Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a question that is probably impossible to definitively answer but that is very important to explore: where state legislatures and courts continue to retain outmoded tort doctrines like contributory negligence, which tend to limit plaintiffs’ access to juries, is this because state legislatures and judges believe juries with large concentrations of African-Americans and low-income people will unacceptably distribute wealth to plaintiffs? The term “Bronx effect” alludes to this alleged phenomenon. No other article has rigorously tried to link the so-called Bronx effect with the perpetuation of outmoded tort doctrines. The authors use a complex interdisciplinary approach to rank states in terms of the degree to which their tort doctrines deny plaintiffs’ access to juries. Digging deep into factors that might affect a state’s ranking, they then find strong correlations between a state’s law making it difficult for plaintiffs to reach a jury, and a state’s having a large African-American population and/or being part of the South. This and other findings in the article are significant, bringing to light a race-based exclusionary pattern in the legal system. The pattern of keeping cases from black buries also likely leads to under compensation of African-American plaintiffs, my response explains. The article deserves a place in torts scholarship generally, in critical race scholarship, and in empirical legal scholarship. While it is not surprising that definitive causal conclusions are lacking, implicit bias may shed light on the mechanisms by which these outmoded doctrines endure. The article’s calls for reform are reasonable in light of the evidence of the study and other torts scholarship.
The Atlantic has a good article on Rodriguez v. Colorado which is currently before the U.S. Supreme Court. The article provides good background information on the issue presented by Rodriguez. As some will recall, Rodriguez asks the question as to whether the court can look into jury deliberations, especially when those deliberations reveal that a juror has made racial comments about the defendant and witnesses.
In the 2015 Term, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way to eliminate discriminatory peremptory challenges is to eliminate the peremptory challenge.
In this capital case from Georgia, petitioner Timothy Tyrone Foster, an African-American man, claimed that the prosecutors violated Batson by exercising race-based peremptories and striking four African-American prospective jurors. Foster was tried, convicted, and sentenced to death by an all-white jury. What made this case so unusual was that Foster, through the Georgia Open Records Act, was able to obtain the prosecutors’ notes. In the notes, the prosecution had highlighted the names of African-American prospective jurors on the venire list, circled their race on their questionnaires and noted it on their juror cards, and put them on a “definite NO’s” list. As the notes make clear, the prosecutors focused on the African-American prospective jurors’ race, even though they gave seemingly race-neutral reasons to explain why they removed them.
The Court in Foster undertook a close reading of the prosecutors’ reasons and found race to be the basis for the prosecutors’ peremptory challenges. This Article identifies the strengths and weaknesses of the Court’s opinion in Foster. However, Foster’s case was unusual because the prosecutors’ notes were in effect a “smoking gun.” Without such notes, the prosecutors’ seemingly race-neutral explanations would have sufficed under Batson. The Court needs to recognize the ineffectiveness of Batson. It could tweak the Batson test in different ways, such as by giving more weight to discriminatory effects or practices or by devising a stronger remedy. In the end, however, the only remedy that is adequate to the task is the one that Justice Marshall proposed in his Batson concurrence thirty years ago: eliminate peremptory challenges.
The NY Times has an article about Pena-Rodriguez v. Colorado, a case currently before the U.S. Supreme Court. As some may recall, Pena-Rodriguez involves racial bias in the jury deliberation room. The specific issue before the high court in Pena-Rodriguez is:
[W]hether a no- impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.
The Supreme Court’s May 2016 decision in Foster v. Chatman involved smoking-gun evidence that the State of Georgia discriminated against African-Americans in jury selection during Foster’s 1987 capital trial. Foster was decided on the thirtieth anniversary of Batson v. Kentucky, the first in the line of cases to prohibit striking prospective jurors on the basis of their race or gender. But the evidence of discrimination for Batson challenges is rarely so obvious and available as it was in Foster.
Where litigants have struggled to produce evidence of discrimination in individual cases, empirical studies have been able to assess jury selection practices through a broader lens. This Article uses original data gathered from trial transcripts to examine race- and gender-related exclusion of potential jurors during several stages of jury selection in a set of 35 South Carolina cases that resulted in death sentences from 1997 to 2012. It includes observations for over 3,000 venire members for gender and observations for over 1,000 venire members for race. This is one of few studies to examine the use of peremptory strikes in actual trials; no previous studies of this magnitude have examined this topic in South Carolina.
Consistent with comparable studies, this study’s results revealed that white and black potential jurors had substantially different experiences on their path to the jury box, while gender played a subtler role. Findings included that prosecutors used peremptory strikes against 35% of eligible African-American venire members, compared to 12% of eligible white venire members, and that the death-qualification process impeded a substantial number of African-Americans from serving. These disparities contributed to overrepresentation of whites on the juries. The study’s findings implicate the fairness of some of South Carolina’s current death row inmates, in addition to further buttressing the argument that capital conviction and sentencing procedures are incompatible with the need for representative and impartial juries.
In at least one South Carolina courtroom, the answer to that question is "no."
According to the Rock Hill Herald, a South Carolina judge denied a challenge for cause for a female juror who appeared for jury service wearing a Confederate flag t-shirt with the following words: “If this flag offends you, you need a history lesson.”
The challenge was made by an African-American public defender who found the juror's shirt confrontational. According to the public defender, the juror wore the shirt to send a message. The judge, however, saw it differently and relied on the juror's statement that she could be fair and impartial to allow her to avoid being challenged for cause. Once the judge denied the challenge for cause, the public defender exercised a peremptory to have the juror removed.
Unfortunately, this case never went to trial because the defendant pled guilty so we don't know what the appellate court would have done had the judge's decision been appealed. Nonetheless, this case raises several interesting questions worthy of further consideration.
1. Would the judge have made the same ruling if the defendant was African-American? Here, the only African-American in the courtroom was the public defender? What if the victim or key witnesses in the case were African-American.
2. Would the public defender use a peremptory against anyone who wore a Confederate shirt? If the answer is "no" e.g., he would allow an African-American juror to serve who wore the same type of shirt then there might be a Batson problem. Did the public defender in this case strike the juror because of the shirt or because she was a white person wearing the shirt?
The changes listed below were due in large part to Jefferson County Circuit Court Judge Olu Stevens who drew the ire of local prosecutors for dismissing non-diverse jury pools.
Changes in the works at the state level by the court administrative office, some of which are pending approval by the state Supreme Court, include revisions to state rules not updated since 1998.
Entered into an agreement with the Kentucky Board of Elections to get names from voter registry quarterly instead of the mandated yearly update. Agreements are in the works to do the same with the other two sources of the potential juror master list – the driver’s license registry and those filing state individual income taxes. This, in theory, will keep the list of mailing addresses more accurate.
Implement a standardized, automated system of postcard notifications to no-show jurors and then follow up with failure to appear letters. This has not occurred with any sustained consistency in Jefferson County, though when it has been done, appearance rates improved.
Moved a full-time AOC employee over jury management issues. Previously, there's been no key point person.
Remove “legalese” and other cumbersome language from paperwork sent to citizens.
Move some jury administration elements to Frankfort and out of Jefferson County to save an estimated $44,000 yearly. No local jobs are expected to be lost with this change.
Seeking $12,000 in grant funding to work with the Louisville Bar Association to create a "juror awareness campaign" targeted in Louisville that would include informational videos and bus advertising. Would seek to cut the failure to appear rate and boost confidence in the system.
TX Prosecutor Claims that his Boss "Encouraged" Prosecutors to Strike Blacks from Juries
A prosecutor from Wharton County Texas claims that he was "advised or encouraged" to strike black jurors as a matter of trial strategy. While many people believe that attorneys especially prosecutors strike potential jurors because of race, which violates Batson v Kentucky, proving such conduct has been historically difficult. This is one of the few times that I have actually heard of a prosecutor acknowledging that Batson violations are encouraged and promoted within the District Attorney's office. For another extreme example of a prosecutor encouraging subordinates to violate Batson watch this infamous training video put out by the Philadelphia DA's office 10 years after Batson was decided by the Supreme Court.