Rosario: Examining an intriguing rule change about bias in jury selection

By Rubén Rosario | rrosario@pioneerpress.com | Pioneer Press

Bear with me here. Some columns require a prologue.

In a 1986 ruling about a Kentucky case, the U.S. Supreme Court found that the use of peremptory challenges by prosecutors to bounce potential jurors because of their race violated the equal protection clause under the 14th Amendment to the Constitution.

“The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community,” the court wrote in the Batson vs. Kentucky 7-2 decision. “Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.”

The ruling, however, led to a three-step standard before a challenge to ousting a prospective juror could be, well, successfully challenged, mostly by defense attorneys:

1. The attorney challenging the peremptory juror strike must “make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.”
2. The striking party, in most cases but not always the prosecutor, must “come forward with a race-neutral explanation for the challenge.”
3. Lastly, the court, in this case the presiding judge, must “determine if the defendant has established purposeful discrimination.”

Problem solved, right?

Just a year later after the ruling, prosecutors in Georgia applied that three-step standard and survived challenges to kick all five black prospective jurors in the jury pool from a murder case involving a black defendant. The all-white jury later convicted the man and sentenced him to death.

In 2016, three decades later, the nation’s highest court, though with different justices on the bench, ruled that the challenges in that case were strictly based on race and should have been sustained. It ordered a new trial.

The justices found the cited reasons for eliminating the black jurors, in that case, were, essentially, bogus. One potential black juror was kicked off, according to a published report on the case, because “her age was close to the defendant. She was 34; the defendant was 19. A 21-year-old white man served on the jury with no objection from the prosecution.”

Fast-forward to earlier this month. In a rule change, the Washington state Supreme Court pretty much set aside the Batson standards and will now allow both sides in a criminal and civil case to challenge their counterparts “if they feel they are using improper bias in dismissing potential jurors,” according to a recent article in Colorlines, an online magazine. Moreover, the trial judge in that state will ultimately determine if “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.”

(Years after Batson) “a growing body of evidence shows that racial discrimination remains rampant in jury selection,” that state’s  ACLU chapter noted in a draft of the rule changes the court mostly adopted.  “In part, this is because Batson recognizes only ‘purposeful discrimination,’ whereas racism is often unintentional, institutional, or unconscious.”

The ACLU also noted that in over 40 cases since Batson, Washington appellate courts have never reversed a conviction based on a trial court’s erroneous denial of a Batson challenge.

“We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination.”

Terri Nelson, legal director for Minnesota’s ACLU chapter, applauded the rule change, which will go into effect statewide in Washington shortly. She believes it’s something Minnesota courts should emulate.

“Absolutely,” Nelson told me. “If we are ever going to address the inconceivable racial disparity in the criminal justice system, we need to look at implicit bias and what happens here in Minnesota.”

Veteran Hennepin County Judge Kevin Burke agrees that Washington’s decision could have beneficial effects throughout the country’s court system.

“Since Batson was decided there has been a steady expansion of the reasons judges have accepted in denying Batson challenges but more importantly we know far more about implicit bias,” said Burke, who has studied the effects of implicit bias and addresses it in his pretrial jury instructions.

“We also know there continues to be an unacceptable perception by communities of color that the criminal justice system treats people of color unfairly. It is simply wrong to suggest Minnesota has solved the problem or that doing more is not an imperative,” he added.

Mary Moriarty, who runs Hennepin County’s public defender office, agrees that intentional and implicit bias is a major concern, but she has some issues with the Washington decision as it affects the defense.

“It is problematic that the rule would be applied to defense counsel,” she explained in an email. “Our clients are on trial and they have a right, in my opinion, to remove whomever they want from the panel of jurors deciding their fate.

“Because of attorney-client privilege, we can’t explain to the court why our client wanted to remove a juror, nor should we have to reveal those discussions,” she added.

Yet, Moriarty believes the federal courts “are way ahead of us in Minnesota on implicit bias in the court system.”

She cited a 10-minute long video on unconscious bias that is used by the federal district court in Washington state. She has requested that Minnesota judges be allowed to show the video to jurors and others before trial, “but it’s been many months and I’ve heard nothing.”

Her Ramsey County counterpart, James Fleming, said this: “I do not assume just because a juror and client share the same race that makes them predisposed to acquit. In my practice most clients want people like them on the jury so absent a statement that disqualifies a juror outright I am looking for people of color who will understand my client’s circumstance.

“But I am not saying that a circumstance has not existed where a defense attorney may want to exclude a juror because of race,” he added. “I don’t agree with it, but the prosecution has the same right to object to the strike as I do when they strike a person (of) color. I think this is headed to everyone will be losing their strikes in jury selection.”

Washington County Attorney Pete Orput believes the Batson ruling and current Minnesota judicial statutes are more than adequate in addressing all forms of bias in jury selection.

“I’ve never had any big issues with Batson challenges,” Orput, a former criminal trial prosecutor, explained in an email. “I ran into Batson issues more for when the defense tries to strike all women or men such as in a criminal sex case. … Batson is a sensitive issue and gets policed closely in our courts, from my own experience.”

Ramsey County Judge George Stephenson has a different take.

He asked a room full of state and federal judges in Minnesota during a panel discussion on implicit bias a few years ago how many of them were former prosecutors. Dozens of hands went up. He then asked: “How many of you were taught or have heard that in selecting a jury in criminal cases, a prosecutor should strike jurors of color because they favor the defense?”

Dozens of hands started to go up, he recalled.

“Questioning a prosecutor’s challenge to a juror when you believe it is racially motivated is not an easy or comfortable thing for a judge,” Stephenson noted in an email. “It would be easier if you knew the attorney was a flat-out racist but I don’t know any prosecutors like that anymore. Most seem to be good, caring folks interested in protecting the community and doing a good job … it is jarring to them to be challenged on what we perceive as bias.”

He would like to see continuing dialogue on the topic of implicit bias as well as clearer rules or guidelines “that would make it less uncomfortable for judges who are uneasy questioning a prosecutor’s challenge.”

However, the Minnesota Supreme Court has had “no discussions here about changing any of our related rules,” said Kyle Christopher, a spokesperson for the state’s judicial branch. As long as that’s the case, what happened in the state of Washington this month just might stay in Washington for now.