The Supreme Court has ruled that it is improper to exercise preemptory challenges based on race or gender. It’s not too tough to get around it, a lawyer just needs to come up with a racially neutral rationale for their decision.
FYI, Washington State has a relatively new rule that is stricter. “The purpose of this rule is to eliminate the unfair exclusion of potential jurors based on race or ethnicity.”
as happened here–Blacks dismissed because they were teachers
How exactly do you propose granting this representation? What about a representative who’s merely indifferent? Or where you’re not part of an out-group, just someone who differs in your political opinion? Are you entitled to different representation?
For better or worse, the law defines representation procedurally, not substantively. Impartiality, in this context, refers to the procedure for selecting the jury. We require the venire (jury pool) be made of a “representative cross-section of the community.” This has nothing to do with the resulting racial composition of the empanelled jury; in fact, a racial quota violates the requirement that the jury be selected impartially.
According to the 1880 census, “colored people” constituted 21% of Patrick County, Virginia. That year, Justice Strong wrote that the mere lack of colored jurors did not mean the jury was impartially selected:
The assertions in the petition for removal, that the grand jury by which the petitioners were indicted, as well as the jury summoned to try them, were composed wholly of the white race, and that their race had never been allowed to serve as jurors in the County of Patrick in any case in which a colored man was interested, fall short of showing that any civil right was denied or that there had been any discrimination against the defendants because of their color or race. The facts may have been as stated, and yet the jury which indicted them, and the panel summoned to try them, may have been impartially selected … A mixed jury in a particular case is not essential to the equal protection of the laws …
Virginia v. Rives, 100 U.S. 313, 322-23 (1880); see also Neal v. Delaware, 103 U.S. 370, 394 (1880); Strauder v. West Virginia, 100 U.S. 303, 305 (1880) (reversing conviction where state prohibited defendant’s race from serving as jurors); Martin v. Texas, 200 U. S. 316, 321 (1906) (no right to demand racial representation in jury); Akins v. Texas, 325 U. S. 398, 403 (1945) (upholding conviction where defendant failed to show racial quota in jury selection process); Cassell v. Texas, 339 U. S. 282, 286-87 (1950) (plurality opinion) (reversing conviction where jury selected according to proportional racial quotas); Hernandez v. Texas, 347 U. S. 475, 482 (1954) (holding Fourteenth Amendment right to impartial jury applies to Mexican-Americans and all races, not only Blacks); Batson v. Kentucky, 476 U.S. 79, 85 (1986) (reversing conviction where prosecutor dismissed Black jurors solely on basis of race); J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994) (reversing conviction where prosecutor dismissed male jurors solely on basis of sex).
~Max
Driving the Right out of politics is the only possible way. You can’t make a system work when you put people dedicated to sabotaging it in charge.
Okay, so no constructive answer.
That just reinforces my earlier question- how do we define this or actually evaluate in any sort of empirical way?
Looking at @DavidNRockies examples, is a court obligated to find black jurors if none come up in the normal draft of jurors? In Collin County, being 89% not black, that’s something that could VERY easily come up. I was on a panel there once (for a white defendant), and there were NO black jurors anywhere in the main room, never mind on the panel.
It’s the only constructive answer. You can’t get fair representation by electing people opposed to fair representation. It’s self defeating.
The study cited by DavidNRockies is about jury pools, not seated juries; it does not answer Velocity’s question. I.e., another interpretation is that all-white juries fairly drawn from a mixed-race pool are less likely to convict non-white defendants.
~Max
In England, from whence this stuff comes from, there is no right of peremptory challenge anymore and WYSIWYG. If your lawyer has a challenge, it had better be a Pulitzer Prize winner, like prior acquaintance with one of the parties in the case.
there are people in the U.S. who are advocating for the same. I’m against it, although I can see the problems inherent with preemptory challenges.
What good do preemptory challenges do? If you have a reason to think a particular juror won’t be impartial, why not state that reason and let the judge decide?
Because some of the “reasons” aren’t legally sufficient. In one case we didn’t want engineers. (I don’t recall why). In another, perhaps we didn’t want anyone with medical training. They were legally qualified to serve, but we thought they might substitute their knowledge for what the experts were saying. Sometimes a perspective juror is just weird in some way, and we might not want a wildcard in the jury room. We could probably get by without preemptory challenges, but it would be quite different.
Now, see, I would consider those great examples of why preemptory challenges are a bad thing.
You wouldn’t if you’d seen entire trials thrown out and require retrial because some squirrel sneaked through and decided to Pursue an Agenda. Please have some faith that our jury system wasn’t designed by complete idiots.
I think the idea is that peremptory challenges are made with the intent of creating an impartial jury. So if you have a child abuse case, a victim of child abuse would not be an impartial juror for example and the lawyers would likely strike them. Similarly, in OJ Simpson’s trial, a guy who was a massive Buffalo Bills fan wouldn’t be impartial. Nor would white supremacists.
Many jurors are not going to be fair, but don’t admit it in a way that the judge can excuse them for cause. They will insist in a higher level of proof, or are unduly skeptical of one side or the other. We only get a limited number, (3 in Washington state court) and it’s a good safety valve for the system. As I said, the system would work without it. It would be curious to see how it would be different, if at all.
Is it also good enough for you that Blacks has suffered injustices for hundreds of years, especially in the US south? That they’ve been convicted by all-white juries of crimes they never committed, and that conversely, white hooligans who viciously beat and murdered a young boy named Emmett Till who had done nothing wrong were exonerated by a jury of their peers? And later gleefully admitted their guilt, protected by the double jeopardy provision?
America screwed itself when it started importing African slaves for forced labour. It will be many more generations before that stain on its history starts to fade.
That said, this asshole deserves everything he got. I don’t care if he’s Black or white, I hope he never sees the light of day.
I don’t doubt that that can happen, but I’m not at all confident that lawyers (or anyone else) can reliably identify them ahead of time, and I’m even less confident that lawyers can identify them better than judges can.
I’m not saying that lawyers shouldn’t be able to get jurors stricken. I’m saying that they shouldn’t be able to do it unilaterally and without justification. If the jury pool includes a victim of the kind of crime at trial, or an overt racist, or whatever, the lawyers should be able to point that out to the judge, and ask the judge to strike them. But when lawyers are able to strike potential jurors just because, that makes it too easy for them to use that power in a racist or otherwise unfair way.
I saw lawyers doing this so rarely it doesn’t even merit concern, in my opinion. It’s another thing that comes from too much tee vee courtroom drama: The idea that lawyers are all slimy dogs who don’t take their oaths of office seriously and try to game the system.
In reality, everyone in the courtroom wants a successful trial. And lawyers are often sharper than the judge who is overseeing their case. There’s some truth to the old joke: What do you call a lawyer with an IQ of 85? “Your Honor…”
Both parties should have comfort with the people who are sitting as jurors. That means giving them some measure of control over who is sworn to sit on the panel.
One thing that naturally impedes reckless use of peremptory challenges is, the lawyers never know if the next random prospective juror drawn will be a bigger squirrel than the one they’ve got. As @Procrustus points out, the number of challenges is limited.
The Department of Justice is showing us that actually many of them are. And they tend to work for the government trying to out people in jail.
Personally, I don’t think prosecutors should ever be permitted to exercise a peremptory challenge. The defense? Sure? Parties to a civil case? Meh. But prosecutors for the state? Hell no. If that results in fewer convictions and more mistrials/hung juries/outright acquittals… I rest my case.