Diversity in the Jury Box

Race shouldn't enter into decisions affecting people's ability to serve in important positions in society. But sometimes it's hard to keep it out.

Consider the selection of juries. In 1986, the US Supreme Court held: "Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice."

Before that, such reasoning had been primarily applied to the composition of jury pools, from which 12-person panels are chosen. But the '86 decision said the same principle applies to final jury selection as well. It forbade prosecutors from eliminating jurors solely on account of their race.

Then how do you explain a case last spring involving a black murder defendant in Washington, D.C., whose fourth retrial ended in a fourth hung jury and final dismissal of the case? At every step, the prosecution used its "peremptory strikes," by which a certain number of prospective jurors can be summarily removed, almost entirely against African-Americans.

The defendant's lawyer used her peremptory strikes just as consistently against whites.

Such practices are common. Lawyers want a sympathetic jury. The long tradition of peremptory strikes allows prosecutors and defense counsel to dismiss some potential jurors, often 12, without stating a reason. They go on instinct and probability. Few would admit that race underlies their decisions, but when you're looking for jurors whose life experience may sway them one way or the other, race can be hard to ignore.

Yet assumptions based on race - that blacks, for instance, will be sympathetic toward a defendant of their own race - often don't hold. Much depends on the facts of the case and the integrity of the individual juror.

Some critics of the system have called for the end of peremptory strikes. But would justice really be better served if lawyers were unable to use this form of discretion? Sometimes it's the best way to remove people whose temperament or attitude seem ill-suited for a jury.

The high court's standard is that juries should reflect the communities from which they're drawn. That's part of assuring a defendant an "impartial jury," as the Constitution requires.

Jury pools should be as inclusive as possible, and prosecutors and trial lawyers should guard against acting on racial stereotypes, in order to come closer to the constitutional ideal.