a bird and a bottle


Juries and Dodos (the bird)
June 4, 2007, 10:39 pm
Filed under: civil rights, criminal justice, law, news

Some days, I think that the jury system should go the way of the dodo. As in, go away. Go extinct. Die out. As it has in the UK and other parts of the world. Juries – if they are fair and reasoned – could be a good thing and a check to the power of a single judge. But as they operate today they are often neither fair nor reasoned.

Today, for example, there were two articles in the NY Times about how far the jury system has strayed from its ideal as a deliberative body that metes out real justice — not racially biased (or otherwise biased) “justice.” In the first article, the times reported on today’s Supreme Court decision that makes it much easier for prosecutors to strike any juror who is not gung ho in favor of capital punishment from a death penalty jury. The Supreme Court, in (yet another) 5-4 decision penned by swing vote Justice Kennedy, overturned notorious conservative judge Alex Kozinski’s opinion at the appellate court level. This Court is not a moderate one. Not on abortion rights. And not, it turns out, on issues of criminal justice and the basic fairness that is necessary to lend credibility to the American criminal justice system.

The second Times article — a column by Adam Liptak — points to a fatal flaw in today’s jury sytem. A flaw that today’s Supreme Court decision will only exacerbate. In his column, Liptak, who is himself a trained lawyer, discusses the practice of peremptory strikes. During the process of jury selection, the prosecutor and defense attorney each have a set number of peremptory strikes; that is, they can cut a certain number of potential jurors for no cause and without the acquiescence of the adversary. Legitimate reasons to do this might include the belief that a juror will not be fair to the state or to the defendant. The most obvious illegitimate reason to use a peremptory strike is racism. but that’s of course, exactly when peremptory strikes are often used and when they do the most to undermine the fairness of the trial process. Liptak provides a case in point:

Allen Snyder, a black man, is on death row in Louisiana. An all-white jury in Jefferson Parish, in the New Orleans suburbs, sentenced him to death in 1996 for the fatal stabbing of a man his wife was seeing.

It took some work to get an all-white jury in a parish that is almost one-quarter black, but the prosecutors were up to the task. They used peremptory strikes — ones not requiring a reason — to remove all five eligible potential jurors who were black. (Four more blacks were removed for cause, all at the request of the prosecution.)

The purge had a purpose, according to a dissenting justice on the Louisiana Supreme Court, who called for a new trial.

“The prosecutor’s intention to utilize racial bias became crystal clear when he commented during closing argument in the penalty phase that O. J. Simpson ‘got away with it’ in the California verdict that had been rendered shortly before this trial,” the justice, Harry T. Lemmon, wrote.

Peremptory challenges are at odds with the goal of driving racial bias (and other biases) as far away as possible from the criminal justice system. Yet their use in racist ways continue. Liptak has more:

According to a 2003 report of the Louisiana Crisis Assistance Center, which studied 390 felony jury trials in the parish from 1994 to 2002, the district attorney’s office used peremptory strikes to remove eligible black jurors three times as often as white ones.

In the two decades since Batson [the Supreme Court case supposedly ending exclusion of jurors based on race], there have been 20 murder trials in Jefferson Parish that ended in death sentences. Information about the race of the jurors is available in 18 of them.

Because the parish is 23 percent black, according to the 2000 census, you might expect to see about 3 black jurors on each 12-member panel. But of the 18 juries, 10 had no black members. Seven had one. One had two. None had three.

So today’s news and analysis provided a one-two punch that might prove to be a K.O. Now prosecutors have much more leeway to strike jurors they don’t like without using their peremptories. And not only that, but they can continue to use their peremptory strikes in a racist fashion with impunity. And the mass incarceration of black men and women marches on.

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1 Comment so far
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These numbers are bone chilling (even if ultimately not surprising). I fear that such not-so-subtle-but-somehow-as-yet-unprosecuted racism exists at every level of the system: from roundups, to bookings, to witnesses, to jury selection, etc. etc. Among my greatest fears is that systematic racism (as in the case of jury selection) is only one type of racism at play; and that the others are so ingrained in the common mindset that they are harder to root out as intentionally racist.

Comment by professorplum




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