A New York Times editorial points out that lawyers and courts are ignoring the landmark case of Batson v. Kentucky. In Batson the Supreme Court held that peremptory challenges to jurors could not be based upon race.

Yet, according to the Times, prosecutors often challenge African American jurors in death penalty cases who are less likely to vote for the death penalty. In Jefferson Parish, Louisiana African Americans are challenged three times as often as Whites. In Houston County, Alabama 80 percent of the African Americans placed on jury panels in capital cases are subject to peremptory challenges.

If opposing counsel can make a prima facia case to show race-based peremptory challenges the lawyer, and it is not only prosecutors, must give a race-neutral
explanation of the peremptory challenge. One Alabama prosecutor who challenged eleven of fourteen African Americans on a panel gave excuses such as one African American panel member was arrogant and another was not sophisticated enough.

The editorial is based on an excellent report by the Equal Justice Initiative, (EJI) a Montgomery, Alabama based private organization which represents indigent defendants, which reviews the enforcement of Batson in eight Southern states. Among the EJI findings is that the appellate courts in Tennessee have never reversed a conviction for Batson error and that some District Attorney’s teach their deputies how to select jurors based on race and avoid sanctions. Among the recommendations are that courts and bar associations be more vigilant in enforcing Batson and that increased diversity be required among prosecutors, court personnel and defense attorneys.

Justice Thurgood Marshall who wrote a concurring opinion in Batson predicted that prosecutors would come up with excuses and he suggested that we abolish peremptory challenges. By taking the first twelve jurors we would not only abolish race-based challenges but we would speed up trials considerably. Not a bad idea.

The U. S. Supreme Court ruled in Rivera v. Illinois that a trial court’s erroneous denial of a peremptory challenge to a juror is not a violation of Fourteenth Amendment’s Due Process Clause.

In both state and Federal courts the parties are entitled to voir dire jurors. Each side can excuse jurors either for cause or as a peremptory challenge. A challenge for cause occurs when the party believes that the prospective juror is unfit to serve on the jury. This generally occurs when the juror due to preexisting conditions is unable to fairly deliberate and decide the case, For example, in a domestic violence case, some jurors will state during voir dire that they will always side with the woman. Therefore since they are unable to listen to the testimony and impartially decide the defendant’s guilt or innocence a challenge for cause is appropriate.

Generally, each side is also entitled to a limited number of peremptory challenges. In Illinois each side is allowed seven peremptory challenges. Historically peremptory challenges can be made for any reason and the party does not have to explain why it is challenging the individual. However in the 1980’s the Courts limited peremptory challenges by requiring that they not be made for a discriminatory purpose based on race, sex, or ethnicity. The lead Supreme Court case is Batson v. Kentucky

At trial Rivera’s attorney peremptorily challenged Deloris Gomez. The judge erroneously denied the challenge on Batson grounds without saying whether the alleged discrimination was based on sex, race, or ethnicity.

Rivera appealed claiming that he was denied due process because of the erroneous denial of his peremptory challenge. The Supreme Court ruled that the failure to grant a peremptory challenge is not a constitutional error and affirmed the conviction. Since Rivera had a chance to challenge for cause any proposed juror and he did not he received a fair and impartial jury. The Sixth Amendment to the Constitution only guarantees a fair and impartial jury Therefore peremptory challenges are not subject to reversal on Federal appeal.