Court hits jury race bias

The jury selection process involves two ways that prospective jurors may be disqualified from service. First, jurors may be dismissed "for cause," meaning there is a legitimate reason they should not sit on that particular jury. For example, if a prospective juror was a friend or neighbor of the victim, that person would automatically be excused from the jury pool.

The second way jurors may be disqualified is through peremptory challenges. In each jury trial, the judge awards both sides a number of peremptory challenges. In effect, each is a free pass to kick anyone off the jury for any reason, except race. The Supreme Court declared in a 1986 case called Batson v. Kentucky that race may not be a factor in jury selection.

But policing that command has been difficult. Because of the murky nature of jury selection strategy and the potentially wide range of reasons behind any particular peremptory challenge, it is often hard to show an improper racial motive.

"This is a turning point in review of Batson claims," says Bernard Harcourt, a law professor at the University of Chicago Law School. "It suggests greater federal review of state decisions."

In Johnson v. California, the high court overturned a state Supreme Court decision upholding a higher standard of proof in cases of alleged bias in jury selection.

Mr. Johnson, who is black, was convicted by an all-white jury of second-degree murder in the killing of the 19-month-old daughter of his girlfriend, who is white. There had been three African-Americans in the initial jury panel, but all three were dismissed through the use of peremptory challenges by the prosecutor.

Johnson's lawyer filed an objection to the dismissal of the three black prospective jurors. He asked the trial judge to require the prosecutor to explain why the three had been dismissed. The trial judge declined to require a response from the prosecutor. Nonetheless, the judge found that nonracial reasons existed to justify the exclusion of the three prospective jurors under peremptory challenges.

Johnson appealed his conviction on grounds that his jury was tainted by unconstitutional racial discrimination that forced blacks off his jury panel. A California appellate court agreed and reversed his conviction.

But the California Supreme Court reinstated the conviction, saying Johnson's lawyer had failed to present enough evidence of racial bias by the prosecutor.

At the center of the case was the issue of how much evidence is enough to trigger a three-part inquiry into alleged racial bias.

"The court did not intend the first step to be so onerous," writes Justice John Paul Stevens for the majority. "A defendant satisfies Batson's first step requirements by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred."

He adds, "California's standard is at odds with the ... inquiry mandated by Batson."

In a lone dissent in the California case, Thomas says the court afforded states flexibility in complying with the dictates of the Batson decision. "California's procedure falls comfortably within its broad discretion to craft its own rules of criminal procedure," he says.

• Linda Feldmann contributed to this report.

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