Tuesday, December 19, 2017

Racism and jury selection remains a problem in American courts

Jeffrey Bellin a professor at William & Mary Law School writes in the USA Today, it's illegal to eliminate jurors solely on the basis of race.
But a recent appellate court decision shows how easy it is to circumvent the rule meant to ensure a fair and balanced jury, which is a cornerstone of the American justice system. 
The Connecticut Supreme Court ruling in Connecticut v. Holmes —  the appeal of a Connecticut murder case that ultimately landed a black man in prison after a potential African-American juror was eliminated — should alarm anyone who cares about democracy.
During jury selection in the original case, "W.T.," who was African American and being interviewed by both the prosecution and the defense as a potential juror, expressed concerns about law enforcement in answer to questions posed by the prosecutor.  
"Some things are not fair," W.T. said. He also stated that “sometimes . . . when I see the police in back of me, I wonder, you know, if I’m going to be stopped.”
But W.T. also emphasized that he would follow the law and "judge (the case) by the facts." 
Still, the prosecutor eliminated W.T. The state explained that the elimination was "race-neutral" and expressed concern about the fact that W.T.'s family members "have been convicted and have served time. ... If we had a Caucasian who was in the same situation," they would also have eliminated him from the jury, the state said.  
But I suspect few people who read W.T.'s full statement would have agreed with the prosecutor's decision. W.T. comes across as a thoughtful, candid person, the kind of person we want on juries. 
As Connecticut appellate Judge Douglas Lavine noted in his concurring opinion, the views W.T. expressed were “by no means radical or unreasonable. On the contrary, they appear to be logical, fact-based, and understandable.” 
But attorneys have a limited number of chances (that number varies by state) to remove potential jurors, for any reason at all, and with no explanation given. And until 1986, those reasons could have included race. But the Batson rule, named after the Supreme Court decision, was intended to change all of that. 
Defendants can use the rule to challenge the elimination of a juror if they think the prosecutor's choice was based on race. And in this case, the defendant did.
For the Batson challenge to have worked, the defendant had to show that the prosecutor made the decision based primarily on race and with the intention to discriminate — something that's difficult to prove when prosecutors can easily use reasons related to race, that are deemed "race-neutral," to eliminate jurors. 
The state claiming that a Caucasian juror would have been eliminated for expressing the same concerns about police sounds good but likely wouldn't happen. That level of police fear and discrimination is tied much more closely to the black experience in America. 
The trial judge in the original case upheld W.T.'s elimination, stating that the prosecutor's decision was "race-neutral."  
The appellate court also upheld the ruling. 
The Batson challenge may have changed procedures, but September's Connecticut v. Holmes appellate ruling shows that the results are still the same — prosecutors who want to eliminate black jurors can do so in a way that's frequently incontestable.  
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