Criminally Yours: Don’t Strike That Juror!

Recently, the Supreme Court overturned the conviction of Timothy T. Foster, who had been sentenced to death for murdering an elderly white woman when he was 18 years old. (Foster is now in his late 40s.) The court ruled in a 7-to-1 opinion that the prosecutor unfairly used race as a basis to eliminate all blacks from the jury. Foster is black. (Ironically, the only judge to oppose the decision was Clarence Thomas.)

After years of research and subpoenaing documents, defense attorneys secured handwritten notes from prosecutors that clearly showed they targeted black jurors.

Columns were marked on the tops of their pages listing black jurors under the title, “Definite Nos.” Each black juror was compared to the others with references like, “if it comes down to having to pick one of the black jurors,” just in case they were ordered to reseat one.

The issue begs the question: What advantage do prosecutors gain in striking all black jurors in the first place? Isn’t their role to do justice and be fair?

My answer is, that’s not how they see it.  While judges are responsible for making sure trials are “fair,” prosecutors (and defense attorneys) just want their side to win.  And in urban areas where most defendants are black, there’s no better way to guarantee a conviction than to eliminate all the people from the jury who best relate to the defendant.  Even in our present, so-called “post-racial” age, race matters in how we view testimony.

The 1986 decision of Batson v. Kentucky outlawed striking jurors based on race alone, but it just set up a construct. It didn’t end the problem.

It’s still okay to strike black jurors (or any juror for that matter) as long as the attorney can articulate a “race-neutral” reason.  Determining what is race neutral and what is pretext is where these cases get tricky.

Here’s how it works.

During voir dire, each side gets a set number of peremptory challenges to strike jurors.  The exact number depends on the severity of the crime and the state where the case is being tried. (Federal court has its own rules, as well.)

Peremptory as opposed to for-cause challenges mean a juror can be struck for no reason at all.  It’s based on feel, instinct, and a lot of preconceived stereotypes.

Each side has its own built-in preconceptions.  Prosecutors are told to strike social workers or anyone who appears to be nonconformist, like tattoo artists or astrologers. Defense attorneys, on the other hand, strike people associated with law enforcement or any law-and-order structure, like school principals or compliance attorneys.

Basically, it’s a vibe thing.  While you’re questioning the jurors you get a feeling from them. Are they closed off to you, did they give your client a snarky look, or smile at the prosecutor? How have they dressed for court, what do they read in their spare time, do they seem happy to be there or so angry to be wasting their time on your trial that they barely grunt out an answer?

If one side appears to be using their peremptories to strike everyone of a particular race (and this could be any group — black, Hispanic, white, Asian) the other side then brings a Batson challenge, compelling the first side to present race-neutral reasons on the record as to why those strikes are justified.

If you’re a practiced attorney, you can pretty easily come up with a race-neutral reason. “He averted his eyes when I asked him questions.” “He stared at me too hard when I spoke to him.”  “He rolled his eyes.” “He laughed to himself.” You get the idea. It’s very touchy-feely.

However there are ways to decipher whether the race-neutral reason is honest.

In the Foster case, Judge Roberts found the reasons given by prosecutors were pretextual or, in layman’s terms, just not true.  Take Marilyn Garrett.  She was struck because prosecutors said she was too young — 34 years old.  Well, the prosecutor had already seated two other white people younger than Garrett, including a 21-year-old white woman.

Eddie Hook, another potential black juror, was struck because his son was the same age as the defendant and, prosecutors said, had committed the same crime as Foster. “Nonsense,” Judge Roberts wrote. “Hood’s son had received a 12 month suspended sentence for stealing hubcaps. Foster was charged with capitol murder of a 79-year-old widow after a brutal sexual attack.”

This is why trial attorneys keep a score sheet as complex as your tax deductions, detailing juror reactions, races, and responses to questions on voir dire.  If, ultimately, the judge finds the strike to have been “pretextual,” he’ll order that the juror be reseated.

In my experience, prosecutors are affronted when defense counsel make a Batson challenge.  They see it as impugning the very core of their being.  What, me? Strike someone because of his race? Preposterous.  Judges, also, are reluctant to reseat struck jurors unless the violation is so egregious and the “neutral” reason so obviously pretextual that they have no other choice.

Some scholars have suggested that peremptories should be eliminated because of the possibility of misusing them, but having represented clients in more than 100 trials, I strongly disagree.

Peremptory strikes are the lifeblood of picking a winning jury, both for defense and prosecution.

Very few people will admit in open court that they’re either 1) prejudiced, or 2) cannot be fair.  Some of us don’t even recognize our own prejudices.  (It’s only the people eager to get out of jury service who admit their prejudices pretty darn quickly.)

Peremptory challenges give the attorneys the leeway to use their instinct, experience, discretion, and natural sense of people, to kick off people just because of the vibe the attorney (or the client) gets from them — something difficult to put into words but easy to sense.

Peremptories also help level the playing field.  In state court (it’s different in federal court), the defense and prosecution get an equal number.  Both watch the other’s choices and strikes as closely as an umpire in a baseball game and can call a Batson foul at any time.  If there’s enough support, like in the Foster case, that the “neutral” reason is pretextual, the judge will either put the offender on notice that no more such strikes will be tolerated without a very good reason or potentially reseat the juror.  Judges disfavor doing this, but the rare one will.

Batson was originally decided to protect black defendants from unscrupulous prosecutors who wanted to seat all white juries.

Nowadays, Batson works not only for defendants but for prosecutors who charge defense attorneys with trying to eliminate a certain group from the panel — like all white men or Asians.

But whatever the situation, the peremptories give both sides a chance to use their gut to make choices, while at the same time providing the Batson safety net so that if one side really is striking jurors based on race, the other side can counter it.

We don’t need fewer peremptories in jury selection. What we could use, though, are more judges who take the challenges seriously enough to reseat jurors so that men like Foster can get a fair trial in the first instance instead of waiting almost thirty years for their case to be overturned.

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Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at [email protected] or tonimessinalaw.com.