Those who were watching the Derek Chauvin jury selection this week heard the legal term Batson, probably for the first time. It refers to the process by which courts try to keep Black potential jurors from being removed during jury selection because of race. As Justice Thurgood Marshall predicted, Batson has failed in that goal.
James Kirkland Batson was a Black man convicted of burglary by an all-White jury in Kentucky in 1982. His jury was all White because the prosecutor used his peremptory challenges to remove every potential Black juror. Up until the Supreme Court ruling in 1986– the year I graduated from college—lawyers could remove prospective jurors with peremptory challenges without giving a reason why.
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I find it interesting that Mr. Batson insisted that his lawyer object to the state’s removal of the Black jurors. Because it was common practice for lawyers to use peremptory challenges to remove Black jurors without explanation, his lawyer probably didn’t think to object. Without Mr. Batson’s perseverance, however, his lawyer would not have objected. That objection was denied, but it paved the way for the issue to go all the way to the United States Supreme Court, which ruled for Mr. Batson.
Although Justice Marshall hailed the Batson decision as historic, he also warned that the decision would not end racial discriminatory practices in peremptory challenges. He was right, but first let’s look at how a Batson challenge works.
Once either party makes a Batson challenge, the judge must apply a three-step analysis. The right to serve on the jury belongs to the prospective juror, which means, for instance, that an accused White person can challenge the state’s removal of a Black juror. The state can also challenge the defense removal of a Black juror.
The lawyer making the Batson challenge must establish a prima facie case of discrimination. This is legal language which means convincing the judge that the person is in a protected group (race, ethnicity, sex), which is the easy part, but also that the facts and circumstances create an inference that the peremptory was used because of that status.
In my experience, if the state has removed the only Black person on the panel or is asking Black panel members different questions, this is usually enough to get to step two.
If the judge agrees that I have made my case, he or she will require the prosecutor to give what is called a “race neutral” reason for trying to remove the prospective juror. This is where the problems arise. Courts across the country have accepted age, maturity, criminal history of the person or family member, negative opinions about police demeanor, past victimization, and other reasons as “race-neutral.”
In my trials, prosecutors have offered a potential juror’s negative experiences with the police and issues with the criminal legal system as “race-neutral.” In my experience, however, very few Black men and women (or their relatives) have not had negative experiences with police. Nor do they have particularly positive views of the court system. If the color of one’s skin determines the type of interactions they have with police, or their views of the criminal legal system, how can those views be the basis for a race-neutral explanation? And those views often stand in stark contrast to the answers given by White potential jurors who, in my experience, are less likely to have negative interactions with the police.
The third step in a Batson challenge is for the judge to decide whether the party making the challenge has proved purposeful discrimination. Although I have had a judge or two grant my Batson challenges, which means that the person is seated on the jury, it is relatively rare.
One Minnesota dynamic I have observed is that some prosecutors get angry when I have made a challenge, and the judge bends over backwards to assure the prosecutor that no one is calling him or her a racist. This is why Batson has been relatively ineffective in protecting the constitutional right of Black men and women to serve on juries.
Most jurors who decide criminal cases in Hennepin County are White. And, unfortunately, we have large racial disparities among those who are charged. For instance, a couple of years ago, 45.7% of the public defender clients in Hennepin County were Black.
When I think about the racial composition of our juries, I am reminded of one of my clients who saw his jury for the first time. He looked at the sea of White faces and turned to me and asked whether the plea offer was still available.
It was and he pled guilty.