Why Preventing Jury Selection Bias May Need A Fresh Look

By Emma Cueto | January 5, 2020, 8:02 PM EST

Connecticut is preparing to take a hard look at the long-simmering issue of how bias might affect jury selection, beginning a process that could close loopholes in the law and address concerns that experts have raised for years.

In an opinion handed down on Dec. 24, the Connecticut Supreme Court called for a Jury Selection Task Force and outlined reasons to believe that the current protections against removing potential jurors due to race, which were created by the 1986 U.S. Supreme Court case Batson v. Kentucky , do not go far enough, calling Batson a "toothless tiger."

Under the rules, the justices said, it is easy for prosecutors to simply provide a nonracial reason for why they want to exclude a particular person from a jury, even if the end result excludes most jurors of a particular race. Unless a judge is willing to call the prosecutor a liar — something judges are rarely willing to do without proof — the prosecutor is typically successful, the opinion noted.

Though legal scholars have been concerned about this loophole in the law for decades, the U.S. Supreme Court has not made the standards more exacting and very few states have taken any action to address the issue.

"Reams of paper have been consumed by judicial opinions and law review articles identifying why Batson has been a toothless tiger when it comes to combating racially motivated jury selection," Connecticut Supreme Court Chief Justice Richard A. Robinson wrote in the majority opinion.

He added that "the scale and variety of the potential changes that appear necessary to address the flaws in Batson" made the issue more suitable to a more deliberate approach, such as a task force, than addressing the issue piecemeal through court appeals.

The case that prompted the Connecticut high court to call for a task force involved a black defendant named Evan J. Holmes, who was convicted of felony murder and home invasion in 2013.

During jury selection, prosecutors used a peremptory challenge, in which an attorney can strike a potential juror without proving the juror is unfit, to nix one of four potential black jurors because he indicated he distrusted law enforcement and believed that people were often treated unfairly in the criminal justice system based on race.

Holmes' attorneys objected to prosecutors' attempt to strike the juror, but the judge allowed the peremptory challenge to stand. An appellate court also upheld the decision, saying that distrust of law enforcement is a race-neutral issue and is a valid, nonracial reason for a prosecutor to strike a juror.

The state high court ultimately held that the trial court judge's decision had been in keeping with the law, but outlined numerous concerns with the state of the law in this area.

Under the Batson rules, prosecutors are not allowed to strike potential jurors because of their race. If prosecutors are challenged by the defense, they must justify their decision with a reason that is not connected to race. The judge can reject the reason if it is not reasonable, or if the judge believes that the prosecutor is merely using it as an excuse to cover up a race-based motivation.

However, in essence, this requires a judge to say publicly that a prosecutor is lying.

"The judge really has to find the reason given by the prosecutors to be not truthful in order to sustain a Batson challenge," said Mark Bennett, a retired federal judge who now teaches at Drake University Law School and is the Director of the Institute for Justice Reform & Innovation.

"Particularly in a small jurisdiction where prosecutors routinely practice in front of the same judge or small group of judges, that's pretty difficult for a judge to do unless he or she is really certain," Bennett said.

When he was a judge, he said, it was not uncommon for him to suspect that there might be a racial factor in a prosecutor's peremptory challenges, but he would have no evidence of it.

These dynamics, he said, were part of the reason why Batson has been "a tremendous failure" in combating racist jury selection processes, adding that he supported Connecticut taking look at possible fixes.

Though Batson was issued in the 1980s, most states have not taken steps to address its holes. One notable exception, however, is Washington state, which modified its own rules to allow judges to block a prosecutor's peremptory challenge if "an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge."

Another potential approach could be to reduce the number of peremptory challenges that both sides have.

In a concurrent opinion in the Holmes case, two Connecticut Supreme Court justices advocated for eliminating or reducing peremptory challenges, though the opinion noted that doing away with them entirely would require an amendment to the state constitution.

"Peremptory challenges by their very nature invite corruption of the judicial process by allowing — almost countenancing — discrimination," Justice Raheem L. Mullins wrote in the concurring opinion, which was also signed by Justice Gregory T. D'Auria.

"The credibility and integrity of our system of justice should not tolerate prospective jurors being prevented from serving on juries on the basis of discrimination due to their race, ethnicity, gender or religious affiliation," the opinion continued. "The straightest line to eliminating such discrimination would be to eliminate the peremptory challenge."

The fewer peremptory challenges attorneys have, Professor Jeffrey Bellin of William & Mary Law School told Law360, the less effective the challenges would be in trying to block jurors of a certain race. This in turn would encourage attorneys to use them more selectively and to try strategies that were not race-based.

It might also be advantageous to simply eliminate peremptory challenges altogether, Bellin said, though he noted that such a plan would face intense pushback from both prosecutors and defense attorneys, who both consider peremptory challenges to be an important tactical option.

Both Bellin and Bennett, however, questioned whether the challenges are really as useful as either side imagines.

Bennett said he is not aware of any empirical evidence that attorneys are able to reliably predict which jurors will vote their way. Bellin added often attorneys let stereotypes — about anything from race to occupation to clothing choice — guide their peremptory challenges.

"You don't really know the jurors. You just have a little bit of information," Bellin said, adding that "to use a peremptory strike you have to be making some kind of assumption about them."

Those kinds of judgments, Bellin continued, "are notoriously unreliable."

In its decision last month, the Connecticut high court did not indicate when the task force might officially be created, but said that it would consist of "a diverse array" of people involved in both criminal justice and civil litigation, and that the Chief Justice would form the task force "forthwith." A representative for the high court declined to provide further details.

Connecticut's acting chief state's attorney, John J. Russotto, indicated that he supports the formation of the task force.

"Connecticut prosecutors welcome the opportunity to participate in the meaningful and important work of the Jury Selection Task Force as announced by Chief Justice Robinson in his thoughtful opinion," he said in a statement. "The stated purpose of this task force is to better facilitate the pursuit of justice, which is, in fact, the constitutional mission of the Division of Criminal Justice and fundamental responsibility of all prosecutors."

Counsel for Holmes did not respond to a request for comment.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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