Connecticut Judge Calls for Reduced Use of Peremptory Strikes in Jury Selection

George F. Porter was a Texas community college president who had twice been summoned to jury service in Dallas and summarily sent home because he was black. When he was called a third time, in September 1938, he decided enough was enough. After refusing to leave, Porter was thrown down the courthouse steps by two thugs. He picked himself up, pushed his way through a crowd of angry white men and sprinted to the courtroom. He never did get to sit on that jury, but his story made national news, and a young NAACP lawyer took notice. His name was Thurgood Marshall. Just a few weeks after Marshall visited, the offending judge impaneled a black juror. 

Amid nationwide outrage over the treatment of African-Americans at the hands of violent police officers, it is easy to overlook another racial justice issue that has been simmering beneath the surface — the unfair exclusion of blacks from jury service. In Connecticut, concrete steps are being taken to investigate this problem and devise solutions.

People who are understandably cynical about the ability of the courts, and the criminal justice system, to diagnose its own shortcomings and take remedial steps to ensure more fairness should take heart from what is happening in our state.

The problem is complicated and there is no easy solution, but it is being repeated in state and federal courts around the nation. Lawyers picking a jury are permitted to exercise two types of challenges to remove jurors from sitting. Challenges “for cause” are used to excuse jurors whose views categorically prevent them from being fair jurors — for example, a juror who thinks that anyone who has been arrested must be guilty. Judges must approve challenges for cause.

“Peremptory challenges,” on the other hand, can be used by lawyers to excuse jurors for more subjective reasons based on gut instinct. For example, a lawyer might seek to peremptorily challenge a juror because he thinks something in the juror’s background — say, they are married to a police officer or a criminal defense lawyer — leads the lawyer to think they could not be fair to his or her client, even if they say they could. A lawyer can generally exercise a peremptory challenge without the approval of the court.

Concerned about the use of peremptory challenges for improper racial reasons, the United States Supreme Court in the 1986 case of Batson v. Kentucky devised a procedure to ensure that lawyers — typically prosecutors — were not using pretextual reasons to challenge jurors when the real reason was impermissible, for example, based on the juror’s race, religion or ethnicity.

The problem arises when prosecutors use peremptory challenges to excuse black jurors — or other minority jurors — whose life experiences provide the prosecutor with a nominally non-pretextual reason to exercise a peremptory challenge, even when the reason is based on the prospective juror’s widely-shared, reasonable life experience. The classic case would be one in which a hypothetical black juror promises under oath that he could be fair to the state in a criminal prosecution but also testifies during the questioning process that he has been stopped for “driving while black,” or that he has a nephew who is doing time for dealing drugs, or that he is afraid of getting shot while jogging or driving in a white neighborhood.

Prosecutors can argue, as a matter of logic and not because of any overt racism — although subtle or implicit bias may be at play — that the juror might be predisposed to be unduly sympathetic toward the defendant, because even if they deny it, such jurors might be tempted to penalize the prosecution because of their own mistreatment by police authorities and distrust of the criminal justice system.

And there is the conundrum. By permitting peremptory challenges to be exercised in these situations as they typically do, the courts are allowing large numbers of perfectly capable jurors, who have widely-shared, factual, experience-based views, to be excluded from jury service. While accurate statistics do not exist, this unquestionably results in the under representation of African-Americans on juries. This in turn raises questions whether black defendants are being judged by their peers — all of their peers.

To put it another way, African-Americans who have developed a healthy skepticism about the way they are treated and who honestly voice this while being questioned for jury service can be peremptorily challenged and excused. This is a not so subtle way of punishing the victim, is an affront to them, and presents an intolerable, illogical situation for a criminal justice system that must strive to be fair to all stakeholders.

Connecticut’s chief justice, Richard A. Robinson, has tackled this problem head-on by appointing a broad-based task force to evaluate this and other issues of racial fairness in the jury selection process. There are solutions to this discrete, clearly identifiable but knotty problem, which the task force will be asked to analyze carefully and debate vigorously. This problem is flying under the radar in light of other more dramatic and highly-publicized issues such as the death of black men at the hands of police, which is setting American cities ablaze in the aftermath of the sickening, shocking death of George Floyd.

But at the heart of any fair criminal justice system lies a fair trial process, one that must also be perceived to be fair if it is to earn the public’s respect. The problem of the indiscriminate use of peremptory challenges to keep African-Americans off juries is an urgent one. It is time for scholars, judges, prosecutors, defense lawyers, criminologists, and legislators all around the country to turn their attention to this gaping injustice with the sense of urgency it deserves.

Douglas S. Lavine is a retired Connecticut judge having served for 27 years, the last 14 on the Connecticut Appellate Court. He is also a former federal prosecutor.