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Arizona is starting a bold new experiment to curb racist beliefs

The Conservative State of Arizona Supreme Court took a surprising move last week that could make juries in that state more racially diverse, making it less likely to treat racially harsh minorities.

It announced that it would eliminate "vital challenges" in Arizona – a practice that enables attorneys to remove jurors from a case, often for arbitrary or unclear reasons.

Although criminal justice reformers, including some who sit in the United States Supreme Court, have warned for decades that judges are often disqualified because of their race, the practice remains widespread in the United States. Arizona will be the first state to completely remove compelling challenges; January the new rules of the country come into force.

People of color are less represented on juries for a variety of reasons – racial minorities, for example, appear less than whites on voter and vehicle registration lists, which many jurisdictions use to build a pool of potential jurors. However, several studies suggest that forced strikes play an important role in the formation of juries that are whiter than the general population.

Typically, in both criminal and civil jury trials, a court will assemble a panel of potential jurors that is much larger than the actual number of jurors required to hear the case. Although the rules vary from state to state (and the federal system has its own rules), attorneys on either side of a case can request the judge to remove a jury "for good cause" if there is any doubt about the impartiality of the jury consists. (For example, a prosecutor may want to expel a juror related to the defendant.)

Compulsory challenges allow attorneys to beat jurors even if they cannot convince the judge for an important reason. Typically, an attorney who removes a juror with a compulsory challenge does not have to explain why they chose to do so and can remove a juror on an arbitrary basis. For example, a lawyer may remove a juror with a compulsory challenge because he does not like the juror's haircut.

The number of compulsory challenges available to attorneys depends on the type of case and the court pending the case. For example, in most federal criminal trials, the prosecution can hit up to six jurors while the defense can hit 10.

There are some constitutional limits to permanent strikes. In particular in Batson v. Kentucky (1986), the court ruled that attorneys should not dismiss a juror on the basis of race and established a three-part test that judges should use to determine if a particular juror was removed on racial grounds.

In practice, however, judges find it difficult to compete on Batson, and it rarely results in racial convictions against a jury being dismissed – although data suggests that racial discrimination against jurors is quite widespread. As two Arizona judges stated in a petition calling on the state's Supreme Court to abolish restraining challenges, “decades of litigation over Batson challenges have consumed countless hours of legal time and legal resources. In Arizona, however, only five cases were reversed due to a Batson challenge. "

Much is at stake if racial minorities are less likely to be on a jury than white Americans. For example, a 2012 study of Florida crime trials found that black defendants were 16 percent more likely to be convicted than white defendants without a black person on the jury. This gap disappears when the jury has a single black member.

The result of the new rules of the Arizona Supreme Court is that racial discrimination through forced strikes will cease in Arizona because forced strikes themselves will cease to exist. But the new rules have also been criticized by prosecutors and at least some defense lawyers for taking away a tool that can potentially be used to weed out biased jurors.

Ultimately, the state Supreme Court appears to have ruled that the benefits of eliminating compelling challenges, including the benefit of eliminating a common vehicle used for racial discrimination, outweigh the risk of some bad jurors staying on juries.

The Compulsory Avoidance Procedure

Urgent challenges go back a long way before the United States. But while the practice in English courts existed for many centuries, English prosecutors were deprived of the ability to carry out compulsory strikes as early as 1305.

Rather, it was a protection afforded to the defendants. As William Blackstone, a famous chronicler of English law, wrote in 1769, out of respect for the principle of "in favorem vitae", the defendants kept an "arbitrary and arbitrary way of contesting a certain number of jurors" before "For Life". The idea was that if the life or liberty of a criminal accused could be placed in the hands of a jury, the accused should have some opportunity to expel jurors who might be biased against them.

American courts, however, have largely failed to follow the centuries-old English practice of only coercive defenders. Typically, federal and state courts in the United States allow prosecutors and defense lawyers to exercise some compelling challenges – although some jurisdictions add additional challenge to the defense.

In fact, compulsory strikes are so widely used by prosecutors and defense lawyers that when courts assemble a pool of potential jurors, they typically summon far more potential jurors than they actually need – because the courts assume that many of those potential jurors do so will be removed either for an important reason or through a compelling challenge.

Batson acknowledged that unconstitutional forcible strikes can be used to dismiss jurors. "Willful racial discrimination in the selection of (potential jurors) violates a defendant's right to equal protection," wrote Judge Lewis Powell for the Batson Court. It also violates the rights of the jurors themselves, who, regardless of race, should have the same opportunities to decide the fate of their colleagues.

But while racially motivated forced strikes under Batson are theoretically unconstitutional, Judge Powell's decision also made it very difficult for the courts to track down discrimination.

If the Batson defendant credibly claims that a juror has been expelled because of the jury's race, prosecutors must “provide a neutral explanation” as to why they decided to expel a particular juror. At this point the judge has to decide who to believe.

One problem with this system is that there are all sorts of legal reasons a prosecutor might want to beat a juror who happens to be a black person. The prosecutor has good reason to believe that the jury has, for example, expressed bias towards the police. Or, they just feel like the juror seemed inattentive during the judge screening process. The constitution prohibits expulsion of a juror because the juror is of a certain race, but it does not prohibit a prosecutor from beating a juror for inattentiveness or skepticism towards the police, even if that juror is also a black person.

Peremptive strikes can be used to remove a juror for completely arbitrary reasons. In Purkett v. For example, Elem (1995), the Supreme Court allowed a prosecutor to beat two black jurors because the prosecutor disapproved of a juror's “long hair” and believed that the “mustaches and beards of both jurors looked suspicious to me. ”

Judges are not mind readers. So, when a judge is confronted with a prosecutor's racially neutral explanation of why they beat a particular juror, there is often no way for a judge to determine that the prosecutor's real motive was racism.

Many prosecutors are even trained to find deliberate reasons for dismissing a jury. In 2004, Texas prosecutors were advised to tell judges that they were disqualifying jurors not because of the race of a particular juror, but because the juror "approved of O. J. Simpson's verdict" or "watched gospel television programs."

The data suggest that racial jury discrimination is widespread, including according to Batson. The Arizona Supreme Court decided to abolish mandatory challenges after two of the state's appellate judges requested it. This petition, co-authored by Judges Peter B. Swann and Paul J. McMurdie, cites several studies suggesting that people of color are unusually likely to be excluded from juries.

For example, a study of capital cases in North Carolina found that prosecutors “were responsible for eliminating 12% of whites who went through the (jury selection) process without being removed (for good reason), and 35% of the blacks who did this. "While" Defense attacks eliminated 35% of whites who were not removed (for good reason) and 3% of blacks ".

A study in Mississippi found that "Black Venire members are 4.51 times more likely than white Venire members to be disqualified from a jury because the charges are challenged unconditionally." And federal data shows that "the proportion of white jurors in criminal matters only deviated from its representation in the population by 3% ”. Meanwhile, "black jurors were 16% underrepresented, Native American jurors were 51% underrepresented, and Hispanic jurors were underrepresented by 21%."

In addition, similar data have been known to the courts for at least the last few decades. In Batson, passed in 1986, Judge Thurgood Marshall wrote a consensual opinion in which he argued that the goal of ending racial discrimination in jury selection "can only be achieved through the complete elimination of overriding challenges."

Marshall cited a number of studies that argued that racial discrimination was ubiquitous in the use of forced strikes, including a study of law enforcement in Dallas that "the chance of a qualified black sitting on a jury is 1 in 10." , compared to 1 to 2 ". for a white man. "

Thirty-five years after Batson, Marshall appears to have been right that Justice Powell's decision did not go far enough if the aim was to prevent racial discrimination in the selection of the jury. The disparities that Marshall warned about in Batson remain widespread.

The new rules in Arizona increase the uncertainty in criminal trials

The main argument for maintaining compulsory challenges is that removing them prevents attorneys from removing jurors who they rightly believe may be biased, even if the juror does nothing suspicious to justify removal for good cause .

Several prosecutors criticized the Arizona Supreme Court move, arguing that in the words of Maricopa County Attorney Kenneth Vick, “it is not realistic to expect a prospective juror to openly admit that he cannot be fair ". Litigation attorneys often pay close attention to a potential juror's body language or other subtle cues when deciding whether to go on a forced strike, rather than relying solely on how the juror will respond to attorneys' questions.

Scott Greenfield, a New York criminal defense attorney, was similarly critical of the new rules in Arizona on his personal blog. Greenfield warned of a situation where a criminal defense attorney "discovers a hint of hatred while (a potential juror) stares at the accused," but the attorney cannot remove that juror as he can no longer perform a coercive strike.

However, there are two reasons to hope that Arizona's experiment to remove imperative challenges will not result in systemic injustices against a defendant. One of these is the recent ruling by the Ramos Supreme Court v Louisiana (2020) which stated that "the right of the Sixth Amendment to a jury trial requires unanimous judgment."

This is not a perfect defense against biased jurors – as Greenfield argues, the "killer-eyed juror" risks getting a juror who is inclined to vote for an acquittal to reverse his or her vote. But the requirement that the convictions be unanimous reduces the ability of a biased juror to influence a judgment towards a conviction.

The other reason to be optimistic that Arizona’s new rules could work is because, while new in the United States, they are in line with rules in other democracies. For example, the UK removed pressing challenges in 1988, and Canada in 2019.

Realistically, we cannot know what effect the new Arizona rules will have until the rules have been in place for some time. But at least Arizona's experiment could teach us whether Justice Marshall was right when he warned that we cannot do away with discrimination in jury selection until we get rid of the overriding challenges.

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