Because they share a common privilege, most white Americans are implicitly biased against Blacks and Latinos and favor whites as a result of a long history and culture of second-class citizenship for minorities.
Discrimination is painfully evident in the use of peremptory challenges by district attorneys in criminal cases against Black and Latino defendants where no reason is required for striking a potential juror. The same is true in the exercise of peremptories in civil suits brought by Black and Latino plaintiffs.
In 1986 the U.S. Supreme Court in Batson v. Kentucky fashioned a rule to address racial discrimination in selecting juries in criminal cases. Batson was prosecuted for burglary. At trial the prosecutors removed all Blacks from the jury pool. He was convicted. On appeal Batson argued that the removal of Black jurors violated his Sixth Amendment right to an impartial jury and the Equal Protection Cause of the Fourteenth Amendment. The Supreme Court of Kentucky affirmed the convictions. The U.S. Supreme Court reversed and held that Kentucky was not permitted to use its peremptory challenges to exclude members of Batson’s race from the jury on account of race or on the false assumption that members of his race are not qualified to serve as jurors.
The remedy created in Batson requires that a defendant objected at trial and show there was a “racially discriminatory purpose” for striking a juror. Prosecutors are obligated to provide an explanation that the challenge was not directed at a prospective juror because of race. Prosecutors are very adept at producing “race-neutral” explanations for striking jurors and appellate courts rarely overturn a conviction based on a claim of tainted jury selection.
The Batson rules in practice are meaningless as the 2019 U.S. Supreme Court decision in Flowers v. Mississippi showed. Curtis Flowers was tried six times and convicted four separate times for the murder of four employees of a Mississippi furniture store. Flowers is Black; three of the four victims were white. At the first two trials, the State used its peremptory strikes on all of the qualified Black prospective jurors. In each case, the jury convicted Flowers and sentenced him to death, but the convictions were later reversed by the Mississippi Supreme Court based on prosecutorial misconduct. At the third trial, the State used all of its 15 peremptory strikes against Black prospective jurors, and the jury convicted Flowers and sentenced him to death. Reversed by the Mississippi Supreme Court. At the fourth trial, the State exercised 11 peremptory strikes—all against Black prospective jurors and the jury convicted and sentenced Flowers to death. The fourth and fifth trials resulted mistrials. At the sixth trial the same jury selection misconduct continued with the exception of allowing one Black juror to serve and ended in with a conviction and the death sentence. The Mississippi Supreme Court, which had reversed the previous convictions, affirmed the death sentence in the sixth and an appeal proceeded to the U.S. Supreme Court.
The Supreme Court reversed Flowers’s sixth conviction after a detailed examination of the discriminatory questioning of Black jurors, as opposed to white jurors, and concluded that Mississippi was relentless in keeping Black jurors from serving and was pursuing an all-white jury by exercising its peremptory challenges on the basis of race in violation of Batson v. Kentucky. It ordered Flowers back to Mississippi for a seventh trial.
The history in Flowers of repeated racially discriminatory trials screams for a better approach than Batson provides. The Court in Batson was right on this point: “The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude Black persons from juries undermine public confidence in the fairness of our system of justice.”
To provide confidence in fair and impartial justice to all races California must adopt a new rule denying prosecutors the use of peremptory challenges in criminal cases. Since prosecutors represent the People of the State of California there is no reason to give the People any peremptory challenges in a criminal trial. By definition they represent all the people. Prosecutors could still rely on challenges for cause as a result of bias, prejudice, prejudging, etc. revealed in jury selection.
Peremptory challenges should remain for criminal defendants to counterbalance the overwhelming power and resources of the state in the 1 to 2 percent of criminal cases that go to trial, which prosecutors win 3 out of 4 times.
Without prosecutors exercising peremptory challenges, whitewashed juries would end. It is a very small price to pay to substantially increase everyone’s confidence in the rule of law for all races and a fair system of criminal justice.
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