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WA State Supreme Court Justices concede bias in jury selection process
by Robert Randle
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In a Tacoma News Tribune, August 2, 2013 article, WA State Supreme Court Justices mention about racial bias in process by which jurors are selected in criminal trials. The Justices acknowledge there is ‘persistent’ racial bias in jury selection but there is no agreement on what the remedy should be. This concern stems from the case of Kirk Saintcalle who was convicted in the murder of Anthony Manzo. Saintcalle complained that the Prosecution struck the only potential black from the jury pool using what is called a “preemptory challenge.” This procedure is used in the court by lawyers to disqualify or exclude someone from serving as a juror because it is believed they would not be impartial. Some of the Justices concede that “race is often a factor . . . when lawyers use their preemptory challenges to dismiss potential jurors from cases.” Justice Steven Gonzales wrote that throughout the state this strategy is based on racial stereotypes and that it is [frequently] invoked to exclude people from jury service strictly based on race. U.S. Supreme Court Justice Stephen Breyer and Gonzales have called for the elimination of preemptory challenges in jury trials, altogether.

WA Supreme Court Justice Charlie Wiggins cited Batson v Kentucky as legal precedent to show that institutional discrimination still exists in jury selection. According to “Wikipedia” this was a case in 1986 where James Kirkland Batson, an African American man, was convicted of burglary and receipt of stolen goods. During the voiere (questioning) of jurors the Prosecution dismissed 4 potential Black jurors and Batson was convicted by an all-White jury. The defendant appealed his conviction to the Kentucky Supreme Court, which affirmed the conviction. That court cited Swain v. Alabama, and held that a defendant alleging lack of a fair cross section must demonstrate “systematic exclusion” of a group of jurors from the panel of prospective jurors. That is, the defendant had to show that not just in his case, but as a process, juries in his community were being constructed so as to not represent a cross section of that community. Batson continued his appeal to the U.S. Supreme Court, which granted Writ of certiorari to decide whether petitioner was tried "in violation of constitutional provisions guaranteeing the defendant an impartial jury and a jury composed of persons representing a ‘fair’ cross section of the community.

In a 7–2 decision authored by Justice Lewis Powell, the Supreme Court ruled in Batson's favor. The court overruled Swain v. Alabama by lowering the burden of proof that a defendant must meet to make a prima facie case of purposeful discrimination. In Swain, the Court had recognized that a "State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause", but that the defendant had the burden of proving a systematic striking of black jurors throughout the county, that is, that the peremptory challenge system as a whole was being perverted. In Batson the court ruled that the defendant could make a prima facie case for purposeful racial discrimination in jury selection by relying on the record only in his own case.

The Court explained:
The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire [jury pool] members of the defendant's race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a “prima facie” showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.
The Court also held that:
• A State denies a black defendant equal protection when it puts him on trial before a jury from which members of his race have been purposely excluded;
• A defendant has no right to a petit jury composed in whole or in part of persons of his own race. [NOTE: Wouldn’t this apply to White people, too?] However, the Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors.

The Sixth Amendment states “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed. . .” It DOES NOT say that you have to be tried by a jury of your peers and the Courts have at times, interpreted this phrase in various ways. Just as important, if not more so is the Fourteenth Amendment, Section 1b, which says, “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Whether the criminal defendant is guilty or not isn’t the issue but rather that the individual receives a fair trial and jurors are not systematically excluded if a racial minority, in a trial involving a person of color.

How would it be if a white criminal defendant faced an all-Black jury, would their attorneys not issue a ‘prima facie’ challenge about the exclusion of white jurors? Well, if it is seen as absurd to have Black jurors deliberate in trials of White people then by the same “equal protection” logic it is even more so for Black criminal defendants to have their fates decided by White people. Is it because Black people cannot understand all the discovery (evidence) and legal arguments between the Prosecution and Assigned Counsel (Defense), or are racial minorities more sympathetic toward criminal behavior? White people are not any more law-abiding, moral, or intelligent than anybody else, so their disproportionate numbers as jurors has to be balanced with inclusion of more non-Whites to bring integrity and respect to the Justice system, as well as the courts that it has never enjoyed in quite some time, or at all; especially from disenfranchised persons of color.

Robert Randle
776 Commerce St #B-11
Tacoma, WA 98402
August 3, 2013

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