By Linh Nguyen
Decades of studies show that racial discrimination during jury selection is very much present on both the prosecution and defense sides, which can harm the defendant and the excluded juror, and undermines the integrity of the criminal justice system, an amicus brief explains.
In the 1986 ruling of “Batson v. Kentucky,” the U.S. Supreme Court ruled that prosecutors may not exclude potential jurors based solely on their race. Despite the ruling, race discrimination persists in jury selection, as stated in a 2015 amicus brief for Foster v. Warden to the Supreme Court of Georgia.
Numerous studies find that prosecutors use peremptory strikes to remove Black jurors at significantly higher rates than white jurors. Though it is unconstitutional, many prosecutors find ways around the so-called “Batson ruling” to make racially-determined strikes under the guise of “race-neutral” justifications.
In fact, some prosecutors have even provided trainings that encourage racial discrimination and explain how to conceal improper motivation from the courts.
For example, in 1986, Jack McMahon, an assistant district attorney in Philadelphia, created a training film teaching prosecutors how to exclude young Black people from juries. 
In this video, McMahon instructed, “Blacks from the low-income areas are less likely to convict,” “you don’t want those people on your jury,” “it may appear as if you’re being racist, but again, you’re just being realistic,” “young Black women are very bad” because “they’re downtrodden in two respects: they are women and they’re Black” and “they somehow want to take it out on somebody and you don’t want it to be you.”
In another example, in 1995, the North Carolina Conference of District Attorneys presented a statewide training course that provided a list of justifications for prosecutors to rely on when striking Black jurors. The 10 kinds of “justifications” that a prosecutor might offer in response to a Batson challenge include age, attitude, body language and juror response.
The amicus brief argued that “relying on these kinds of lists, some prosecutors have entered into the habit of offering a smorgasbord of justifications when their strikes are challenged, rather than pointing to the one or two reasons that actually motivated their conduct — be race-based, or not.”
In 2012, a North Carolina state court found that state prosecutors struck over half of eligible Black jury members, compared to over a quarter of all other eligible jury members, meaning that Black jurors were twice as likely than white jurors to be removed by the prosecution.
In cases where the death penalty was imposed, from 2005 to 2009, in Houston County, Alabama, state prosecutors used peremptory strikes to remove 80 percent of Black people qualified to serve on juries. Half of the juries surveyed were all-white. The rest had only a single Black member, even though Houston County is 27 percent Black.
In Broadnax v. Davis, a 2009 Dallas County capital case, the state prosecutors attempted to strike every prospective person of color from the prospective pool (there was one Latinx person and seven Black people).
When the prosecutor struck the last remaining Black prospective juror, the trial judge intervened, stating, “I’m going to grant the Batson challenge and I’m going to do so because of the fact that there are no African-American jurors on this jury and there was a disproportionate number of African-Americans who were struck.”
James Broadnax, the Black defendant, was given a jury of 11 white jurors and one Black juror.
After conviction, Broadnax went to the U.S. District Court for the Northern District of Texas to review the case. After the District Court refused, he went to the Fifth Circuit Court of Appeals, where they granted review of the prosecution’s alleged racial discrimination in jury seating.
In the Curtis Flowers case, Flowers was tried six times for a quadruple murder. When Flowers’ case made it to the Supreme Court, Justice Brett Kavanaugh wrote an opinion denouncing the unconstitutional practices the Mississippi prosecutor relied on.
In an opinion, Kavanaugh wrote that District Attorney Doug Evans’ goal was to have an “all-white jury” to decide the fate of an African-American man, as he waged a “relentless, determined effort to rid the jury of Black individuals.”
Kavanaugh noticed that Evans removed 41 of the 42 prospective Black jurors over the six trials.
However, defendants also use peremptory strikes to remove jurors on the basis of their race. While prosecutors tend to remove Black jurors, defendants tend to remove white jurors at a disproportionate rate.
This was discovered in a study of strike decisions over a 17-year period in 317 Philadelphia County capital murder trials. Prosecutors struck on 51 percent of Black jurors compared to 26 percent of non-Black jurors. Conversely, the defense counsel struck 26 percent of Black jurors compared to 54 percent of non-Black jurors.
“This kind of discriminatory conduct cannot be condoned,” the amicus brief said. “This Court has long recognized that race discrimination in jury selection harms not only the defendant on trial but also the excluded juror — indeed, that it denigrates whole classes of persons and undermines the integrity of our system of justice.”
Problems also arise even before jury selection, when prospective jurors are selected for jury duty.
Some courthouses contract to private companies that select potential jurors for jury duty. However, some of those companies have statistically incorrect ways of selecting jury pools in ways that misrepresent a community or county.
One company excluded a zip code in which 90 percent of African Americans live. Another company randomly selected potential jurors from an alphabetized list of townships until they reached a pool of 10,000 people. This excluded a township with a 75 percent African American population.
Satirical news anchor John Oliver, who did a segment on juries, suggested that broadening jury lists so that they don’t exclude large sections of a community, making jury lists public, increasing juror pay and reforming peremptory challenges would fix racial disparities in juries.
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