The issue of black participation on trial juries is one with multiple layers of complexity. As a civil rights trial attorney and former criminal prosecutor, I am always disappointed to see the myriad ways in which many in our community attempt to avoid their civic duty of participating in the criminal-justice system as jurors. Even more frustrating are the obstacles that often prevent those of us who are willing to serve from ultimately being selected as fact finders at a trial.
This Monday the Supreme Court will hear oral arguments in Foster v. Chatman, a case that examines some of the ways in which lawyers exclude jurors, to determine whether using pre-emptory challenges to strike jurors along racial lines violates constitutional rights.
Foster is a 1986 criminal case out of Georgia in which the petitioner, Timothy Foster, was convicted of breaking into the home of an elderly woman and sexually assaulting her. At trial, the prosecution’s attorneys removed all the potential black jurors either by challenges for cause or other pre-emptory challenges. When the records from the trial were released 20 years later, pursuant to Georgia’s Open Records Act, Foster’s lawyers discovered that notes from the prosecution suggested that it had identified potential jurors who were black and predetermined that those jurors should not be selected for the trial. What’s worse is that the reasons it offered for the challenges were inconsistent and give rise to further evidence of pretext.
The same year Foster was tried, the Supreme Court ruled in Batson v. Kentucky that it was unlawful to exclude jurors on the basis of race. The Batson rule is sometimes invoked by lawyers who are concerned that their client may not receive the constitutional guarantee of a trial by their peers. However, it is not uncommon for a lawyer to reserve issuing a challenge under Batson because in addition to the motivations behind a pre-emptory strike being difficult to establish, there is also the apprehension of the unknown.
Jury psychology is a very complex thing: In a matter of minutes, attorneys are required to make snap judgments about a group of 8-12 strangers based on little more than the potential jurors’ responses to what are often vague and nonprobing questions. Raising a Batson challenge runs the risk of getting a new set of jurors who may be even less ideal than the first. Quite simply, the mindset is often to roll the dice with the folks who have been chosen, remaining consistent with the age-old adage, “The devil you [sorta kinda] know … ”
However, Foster highlights the conundrum of what it is to be a black person who chooses to voluntarily engage his civic duty within the criminal-justice system. On one hand, many of us are distrustful of police and acutely aware of how racial bias often plays a role in convicting blacks and Latinos at higher rates than those of white criminal defendants. Couple that with the increased conversation around the privatized prison industry, and many black jurors are less likely to convict because of their feelings that the entire process is inherently slanted against defendants of color.
Prosecutors certainly know this and will undoubtedly make decisions on which potential jurors to strike and which to keep based on the particular case. For example, if it is a gun-possession case involving primarily police witnesses with a black defendant, many prosecutors are less likely to select black jurors because the prosecutors are anticipating that those jurors may worry that the evidence was planted and the testimony offered by police will not be credible.
Even as attorneys are allowed to make strategic decisions during jury selection, to the extent possible, the system must be rid of any room for racial bias in favor of or against defendants. The wide discretion lawyers are given to strike jurors through pre-emptory challenges needs to be bridled in such a way that when a judge asks for explanations, the challenges are not summarily upheld despite specious reasoning that lack substance to support them. It does not engender any greater sense of trust in the criminal-justice system when qualified jurors are stereotyped and excluded from participation based on their race.
Our community has seen more than its fair share of miscarried justice for decades. Failing to show up and participate on juries is already enough of a hurdle. To be frank, we don’t need any more obstacles in our way. As the court considers Foster, there is a need not only to balance considerations of legality but also to include the reality of how racial biases play a role in the mindsets of jurors and attorneys alike.
If justice is truly blind, then attorneys need to be just as blind in their selection of the fact finders who decide the fates of cases at trial.
Charles F. Coleman Jr. is a civil rights trial attorney, legal analyst and former Brooklyn, N.Y., prosecutor. He is also a professor of criminal justice at Berkeley College in New York. Follow him on Twitter.