In Batson the Supreme Court ruled that it violates the Constitution for race to be a factor in the selection of jurors.

Dennis Paris was convicted of sex trafficking and prostitution related crimes in Connecticut. Prior to jury selection his lawyer announced that he planned to use his peremptory challenges against women since he felt they were less likely to give Paris a fair trial, considering the charges. At trial, after the defense attorney used his first four challenges against women the prosecutor made a Batson challenge. A Batson challenge starts with the opposing lawyer making a prima facie case that a lawyer is using race as a basis for peremptory challenges. Following the Batson challenge the side claiming the peremptory challenge is allowed to offer race-neutral reasons for the challenges. Third considering the totality of the circumstances the judge decides whether the challenged party has met its burden of proof to show that the challenges were not gender based.

The Second Circuit ruled that the use of gender in jury selection, as the Supreme Court ruled in Batson that the use of race in jury selection violates the Equal Protection Clause even if one gender is more likely to give a defendant a better trial than the other gender. According to the Court gender based jury selection hurts not only the parties but it also hurts the jurors and society at large.

A second Batson issue was raised during the trial. The prosecution’s first four peremptory challenges were against men. The defense made a Batson challenge. The Court found that the defense was unable to make a prima facie case. The majority of the members of the venire were men and after the defense excluded seven women the percentage of men on the panel was even greater. Therefore both the trial court and the appellate panel found that due to the high percentage of men left on the panel the defense was unable to make a prima facie case that the prosecution’s challenges were based on gender.

Personally four straight challenges of men seem like a sufficient basis for a prima facie case. It may not be a successful challenge but it should be sufficient to require the prosecution to put forth a gender neutral explanation. While the prosecutor did not announce that he/she was going to attempt to exclude men no one questioned the truth of the defense attorney’s allegation that women were better jurors for his defendant. Thus it is not unlikely that the prosecutor wanted all women on the jury,

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.

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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