There is ample precedent for analyzing the racial and ethnic - and even sex - mix of a jury. The Supremes, in Batson v. Kentucky, said that a prosecutor could not use preemptory challenges to remove members of a cognizeable racial class from a jury when the accused was a member of that class. Progeny of that decision have expanded the rule to drop the requirement that the accused be of the same class of persons removed from the jury, and expanded it to include sex as well as race as an impermissible reason for a preemptory strike.
However, in practice, this is poorly enforced. The procedure mandated by Batson is for the side making the challenge – that is, the side opposing the strike – to make a prima facie case of racial motives in the strikes. If the judge finds such a case made, the burden shifts to the side making the strike to offer up a race-neutral explanation for the removal. The judge then decides the credibility of the explanation, and either permits or disallows the strike.
An appeals court will review this for abuse of discretion. That’s a very forgiving standard, and as long as the judge doesn’t refuse to hear the challenge, or indicate he accepts “mental telepathy” as the race-neutral reason for the strike, whatever he decides will likely pass appellate muster.
It also means that prosecutors – because, let’s face it: prosecutors are, nine times out of ten, the ones defending Batson challenges – are almost encouraged to come up with BS reasons for their strikes. “I struck him because he’s too old/too young/unemployed/employed as a ______/dressed too shabbily/dressed too expensively/wouldn’t answer my questions/spoke up too much/is married/isn’t married…” The list can be endless, and the system encourages lying… er, creative explanations.
In short, there is case law for including a diverse and mixed jury.
- Rick