June 8, 2016
Page 7
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A Jury of One’s Peers? “A Deinite NO”
Prosecutors
unfairly seek
white juries
s. b obbin s ingh
The U.S. Supreme
Court in a 7-1 ruling last
month issued an opinion
that prosecutors pur-
posefully and unconsti-
tutionally excluded all
potential African-Amer-
ican jurors from the jury in the tri-
al of Timothy Foster, a black man,
in Georgia in 1987. The all-white
jury sentenced him to death.
The inding that jurors can’t be
excluded from a jury because of
their race isn’t new. In 1986 the
U.S. Supreme Court ruled in Bat-
son v. Kentucky that the selection
of jurors by race was unconsti-
tutional. However, while Batson
made it illegal to select jurors on
the basis of race, prosecutors and
defense lawyers are still able to
exclude jurors through perempto-
ry challenges for any other reason
other than race.
The any other reason doesn’t
have to be relevant to the case
at hand. Unfortunately, judges
commonly accept the peremp-
tory challenge at face value and
allow the exclusion, concluding
that there is no discrimination.
The practice, therefore, is to strike
potential jurors who are black and
by
assert any plausible race neutral
reason for the strike.
At Foster’s 1987 trial, pros-
ecutors used four of their nine
peremptory strikes to exclude all
four black prospective
jurors. The prosecutors
claimed they struck
these jurors for reasons
unrelated to race.
Two decades later, at-
torney Steve Bright and
the Southern Center for
Human Rights were able
to obtain the prosecution’s notes
from the jury selection process.
They proved to be profoundly
disturbing, showing prosecutors
identiied black people on the list
of prospective jurors with specif-
ic, multiple explicit marks. More-
over, they listed all of the black
jurors as “Deinite NOs.” The
Supreme Court has now ruled that
what happened in Mr. Foster’s
case was unconstitutional and
granted him a new trial.
Evidence shows all-white ju-
ries are more likely to convict and
sentence black defendants more
severely than a jury that is racially
diverse. For example, according to
studies in Washington state “when
the facts of the cases are similar, ju-
rors are three times more likely to
recommend a death sentence if the
defendant is black instead of white.”
Moreover, every juror that con-
victed and sentenced Washington’s
black death row inmate was white.
What Timothy Foster’s case and
the data from Washington show
is that the jury selection process,
especially in death-eligible cases,
is heavily inluenced by race and
that prosecutors intentionally seek
to create white juries.
This means black defendants
are less likely to face “a jury of
their peers.” Other examples
demonstrate that our criminal
justice system is deeply infected
with racism. For example, jurors
are typically chosen from lists of
registered voters, but black people
are less likely to be registered.
As the recent Racial and Eth-
nic Disparities Report from Mult-
nomah County concluded, people
of color are disproportionately
impacted by the criminal justice
system. Prosecutors are likely to
exclude minorities from juries
knowing that their personal expe-
rience may have caused them to
distrust law enforcement.
More insidious still is that Ore-
gon is one of two states that allow
for non-unanimous jury convictions
in felony (non-death) cases. This
feature of Oregon’s justice system
ensures that even if people of col-
or make it through the screening
process to sit on a jury, their voices
can be silenced because only 10 of
the 12 jurors need to ind a person
guilty to ensure a conviction.
In Oregon, we do not track the
demographics of jurors who serve
on juries. We have no clear way of
knowing whether or not people of
color are actually represented in
a meaningful way in our criminal
justice system as jurors. Several
studies of other states have shown
that pervasive discrimination ex-
ists in the jury selection process.
There is no reason to think Oregon
is immune.
The discovery of the type of
notes kept by the prosecutor in
Mr. Foster’s case is uncommon.
Proving such clearly discriminato-
ry intent will often be impossible
due to the rarity of such a blatant
record. It is only by tracking juror
demographics that we will be able
to see patterns and understand
who is being allowed to partici-
pate in our justice system.
The impact of the US Supreme
Court’s decision in Foster is likely
to be limited because of the unusu-
al existence in that case of written
records making the discriminatory
exclusions obvious. But there’s no
reason to think that it’s in any way
an isolated example of racially bi-
ased jury selection.
The combination of overrepre-
sentation of people of color in our
criminal justice system and the
under-representation of people of
color in positions of judicial de-
cision-making results in a system
that intentionally targets those on
the margins.
S. Bobbin Singh, J.D., is the
executive director of the Oregon
Justice Resource Center.
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