Posted: June 24, 2015
This fall, the U.S. Supreme Court will hear a Georgia case, Foster v. Humphrey,
in which an all-white jury sentenced a black man to death after
prosecutors struck every black prospective juror in the case. The Court
will determine whether prosecutors violated the Court’s 1986 decision
in Batson v. Kentucky, which banned the practice of dismissing potential jurors on the basis of race. In anticipation of the case, The New Yorker published an analysis of tactics used to evade Batson
challenges by providing race-neutral reasons for striking jurors. In
Philadelphia, a training video told new prosecutors, "When you do have a
black juror, you question them at length. And on this little sheet that
you have, mark something down that you can articulate later. . . . You
may want to ask more questions of those people so it gives you more
ammunition to make an articulable reason as to why you are striking
them, not for race." In the 1990s, prosecutors in North Carolina --
whose use of peremptory strikes have been held to violate that state's Racial Justice Act
-- held training sessions featuring a handout titled, "Batson
Justifications: Articulating Juror Negatives." Defense attorneys can
challenge these reasons, but such challenges are rarely successful.
Stephen Bright, president of the Southern Center for Human Rights, who
is representing Foster, said, "You’re asking the judge to say that the
prosecutor intentionally discriminated on the basis of race, and that he
lied about it. That’s very difficult psychologically for the average
judge.” Justice Thurgood Marshall recommended banning peremptory strikes
so as to stop racial bias in jury selection. Louisiana Capital
Assistance Center director Richard Bourke suggests a more politically
realistic reform: track the racial makeup of juries in order to raise
public awareness of bias.
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