Jim Crow in the Jury Box

News that blacks are systematically excluded from juries in the South signals the need for a full investigation by federal authorities.

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For many Americans, a notice to appear for jury service is an annoyance. Being selected for a jury can mean days off work with only a tiny stipend, listening to the details of lurid criminal activity or the mind-numbing medical testimony in a personal injury case. Many people selected for jury service ask to be excused. Lawyers joke among themselves about the variety of creative excuses offered by potential jurors--from ''my daughter's having a baby'' to that mysterious but unverifiable ''business trip'' that would interfere with full participation. But according to a report released earlier this week, one segment of the population need not worry about the inconvenience of serving on a jury. In some parts of the country, they won't be selected anyway.

According to a comprehensive report released by Equal Justice Initiative, the Alabama-based criminal civil rights organization, African Americans are consistently excluded from jury service in jurisdictions throughout the South. The numbers are staggering in some southern counties. For example, according to the report, between 2005 and 2009, 80 percent of eligible African Americans were removed from jury service in Houston County, Alab., where the population is 27 percent African-American.

The culprits here are prosecutors, and their use of peremptory challenges, which allow them to remove a certain number potential jurors for any reason at all. In too many instances, prosecutors use peremptory strikes to target African Americans, especially in homicide cases involving black defendants. In one judicial circuit in Georgia, prosecutors used 83 percent of their peremptory strikes to remove African Americans from juries. The figures are similar in Dallas County, Alab., where prosecutors used 79 percent of their peremptory challenges to exclude black potential jurors.  Prosecutors may give the illusion of racial inclusion by allowing one or two black jurors to serve. But as the EJI report points out, in jurisdictions like Louisiana, this is still tantamount to preserving all-white juries because Louisiana allows convictions by a less than unanimous jury verdict. A criminal defendant can be convicted if 10 of 12 jurors vote to convict. As a result, although Jefferson Parish, La., is 23 percent black, ''there is no effective black representation on the jury'' in 80 percent of the parish's criminal trials.

Judges who oversee jury selection are also part of the problem. Using peremptory challenges to target black jurors was outlawed by the Supreme Court in 2006 in Batson v. Kentucky. But when defense attorneys challenge prosecutor's racially disparate juror strikes, the likelihood that they'll prevail is slim. Instead, trial judges often accept the ''race-neutral'' reasons proffered by prosecutors.  The EJI report documents prosecutors excluding a black man in Mississippi because he ''looked hostile,'' and an African-American engineer ''because she was 'inattentive' and dyed her hair.'' As recently as 2007, the Mississippi Supreme Court acknowledged the ongoing problem with ''racially motivated jury selection'' in state courts.

Racial stereotyping figures prominently in the removal of African Americans from jury service. In South Carolina, a black woman was struck from the jury pool because, the prosecutor argued, she was ''somewhat aged.'' The judge agreed that that the 43-year-old potential juror was ''sluggish.'' In a stunning and flagrant example, a district attorney explained that he removed so many blacks from serving on a jury in a capital case involving a black defendant, because he believed that many of the black potential jurors were of ''low intelligence.'' After multiple appeals, the black defendant was granted a new trial--more than 20 years after he was first convicted by an all-white jury.

 
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