Strike Peremptory Challenges

The Washington Post’s coverage of Foster v. Chatman and racial bias in jury selection brings up two issues that are not often discussed.

First, most of the coverage of peremptory challenges in general, and Foster in particular, have focused on alleged prosecutorial misconduct.  Specifically, commentators allege that prosecutors use peremptory challenges in a racially biased way.  I have read several articles who cite to a 2012 study of racial bias in jury selection in North Carolina.  In that study, prosecutors used 60% of their peremptory challenges to strike black jurors, even though they made up only 32% of the jury pool.  The implication, made explicit by many, is that prosecutors in North Carolina are racially biased against black jurors.  The Post article, crucially, points out the flip side of the coin.  “Defense attorneys used 87% of their strikes against white jurors, who made up 68% of the jury pool.”  Each side of a criminal prosecution, then, uses peremptory challenges in a way that may show racial bias*.  Could this be because there are differences between the races when it comes to their attitudes towards the criminal justice system, as the Post polling shows?  Could it be because recent shootings “have widened the gulf between how whites and blacks view law enforcement” as the Post asks?

The Post’s coverage of a second issue is also thoughtful and encouraging.  That issue is the way that Batson challenges (accusations that one side is using peremptory challenges in a racist way) actually occur in court.  The Foster case is not only the subject of the article but a great example.  Foster murdered Queen Madge White, a 79-year-old widow and former elementary school teacher.  He broke into her home, broke her jaw, sexually molested her with a bottle, and strangled her to death.  Foster confessed to the crime.  The case went to trial anyway, and the defense attorney announced that they would make a Batson challenge if any of the black jurors in the pool were stricken.  The prosecutor took notes of the characteristics of each juror, including their race.  He then used four peremptory challenges on the black jurors in the pool.  The Defense made a Batson challenge, which was heard by the judge, and rejected, because the prosecution provided valid, non-racial reasons for striking the jurors.

Racism is wrong, of course.  Striking black jurors to disenfranchise them is wrong.  Striking black jurors because of racial animus is wrong and stupid.  Prosecutors should be allowed to account for the different attitudes of blacks and whites without being accused of racism.  The lesson that I’ve learned from Chatman is that you can never strike a black juror (or even take a note indicating that someone is black) without someone making that accusation.  I don’t want to have to defend myself in that way.

That’s why my preference, along with Thurgood Marshal and Stephen Breyer, is to eliminate peremptory challenges entirely.  The burden of this change would fall most heavily on the community, rather the defendant, since prosecutors need everyone to agree, and biased juror can cost the community a conviction.  Defendants, by contrast, can afford a jury of 11 jurors with pro-prosecution biases, as long as they have one that is defense biased, or even neutral.  Eliminating peremptory challenges would remove the a the risk of professional sanctions on prosecutors who are constantly at risk of being misunderstood by an appellate court 20 years after jury selection.  Exposing the reputation and livelyhood of prosecutors to such capricious and inconsistent risk is not just.  A false accusation of racism, when made by the California Supreme Court, can end a career.  Therefore, we should end peremptory challenges altogether.

*It might not be racial bias.  Race correlates heavily with poverty, for example,  and it could be that prosecutors prefer rich jurors to poor ones and defense attorneys vice-versa.  I have heard anecdotal evidence to this effect.  One part of the discussion of these statistics that needs to be highlighted is that jury selection is extremely complicated, just like race relations, and reducing our analysis of the North Carolina study to the naked numbers of blacks and whites stricken is massively misleading and unhelpful.  In the same way that counting the number of firemen at fires and then accusing them of arson would be misleading and unhelpful.  This is not a case in which an innocent man was incarcerated because the prosecution gerrymandered a racist jury.  This was a case in which the defense elected to go to trial even though the defendant had confessed, raised allegations of racism at every turn, and each time these allegations were rejected by a judge.  Foster’s conviction should not have been overturned merely because the prosecution prepared for the defense’s threatened Batson challenges.


The Supreme Court reversed Foster v. Chatman on the grounds that the prosecutor improperly used peremptory challenges.  I’m not sure that was the right thing to do.

The California Supreme Court, in People v. Gutierrez, et al., handed down a rare reversal on the same grounds.  You can read the unanimous decision here.  This is the first time since 2001 that the California Supreme Court found that racial bias tainted jury selection.

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