As efforts to reform the criminal justice system at the federal level have largely stalled, state policymakers are opening a new front in the fight to reduce bias in the system by aiming to eliminate racial discrimination in jury selection.
On Thursday, a panel of nine White jurors, two Asian jurors and one Black juror found former suburban Minneapolis police officer Kimberly Potter guilty of manslaughter in the killing of Daunte Wright, a 20-year-old Black man, during a traffic stop last spring. The trial was held in Hennepin County, where more than 1 in 3 residents are non-White.
Nearly four decades after the Supreme Court established a precedent meant to eliminate racial discrimination in jury selection, the problem remains widespread, research shows. Most often the practice occurs through a legal tactic called a peremptory challenge, which allows an attorney to strike a potential juror without having to state a reason.
But critics say lawyers have found ways to get around the Supreme Court’s prohibition against discrimination in jury selection by asking potential Black jurors such questions as, “Have you ever had a bad encounter with the police?” If the potential juror says yes, they could be dismissed for perceived bias against police. One study in the Deep South found that Black jurors were being challenged and dismissed at double or triple the rates of other people.
Elisabeth Semel, a director of the Death Penalty Clinic at the University of California Berkeley School of Law, said that the South is no anomaly in this respect.
“In every study that I know of that has been done across the country, looking both in state courts and in federal courts, there has been a universal finding,” Semel said. “The exercise of racially discriminatory peremptory strikes remains an ever present feature of the jury selection system. So you can pick California, you can pick North Carolina, you can pick Connecticut, you can pick the state of Washington, Oregon, on and on. And the results are unremarkably the same.”
The push by states to eliminate racial discrimination in the selection process gained momentum three years ago with action by the Washington Supreme Court and most recently by the Arizona Supreme Court. In 2018, the Washington high court adopted a rule that made it easier for opposing lawyers to challenge a peremptory strike without having to prove intentional discrimination, as is the case under the United States Supreme Court precedent. In 2020, California passed legislation that codified much of Washington’s rule into California law. In September, the Arizona high court abolished peremptory challenges altogether. Meanwhile, the courts in Connecticut and New Jersey are studying the issue.
Research shows that racially diverse juries spend more time deliberating, make fewer errors and can result in fairer trials. But African Americans have been fighting for access to jury boxes for more than 150 years, since the 14th Amendment enshrined Black people’s right to full political participation. A generation later, Congress passed the Civil Rights Act of 1875, which included provisions explicitly outlawing racial discrimination in jury selection. In 1986, the Supreme Court found that discrimination remained pervasive in jury selection.
The reasons behind America’s overwhelmingly white juries are many. The problem begins with the way people are summoned for jury duty, said William Snowden, who founded a nonprofit called the Juror Project after witnessing a lack of jury diversity — in race, ideology, and life experience — as a public defender in New Orleans.
Many places use voter registration files and DMV records to find potential jurors, skewing the jury pool toward people who remain at one address for a long period of time, a group that tends to be more White than the population as a whole. Some jurisdictions also make those with felony convictions ineligible, disproportionately excluding people of color. Experts also note that the juror pay system tends to make jury service impossible for all but those who can afford to miss work.
Potential jurors of color are often eliminated during voir dire, the preliminary examination of jurors by the judge and attorneys to winnow the pool. One of the most typical questions asked of potential jurors in a criminal case where police will testify, for instance, is whether they have ever had a bad experience with police. An honest answer from a Black person is likely to result in dismissal, as research shows African Americans tend to experience negative encounters with law enforcement at a far higher rate than other Americans.
An unexpected spokesperson
Ausha Byng testified before the Washington Supreme Court in 2017, during a symposium on racial bias in jury selection. After two hours of listening intently to legal experts flown in from all over the country, the then-30-year-old mother and accountant told the justices of her experience of being summoned for duty in Renton, Wash.
Byng, who is biracial, recalled for the justices how excited she was when she received her summons in the mail. “Most people get the notices and they don’t want to do it,” Byng testified. “But me, I was excited,” noting how she likes to watch shows like “Law & Order.”
“I want to hear all the pieces of the puzzle and I want to put it together,” she said.
Byng, who was at the time balancing a family with going to college, notified her professors and arranged child care for her infant daughter. She didn’t have a car then, so when the day came, she rode the bus to the courthouse. And then she sat and waited. After lunch, Byng was selected as a potential juror for a drug case against a young Black man.
She said she remembers the prosecutor asked most of his questions to the entire panel of potential jurors but singled her out for one question. He asked her if she trusted the police. Byng, the only person of color in the jury pool, said no. And with that answer, the prosecutor pronounced, “The state would like to thank and excuse juror number five.”
Byng remembers the courtroom falling silent. She could feel everyone’s eyes on her. The judge asked to speak to the attorneys in private. Byng and the other potential jurors were placed in a back room for 30 minutes as the attorneys discussed her dismissal.
“It was long enough for all the other juror prospects to kind of like make fun of me, like what did you do? What did you say?” she recalled in her testimony to the justices. “I was extremely embarrassed. And I felt really excluded because it was very obvious that I was the reason that we all needed to leave.”
When the deliberations concluded, the judge ruled that Byng’s dismissal was legal. Lila Silverstein, an appellate public defender at the Washington Appellate Project, said Byng’s experience isn’t uncommon. Silverstein said prosecutors often use racially neutral questions like “do you trust the police?” as a litmus test for potential jurors of color.
Byng, who was raised by a White mom and Black dad, stands by her answer. Her father’s run-ins with Seattle police provide her with some of her earliest memories, and she’s had her own issues with local police. She said what made her want to testify at the Washington Supreme Court, years after she was dismissed from that jury, was the belief that she shouldn’t have to lie to serve.
“They didn‘t ask me why. They didn’t ask, well, what happened with the police?” Byng said. “They asked me if I could be impartial, and I said yeah. But that wasn’t enough. I’m not going to lie to be on a jury.”
The prosecutor used a peremptory challenge to dismiss Byng. In 1986, the Supreme Court ruled in the case of Batson v. Kentucky that the opposing attorney can object to a peremptory strike but has to show that the dismissal was an act of intentional racial discrimination. Advocates for increasing jury diversity say that bar has proven to be nearly impossible to clear. But in 2018, thanks to Byng and Silverstein’s advocacy, Washington became the first state to adopt rules aimed at eliminating not just intentional, but also implicit, bias in jury selection.
Peremptory strikes are still allowed in Washington but, instead of forcing the objecting attorney to prove that the dismissal was racially motivated, the 2018 change directs judges to ask themselves if they think “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.”
The rule goes on to define an objective observer as someone who “is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington state.” If the judge thinks an objective observer could see race as a factor, they must deny the peremptory strike.
“Anecdotally, we are seeing that lawyers are being much more careful about exercising peremptory challenges to exclude jurors and that judges are sustaining objections to peremptory challenges much more frequently than they did before,” Silverstein said. “On the appellate level, there have been several cases over the last few years where the courts are reversing convictions where lawyers exercised inappropriate peremptory challenges,” she added, noting that in State v. Jefferson, the Washington Supreme Court reversed a murder conviction.
This has been a major shift in Washington, said Silverstein, who added that there had never been a reversal for racial discrimination in jury selection in the state before the new rule, despite the issue being raised more than 40 times since the federal Supreme Court decision in Batson v. Kentucky.
It’s exactly what Thurgood Marshall, the Supreme Court’s first Black justice, predicted would happen when he wrote a concurring opinion in the Batson case. He wrote that lawyers would come up with ostensibly “race neutral” reasons to reject Black jurors and that it would be next to impossible to prove the reason for striking a juror was intentional discrimination.
Semel has documented how states have been curtailing peremptory strikes as part of broader efforts to root out discrimination in the criminal justice system in the wake of the murder of George Floyd and other cases.
In August 2020, she helped spearhead a successful effort to get a version of Washington’s juror selection rules written into California law.
“I‘m being frank and realistic in saying that we had the advantage of the moment,” Semel said. “We got this passed in August 2020, just a few months after George Floyd was murdered, and it was one of several racial justice pieces that passed in the wake of his murder.”
In August this year, the Arizona Supreme Court eliminated peremptory strikes altogether, and lawmakers have introduced bills like Semel’s in several states across the country, including Massachusetts and Mississippi.
For Semel, however, reforming peremptory strikes is only part of the fight.
“This cannot be an isolated remedy,” she said. “We have systematic exclusion from the very beginning of the process all the way through. The unaffordability of jury service is so significant. When you‘re paying jurors $12 or $15 a day, who can possibly sit on a jury for a week and or two or even months? You’re eliminating everyone who isn’t independently wealthy.”
Nearly five years after she testified before the Washington Supreme Court, Byng is still waiting for her chance to serve on a jury. Earlier this year, she received another jury notice but wasn’t picked for a case. Still, she is excited that the issue of racial discrimination in jury selection is getting national attention, especially as she has been reading the news about recent trials like the one for Arbery’s killers.
“Black people are having to stand up for everything and this is just another little circle of everything,” Byng said. “We need to be represented everywhere and we‘ve obviously not being represented on juries ... We have to change that and if we did, I feel pretty sure we’d get better results and better juries.”
Hannah Knowles contributed to this report.