The one area of our judicial system where citizens can participate and assist the maintenance of civil order is jury service. The principle of trial by jury and judgment by one’s peers is a bedrock of our democracy, and a distinguishing feature of the American system of justice. However, for much of our nation’s history, racism has tainted jury selection and the result has been uneven justice, as all-white and hostile juries have often passed judgment on Black defendants in criminal and capital cases. A new report from the Equal Justice Initiative reveals “Jim Crow” era practices still exist in some southern states as prosecutors routinely strike prospective Black jurors from jury pools in blatant violation of the law. Racial discrimination in jury selection has led to wrongful convictions and worse, the sentencing of Blacks whose convictions were questionable to capital punishment.

The report exposes the process of jury selection and details how prosecutors in select southern jurisdictions purposefully exclude Blacks from juries in criminal and capital cases where there is a Black defendant. The states under examination were Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee. Prosecutors in these states frequently claimed “race neutral” reasons for striking Blacks from juries, such as “low intelligence,” being too old (age 43) or too young (age 28), or their marital status. In addition, prosecutors have objected to prospective Black jurors due to their neighborhood, for chewing gum and their physical mannerisms. In Houston County, Alabama 80% of Blacks qualified for jury service have been struck by prosecutors in death penalty cases.

The report identified several ways in which prosecutors struck Blacks from jury panels or “venires.” During the jury selection process, known legally as “voir dire,” lawyers can challenge the seating of potential jurors on the panel “for cause” if they believe the individual will not be able to act impartially as a juror. Once individuals are removed from the jury panel for cause, lawyers can then use “peremptory strikes” to eliminate individuals from jury service, and that is how prosecutors in the states examined by the report have kept Blacks off juries.

Historically, the Civil Rights Act of 1875 made race-based discrimination in jury service illegal. Not long thereafter in 1880 a Supreme Court decision in Strauder v. West Virginia turned back a state provision that restricted jury duty to whites. The Supreme Court took up the issue in 1965 in Swain v. Alabama, a case involving a Black man, Robert Swain, sentenced to death by an all-white jury for the rape of a white woman. At the time, no Blacks had served on a jury in Talladega County since 1950. The six Blacks on the prospective jury panel were struck by the prosecutor. The Supreme Court found that the prosecutors did not intentionally discriminate against Black potential jurors. The ruling in Swain stood for twenty years, and in that time no litigant successfully won a claim of jury discrimination during those two decades. The Court took up the issue again in 1986 in Batson v. Kentucky and reversed itself, and held that a prosecutor cannot use preemptory strikes to exclude a prospective juror based on his or her race. It lowered the standard a proof, and in theory, required that in situations where there appears to be an inference of discrimination in jury selection by the use of peremptory strikes, a prosecutor must explain why he removed potential Black jurors.

In Batson, the Court established a three-step test for a defendant to establish that a prosecutor removed potential jurors solely based on race. First, the defendant must establish that the prosecutor’s actions in selecting jurors raise an inference of discrimination. The latter can be established by the pattern of the prosecutor’s “strikes” against potential jurors or statements made by the prosecutor during the jury selection process. The prosecutor must then refute the claim by presenting nonracial or “race neutral” reasons for eliminating the jurors in question. It is a low threshold to meet and the Supreme Court has ruled that the reasons do not have to be plausible or persuasive. Finally, the trial judge has to assess all of the information and circumstances and determine if the defense has proven that the prosecutor has intentionally discriminated against individuals of color on a jury panel. The history of such challenges show the trial courts rarely take action and appeals are difficult and generally not successful.

In some states, the highest courts have reversed trial verdicts because of tainted jury pools. In Alabama, 80 trials were overturned, nearly 98% of them criminal cases, because of racially tainted jury selection. In Florida, 33 criminal convictions were overturned because prosecutors eliminated jurors based on race. In Louisiana 12 criminal verdicts have been reversed and in Georgia 8 reversals have occurred using the standard established in Batson. Overwhelmingly though, challenges to jury selection are either dismissed or defense lawyers fail to raise them during the jury selection process.

Despite legislation and case law, the Equal Justice Initiative found patterns of discrimination in counties throughout the states under examination. Tragically, Black defendants and prospective Black jurors have been on the receiving end of prosecutorial misconduct in jury selection, and prosecutors have faced no penalty for their conduct. While the impact on the defendant is easily understood, the toll jury exclusion takes on Blacks is seldom discussed. The report provided poignant vignettes of Blacks who were fully capable of serving on juries but who were struck during the jury selection process for the flimsiest of reasons. In many instances, Blacks in the jury pool were demeaned and prosecutors humiliated potential Black jurors in such a way that sent a message back to the larger community.

The Equal Justice Initiative details a number of cases in which defendants and prospective jurors faced discrimination. The case of Robert Tarver, a 36-year-old Black man convicted of murdering a 63-year-old white, male convenient storeowner in Cottonwood, Alabama particularly stands out. Mr. Tarver maintained his innocence and passed a polygraph test. The only witness to place him at the scene of the crime was his co-defendant, Andrew Lee Richardson. Mr. Tarver was tried and convicted by a jury of eleven white jurors and one Black juror despite the fact that Blacks comprise nearly 40% of Russell County. During jury selection, the prosecutor used peremptory strikes to eliminate 13 of 14 Blacks who were qualified to serve as jurors.

The main evidence against Mr. Tarver was the testimony of Andrew Lee Richardson. The district insisted that a deal had not been given to Mr. Tarver’s co-defendant, but after the trial Richardson pleaded guilty to a single count of robbery and received a 25-year sentence. Meanwhile, an assistant district attorney later admitted that the prosecutor intended to exclude Blacks from the jury because of their race. Mr. Tarver challenged the prosecutor and the trial judge found that Blacks had been excluded because of their race. However, he refused to grant Mr. Tarver a new trial because Mr. Tarver’s lawyers failed to object to the selection process at trial. The jury sentenced Mr. Tarver to life in prison without parole but the trial judge overrode the jury and imposed the death penalty. Mr. Tarver was executed by electric chair on April 14, 2000.

The Tarver case, and countess others, point to the need for reform of the jury selection process and real penalties for prosecutors who engage in the discriminatory exclusion of Blacks from juries. The Equal Justice Initiative report contains a number of recommendations to address discrimination in the jury selection process. Among the recommendations is better training for defense counsel so they can be prepared to challenge prosecutors during voir dire. The report also recommends better monitoring of jury selection by not-for-profit groups, judicial advocates, bar associations and court administrators. The Equal Justice Initiative also calls for stiffer penalties for prosecutors who are found to have discriminated against potential jurors. To read the full report, go to http://www.eji.org/eji/.