Jury selection becomes latest racial justice fight
Several states take on bias in process and ‘intentional discrimination’
As efforts to reform the criminal justice system at the federal level have largely stalled, state policymakers are opening a new front in the fight to reduce bias in the system by aiming to eliminate racial discrimination in jury selection.
Some high-profile trials with nearly all-white juries, including those of Kyle Rittenhouse in Kenosha, Wis., and the three men who chased down and killed Ahmaud Arbery last year in Glynn County, Ga., where the judge had acknowledged there appeared to be “intentional discrimination” in jury selection, have brought renewed attention to how America’s juries often do not reflect their communities.
Earlier this month, a panel of nine white jurors, two Asian jurors and one Black juror began hearing testimony in the trial of Kimberly Potter, a former suburban Minneapolis police officer who is charged with manslaughter in the killing of Daunte Wright, a 20-yearold Black man, during a traffic stop last spring. The two alternates are also white. The trial is being held in Hennepin County, where more than one in three residents are non-white.
Nearly four decades after the Supreme Court established a precedent meant to eliminate racial discrimination in jury selection, the problem remains widespread, research shows. Most often the practice occurs through a legal tactic called a peremptory challenge, which allows an attorney to strike a potential juror without having to state a reason.
But critics says lawyers have found ways to get around the Supreme Court’s prohibition against discrimination in jury selection by asking potential Black jurors such questions as, “Have you ever had a bad encounter with the police?” If the potential juror says yes, they could be dismissed for perceived bias against police. One study in the Deep South found Black jurors were being challenged and dismissed at double or triple the rates of other people.
Elisabeth Semel, a director of the Death Penalty Clinic at the University of California Berkeley School of Law, said the South is no anomaly in this respect.
“In every study that I know of that has been done across the country, looking both in state courts and in federal courts, there has been a universal finding,” Semel said. “The exercise of racially discriminatory peremptory strikes remains an ever present feature of the jury selection system. So you can pick California, you can pick North Carolina, you can pick Connecticut, you can pick the state of Washington, Oregon, on and on. And the results are unremarkably the same.”
The push by states to eliminate racial discrimination in the selection process gained momentum three years ago with action by the Washington Supreme Court and most recently by the Arizona Supreme Court. In 2018, the Washington high court adopted a rule that made it easier for opposing lawyers to challenge a peremptory strike without having to prove intentional discrimination, as is the case under the United States Supreme Court precedent. In 2020, California passed legislation that codified much of Washington’s rule into California law. In September, the Arizona high court abolished peremptory challenges altogether.
Research shows racially diverse juries spend more time deliberating, make fewer errors and can result in fairer trials. But African Americans have been fighting for access to jury boxes for more than 150 years, since the 14th Amendment enshrined Black people’s right to full political participation. A generation later, Congress passed the Civil Rights Act of 1875, which included provisions explicitly outlawing racial discrimination in jury selection. In 1986, the Supreme Court found discrimination remained pervasive in jury selection.
The reasons behind America’s overwhelmingly white juries are many. The problem begins with the way people are summoned for jury duty, said William Snowden, who founded a nonprofit called the Juror Project after witnessing a lack of jury diversity as a public defender in New Orleans.
Many places use voter registration files and DMV records to find potential jurors, skewing the jury pool toward people who remain at one address for a long period of time, a group that tends to be more white than the population as a whole. Some jurisdictions also make those with felony convictions ineligible, disproportionately excluding people of color. Experts also note the juror pay system tends to make jury service impossible for all but those who can afford to miss work.
Ausha Byng testified before the Washington Supreme Court in 2017, during a symposium on racial bias in jury selection. After two hours of listening intently to legal experts flown in from all over the country, the then30-year-old mother and accountant told the justices of her experience of being summoned for duty in Renton, Wash.
Byng, who is biracial, recalled for the justices how excited she was when she received her summons in the mail. “Most people get the notices, and they don’t want to do it,” Byng testified. “But me, I was excited,” noting how she likes to watch shows like Law & Order.
Byng, who was at the time balancing a family with going to college, notified her professors and arranged child care for her infant daughter. She didn’t have a car then, so when the day came, she rode the bus to the courthouse. And then she sat and waited. After lunch, Byng was selected as a potential juror for a drug case against a young Black man.
She said she remembers the prosecutor asked most of his questions to the entire panel of potential jurors but singled her out for one question. He asked her if she trusted the police. Byng, the only person of color in the jury pool, said no. And with that answer, the prosecutor pronounced, “The state would like to thank and excuse juror Number Five.”
Byng remembers the courtroom falling silent. She could feel everyone’s eyes on her. The judge asked to speak to the attorneys in private. Byng and the other potential jurors were placed in a back room for 30 minutes as the attorneys discussed her dismissal.
“It was long enough for all the other juror prospects to kind of like make fun of me, like ‘What did you do? What did you say?’ ” she recalled in her testimony to the justices.
When the deliberations concluded, the judge ruled that Byng’s dismissal was legal.