How the Arbery trial had an almost all-white jury

The long-standing practice of allowing lawyers to dismiss potential jurors without giving a reason has come under heavy criticism after an almost all-white jury was chosen to decide whether three white men are guilty of murder for having shot and killed Ahmaud Arbery, a black man jogging in a neighborhood in Georgia.

The selection of 11 white jurors and a black man to decide the fate of the three defendants prompted complaints from prosecutors and the victim’s family that the jury selection process was patently unfair.

Even the judge in the case agreed with prosecutors that excluding potential black jurors looked like intentional discrimination. Still, the judge said he had limited power to intervene after defense attorneys gave non-race reasons for removing jurors.

The lawsuit has drawn new attention to a growing debate and movement in the United States to eliminate “peremptory challenges,” which allow lawyers to summarily remove jurors. Critics say the practice is fraught with prejudice and creates racially lopsided juries that make it harder to achieve equal justice.

HOW DO STRIKES WORK?

During jury selection, the defense and prosecution each get a number of peremptory challenges, or strikes, that allow them to fire potential jurors without explanation.

Lawyers can also seek the removal of a potential juror for cause if they believe that person is biased or lacking the capacity to serve, although they must explain the potential bias.

Yet the United States Supreme Court has ruled that peremptory strikes cannot be used to fire jurors solely on the basis of their race. If a judge authorizes the challenge of a peremptory strike, the lawyer who wishes to remove a juror must propose a reason “without distinction of race”.

But critics say lawyers can get away with abusing peremptory challenges as long as they provide a reason unrelated to race. They also say that a 1986 United States Supreme Court ruling governing the practice failed to end discrimination in trials.

CHANGE IS HAPPENING

Across the country, courts are starting to change the rules to prevent the unfair exclusion of potential jurors on the basis of race or ethnicity.

The Washington Supreme Court did so in 2018, stating that judges do not have to seek intentional discrimination to deny a peremptory challenge, and that challenges based on “implicit, institutional and unconscious bias” can be dismissed.

The court also said some justifications for dismissing potential jurors – mistrust of the legal system and knowledge of someone who has been convicted of a crime – are invalid.

In 2020, California adopted a similar set of invalid justifications for peremptory strikes. The rule changes will begin to apply to criminal trials next year and in 2026 for civil trials.

Two months ago, the Arizona Supreme Court announced it was eliminating peremptory strikes effective January 1.

The two-state Court of Appeals judge who proposed the change said it was “a clear opportunity to put an end to one of the most obvious sources of racial injustice in the courts for good. “.

In Arizona, Pima County Public Defender Joel Feinman said he has not seen prosecutors in his jurisdiction use peremptory challenges in a racist manner, but acknowledges the practice has led to lopsided racist juries in other communities.

While eliminating peremptory challenges will help prevent racial disparities in trials, Feinman said the move also comes with a downside: it will be more difficult to keep people who hide their biases – such as strong support for the enforcement. of the law – out of a jury.

“It’s a double-edged sword,” Feinman said.

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About Norman Griggs

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