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The outcome of a biased jury could mean the difference between life and death, or freedom and imprisonment, say Miriam Krinsky, Chris Kemitt and Adam Murphy.
Editor's note: Miriam Krinsky is executive director of Fair and Just Prosecution, a national network of elected prosecutors seeking criminal justice reform, and a former federal prosecutor and author of “Change from Within: Rethinking the 21st Century Prosecutor.” Chris Kemmitt and Adam Murphy are attorneys with the NAACP Legal Defense and Educational Fund and regularly litigate jury discrimination cases in state and federal courts. The opinions expressed in this op-ed are their own personal opinions. Read more opinion on CNN.
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Our legal system guarantees that individuals facing criminal charges will be tried by an impartial jury of their peers. Unfortunately, this guarantee is not respected in every case and in every courtroom across the country.
Chandler West, Chan Zuckerber Initiative
Miriam Krinsky
In Alameda County, California, District Attorney Pamela Price recently uncovered evidence that she believes supports allegations of highly problematic discriminatory practices by county prosecutors in California death penalty cases.
U.S. District Judge Vince Chhabria said there was strong evidence that prosecutors had systematically excluded black and Jewish people from jury service for years solely on the basis of their race and ethnicity.
Kiercy Devenney
Chris Kemmitt
Ajani's Husband
Adam Murphy
Judge Price announced in April that he had ordered his office to review all death penalty cases in Alameda County after evidence surfaced in prosecutors' memos about jury selection in a 1995 murder case. Thirty-five are currently under investigation. Price is overseeing the trial of Ernest Dykes, who is currently on death row.
The alleged abuse of so-called “no-charge” excuses highlights discriminatory flaws in our legal system, and it's time for prosecutors to consider whether they should stop using no-charge excuses altogether, rather than simply fixing the problem and its attendant injustices after the fact, as Price has laudably determined.
Jury exclusion allows parties to litigate to exclude potential jurors before trial for reasons other than race, religion, ethnicity or sex.
Though race-based exclusion is expressly prohibited by the Constitution, handwritten notes from a former Alameda County prosecutor in the Dykes case showed what appeared to be egregious discrimination, including the prosecutor calling a black woman “short, fat and a troll.” Notes provided by Price's office to San Francisco public radio and television station KQED also showed a description of another potential juror as “a banker. A Jew?”
According to the district attorney's office, the memos appear to show that previous prosecutors intentionally excluded Jewish and black female jurors from the potential jury pool.
This pattern of discrimination is not unique to Alameda County. The case of Curtis Flowers, an innocent black man wrongfully convicted in Mississippi, is another horrifying example. Over the course of six trials, prosecutors systematically excluded nearly all black jurors (41 of 42) and made clear their intent to select juries made up of individuals that did not reflect the diversity of the community.
Patterns of racial bias in jury selection are deeply ingrained in the U.S. legal system. As detailed in a recent report by the Equal Justice Initiative, a nonprofit that provides legal representation to people who cannot afford legal fees, prosecutors routinely abuse their power to exclude black people, skewing the makeup of juries and undermining the fairness of the legal system.
Strike disparities were found in several states surveyed, including California, Kansas, Louisiana, Mississippi, North Carolina, South Carolina and Pennsylvania.
Additionally, administrative and judicial reports issued in many other states, including Arizona, Connecticut, New York, New Jersey, and Washington, have all acknowledged that racially discriminatory removals continue to occur.
This flaw in our system is not new: In 1986, the U.S. Supreme Court attempted to put a stop to centuries of discriminatory jury selection in Batson v. Kentucky, but prosecutors have successfully circumvented Batson's instructions in the decades since.
One reason is that Batson requires defendants to prove that prosecutors intentionally discriminated on the basis of race, which is difficult to prove and fails to address implicit bias.
It is all too easy for prosecutors to mask their race-based decisions by citing other reasons when asked why they are removing jurors. And in other instances, even well-intentioned prosecutors may make discriminatory decisions when issuing summary removals. Research has demonstrated that bias and reliance on stereotypes are heightened in stressful, fast-paced environments.
Although a defendant's exercise of compulsory power can and should be based on an attorney's objective of finding jurors he or she believes to be sympathetic to their client, the right to use compulsory power in jury selection should not necessarily be a two-way street.
According to professional responsibility rules, prosecutors are classified as ministers of justice and have a special ethical obligation to ensure the fairness of the judicial process and to guarantee the democratic and jury rights of voters. The prosecutor's duty is to seek a fair verdict, not to “win” a conviction at all costs.
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Biased jurors' outcomes can mean the difference between life and death, or freedom and incarceration. They create errors and perpetuate bias against defendants of color, fueling the cycle of wrongful convictions.
Eliminating or abandoning summary prosecutorial challenges would not reduce prosecutors' ability to remove biased jurors, but would remove a tool that perpetuates racism, deprives members of our community of the right to serve on juries, and undermines the integrity of the judicial process.
This is a simple and necessary step towards dismantling systemic racism within our legal system and restoring faith in the pursuit of justice.
