Batson revisited: Exploring racial bias in contemporary jury selection
Thirty years have passed since the hallmark decision of Batson v. Kentucky, 476 U.S. 79 (1986). While racial discrimination in jury selection may no longer exist in such a blatant fashion as it did in yesteryear, attorneys should be aware of the subtle racial bias still present in contemporary jury selection.
Not too long ago, the United States Supreme Court had to make a decision which seems fairly obvious for today’s practitioners of law – “purposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure.” Batson, 476 U.S. at 86. Specifically, in Batson, an African-American defendant was convicted of second-degree burglary and receipt of stolen goods in a Kentucky State Court. Id. at 82. Upon appeal to the United States Supreme Court, Mr. Batson successfully claimed that his Fourteenth Amendment Right to Equal Protection under the United States Constitution was violated because the prosecutor used peremptory challenges to systematically strike all four African-American persons on the venire, resulting in a selected jury composed only of Caucasian individuals. Id. at 79. At the trial level, Mr. Batson’s attorney objected to the prosecutor’s removal of the African-American potential jurors but the trial judge simply ruled that the parties were entitled to use their peremptory challenges to “strike anybody they want to.” Id. at 83.
Upon examining these facts, the United States Supreme Court established a three-part inquiry to determine whether the selection of the jury panel was impermissibly based on race. Id. at 96. First, the defendant was required to show that he was “a member of a cognizable racial group and that the prosecutor ha[d] exercised peremptory challenges to remove from the venire members of the defendant’s race.” Id. Secondly, the defendant was entitled to rely on the fact “that peremptory challenges constitute[d] a jury selection practice that permit[ed] ‘those to discriminate who are of a mind to discriminate.’ ” Id. Lastly, the defendant was required to “show that these facts and any other relevant circumstances raise[d] an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Id. Once the defendant made a prima facie showing, the burden shifted to the prosecution to establish a neutral explanation for excluding the group of jurors, an exclusion which could not be remedied by the prosecutor’s “intuitive judgment – that they would be partial to the defendant because of their shared race.” Id. at 97.
Ultimately, in Batson, the United States Supreme Court remanded the case to the trial court to conduct this examination, noting that “by requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice.” Id. at 99. In writing the majority opinion for the United States Supreme Court, Justice Powell emphasized that “in view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.” Id.
Five years later, the United States extended the holding of its decision in Batson in Powers v. Ohio, 499 U.S. 400 (1991). In Powers, a Caucasian defendant “objected to the State’s use of peremptory challenges to remove seven black venirepersons from the jury.” Id. The prosecution argued that Mr. Powers could not be afforded the Equal Protection claim established in Batson because he – a Caucasian male – could not have standing for the exclusion of African-American jurors. Id. at 406. The United States Supreme Court disagreed and established that “a defendant in a criminal case can raise the third-party equal protection claims of jurors excluded by the prosecution because of their race.” Id. at 415. The United States Supreme Court clearly noted that “to bar petitioner’s claim because his race differs from that of the excluded jurors would be to condone the arbitrary exclusion of citizens from the duty, honor, and privilege of jury service.” Id.
While the holdings of Batson and Powers certainly aided the United States in eradicating racial bias in jury selection, it is significant that neither of those cases was unanimously supported by the Justices of the United States Supreme Court. See, Batson, 476 U.S. at 112 (Justice Burger and Justice Rehnquist dissented); Powers, 499 U.S. at 417 (Justice Scalia and Justice Rehnquist dissented). It would simply be naïve to believe that racial discrimination, albeit in a more nuanced way, doesn’t still occur during jury selection in criminal trials all across the country and specifically in Illinois.
Consider the recent case of People v. Abram, 2016 IL App (1st) 132785. In the Abram case, a jury found defendant guilty of possession of a controlled substance with intent to deliver and the circuit court sentenced him to seven years’ imprisonment. Id. at ¶ 2. During jury selection, “Defense counsel expressed her concern that many African–American jurors were being dismissed for cause.” Id. at ¶ 15 (fn 3). Additionally, Defense counsel had requested the trial court to ask, in relevant part, the following questions: (1) “Do you have any close friends, family members, or colleagues who are African–American?” and (2) “What is your closest relationship with a person of African–American descent?” Id. at ¶ 58 (italics added). The trial court rejected the questions submitted by Defense counsel and noted at the Defendant’s Motion for a New Trial hearing that “I believe that the court’s refusal to ask the questions requested by [defense counsel] was appropriate.” Id. at ¶ 60. The First District Appellate Court agreed, noting that the trial court was not required “to question potential jurors regarding the nature and extent of their personal relationships with African–Americans.” Id. at ¶ 61. Pursuant to Illinois Supreme Court Rule 431(b), there are only four questions a trial court is required to ask of potential jurors in a criminal trial:
A trial court is required to “ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that if a defendant does not testify it cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant’s decision not to testify when the defendant objects.”
While the proposed questions in Abram were clearly not of such a fundamental nature as those required to be asked by a trial court pursuant to Illinois Supreme Court Rule 431(b), it bears at least some consideration as to why such seemingly harmless questions would be barred by the trial court. After all, the Abram defendant was African–American, the neighborhood where he lived and in which the car chase took place was predominantly African–American, and the officers and the experts for the prosecution were Caucasian. Abram, 2016 IL App (1st) at ¶ 61. Would it not make at least some semblance of sense to question potential Caucasian jurors regarding their relationships with African-Americans in order to determine if those jurors would have an adequate contextual understanding of the daily interactions between police officers and African-Americans in that particular community? The Abram court ruled with a resounding no – indicating that a trial court is “constitutionally required to question potential jurors specifically regarding racial prejudice only if ‘special circumstances’ exist that suggest a constitutionally significant likelihood that racial prejudice might infect a defendant’s trial.” Id. at ¶ 62. Thus, the Abram court reasoned that “the issue of race was ‘tangential to the proceedings’ and there were ‘no racial overtones in the basic facts of the case,’ such that asking the jury questions designed to identify racial bias may well have improperly ‘injected considerations of race into a case where the issue was absent.’ ” Id. The Abram court further held that “the State had accepted three African–American jurors and exercised its peremptory challenges in a nondiscriminatory manner, against Caucasians and African–Americans of both sexes.” Id. at ¶ 15 (fn 3).
Admittedly, racial discrimination may not have played a role in the jury selection of the Abram defendant, but the trial court’s prohibition of the Defense counsel from asking neutral race-based questions is concerning. The very road that was paved in cases like Batson and Powers to eradicate racial discrimination in jury selection will be untraveled if criminal defense attorneys are unable to question potential jurors with neutral race-based inquiries. Given the climate of contemporary American culture regarding race – particularly the differing views on the relationship between African-Americans and police officers – the ends of justice would best be served by allowing neutral race-based questioning by defense lawyers in the voir dire process.