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Fixing juries

New rules are needed to keep prosecutors from concealing racial bias when choosing jurors.

December 13, 2007

It seemed like a good idea at the time. In 1986, the U.S. Supreme Court ruled that prosecutors could not use peremptory challenges of prospective jurors -- challenges for which no cause need be offered -- to exclude individuals because of their race. When a prosecutor used his challenges to remove potential jurors in a way that the defense found suspicious, a judge could demand a "race-neutral" explanation for the exclusions.

Unfortunately, the court's solution has complicated the work of judges and defense attorneys without banishing ulterior racial motives from jury selection. That was clear last week when the Supreme Court heard arguments concerning the death sentence an all-white Louisiana jury meted out to an African American man convicted of killing his wife's boyfriend.

The court could -- and should -- grant a new trial and sentencing hearing to Allen Snyder. Not only did the prosecutor use peremptory challenges to exclude five black potential jurors, but in asking for the death penalty, he compared Snyder to O.J. Simpson, deliberately invoking the specter of race. Chief Justice John G. Roberts Jr. pointedly asked a lawyer for Louisiana, "Do you think the prosecutor would have made the analogy if there had been a black juror on the jury?"

The circumstances in Snyder's case include not only the exclusion of blacks from the jury but an apparent racial double standard in the disqualification process. The one African American accepted by the prosecution, a student teacher, was later removed supposedly because his academic duties might cause him to rush through deliberations. But the prosecutor accepted a white juror, a contractor, who had home-building projects to complete and an ill wife.

Yet even if Snyder prevails, his case demonstrates the problems with the compromise the court adopted in 1986. To counter a suspicion of a racial motive for a peremptory challenge, all a prosecutor must do is cite some nonracial explanation, however trivial or subjective -- say, a hunch that a prospective juror is a bad bet because of his style of dress or his occupation.

Sometimes, as in the Snyder case, the persuasiveness of such a challenge can be undermined by a prosecutor's willingness to accept another juror with a similar problem. Often, however, contradictions won't be obvious. The result, as Justice Stephen G. Breyer pointed out in a 2005 Texas case, is that "the use of race- and gender-based stereotypes in the jury selection process seems better organized and more systematized than ever before."

Breyer suggested a better solution: Abolish peremptory challenges altogether, requiring prosecutors and defense attorneys alike to challenge jurors only for cause, not because of a hunch.

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