Oddity in Picking Jurors Opens Door to Racial Bias

By ADAM LIPTAK
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The New York Times
June 4, 2007

Allen Snyder, a black man, is on death row in Louisiana. An all-white jury in Jefferson Parish, in the New Orleans suburbs, sentenced him to death in 1996 for the fatal stabbing of a man his wife was seeing.

It took some work to get an all-white jury in a parish that is almost one-quarter black, but the prosecutors were up to the task. They used peremptory strikes — ones not requiring a reason — to remove all five eligible potential jurors who were black. (Four more blacks were removed for cause, all at the request of the prosecution.)

The purge had a purpose, according to a dissenting justice on the Louisiana Supreme Court, who called for a new trial.

“The prosecutor’s intention to utilize racial bias became crystal clear when he commented during closing argument in the penalty phase that O. J. Simpson ‘got away with it’ in the California verdict that had been rendered shortly before this trial,” the justice, Harry T. Lemmon, wrote.

In Batson v. Kentucky in 1986, the United States Supreme Court tried to put an end to the practice of excluding jurors based on race. The effort has failed, and it is time to consider doing away with peremptory challenges.

In Batson, the court recognized an exception to the general rule that peremptory challenges are completely discretionary. Race, the court said, cannot be the reason.

But all a prosecutor needs to do if challenged by the defense about the rationale for striking a prospective juror is to offer a neutral explanation. That reason, the Supreme Court has said, does not have to be “persuasive, or even plausible.” Here is one reason the court found sufficient: a prosecutor did not care for a potential juror’s long hair, mustache and beard.

That is a very different standard from the one courts use in evaluating requests to remove jurors for cause. If lawyers can persuade a judge that a juror will not be able to hear and weigh the evidence in a case fairly and impartially, that juror ought to be removed.

No one is suggesting changes there. It is peremptory challenges — the ones that do not require a judge’s blessing, the ones that can be based on a hunch — that exist uneasily with the goal of driving racial discrimination from the justice system.

The promise of the Batson case has certainly proved to be an empty one in Jefferson Parish.

According to a 2003 report of the Louisiana Crisis Assistance Center, which studied 390 felony jury trials in the parish from 1994 to 2002, the district attorney’s office used peremptory strikes to remove eligible black jurors three times as often as white ones.

In the two decades since Batson, there have been 20 murder trials in Jefferson Parish that ended in death sentences. Information about the race of the jurors is available in 18 of them.

Because the parish is 23 percent black, according to the 2000 census, you might expect to see about 3 black jurors on each 12-member panel. But of the 18 juries, 10 had no black members. Seven had one. One had two. None had three.

“Not one,” said Richard Bourke, the acting director of the center, “gets to what should be the average.”

From death row, Mr. Snyder has asked the United States Supreme Court to hear his case. It is his second trip to the court, which has already once sent the case back to the Louisiana Supreme Court with the instruction that it take a hard look at how jury selection had been conducted.

The original vote in the Louisiana Supreme Court, in 1999, was 5 to 2 against Mr. Snyder.

The nudge from the United States Supreme Court caused the author of the original decision to switch sides, but the vote in September was still 4 to 3 against Mr. Snyder.

In a brief filed last month, Paul D. Connick Jr., the district attorney of Jefferson Parish, urged the United States Supreme Court to let the latest decision stand. Mr. Connick blandly recited what he called race-neutral reasons for striking every single black potential juror.

The invocation of O. J. Simpson’s acquittal, Mr. Connick wrote of one of the most racially divisive verdicts in the history of American law, “was not racial.”

In 2005, the Supreme Court tried to give Batson some practical force, overturning the conviction of Thomas Miller-El after prosecutors in Texas excluded 91 percent of potential black jurors. “The strikes correlate with no fact as well as they correlate with race,” Justice David H. Souter wrote for the court.

In Mr. Snyder’s case, of course, that number was 100 percent.

In Batson itself, Justice Thurgood Marshall wrote that the decision “will not end the racial discrimination that peremptories inject into the jury selection process.” That goal, he said, “can be accomplished only by eliminating peremptory challenges entirely.”

Two years ago, in the Miller-El case, Justice Stephen G. Breyer appeared to endorse that view, saying that “peremptory challenges seem increasingly anomalous in our judicial system.” Justice Breyer noted that England has eliminated peremptory challenges but “continues to administer fair trials based largely on random jury selection.”

Peremptory strikes are an odd and arbitrary historical artifact. Unlike equal protection, they are not guaranteed by the Constitution, and in capital cases — where race matters most — they would not be missed.