intentionally being racist. Instead, the problem may be implicit bias against African-Americans.

Several states are currently considering how to reduce the impact of implicit bias on jury selection. Currently, the Supreme Court of North Carolina has a case before it where implicit bias appears to have affected the jury selection process.

A 2012 study of North Carolina death penalty cases found that African-Americans were excluded from juries at greater than twice the rate of others.

The states of Washington, Connecticut and California are also working to address the issue. All three have found that Batson fails to sufficiently protect the Equal Protection rights of African-Americans and added new rules to confront situations where the prosecution’s race-neutral reason is not convincing.

Last year, the Iowa Supreme Court ruled that defendants can bring in evidence of systemic exclusion of certain jurors in order to bring a Batson challenge.

Is that enough to make the Batson challenge effective?



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