Court to Rule on Jury Exclusions : Curb on Racially Based Peremptory Bans Sought

The Supreme Court, moving to resolve a far-ranging dispute over jury selection, agreed Monday to decide whether the prosecution may exclude prospective jurors from a criminal trial solely because of their race.

The court said that it would review a Kentucky case that could limit sharply the ability of prosecutors to disqualify prospective jurors through peremptory challenges, for which no reason must be stated. The case, to be decided next term, involves an action by the prosecution, but a ruling could affect defense lawyers as well.

Under long-standing court procedures, both the prosecution and the defense generally are given a limited number of such challenges to exercise during jury selection. And both sides, sometimes playing hunches, use them to try to obtain favorable juries. But the process has been increasingly criticized when it has been used in an apparent attempt to exclude jurors because of their race.

Twenty years ago, the justices ruled that a criminal defendant had no constitutional right to question the prosecution’s use of peremptory challenges in any one case. Only if a prosecutor had systematically excluded a particular group in trials over a period of years could impermissible discrimination be shown, they said.

The court has held since that defendants are entitled to a jury reflecting a “fair cross section” of the community--but it has yet to modify its 1965 ruling. Two years ago, the court voted narrowly against reviewing a New York case that raised the issue of racially motivated jury selection. Two of the nine court members wanted to hear the case then--and three others indicated that they favored a review later.

Ruling Under Attack

Meanwhile, the 1965 holding has been under widespread attack, mainly by defense lawyers, on the grounds that showing long-term bias is a nearly impossible task. Some state courts, including the California Supreme Court, have held that bias may be proved in any one trial if the prosecution has excluded all prospective jurors of a particular race and cannot show that there were racially neutral reasons for doing so. But most of the courts that have reviewed the issue have refused to go beyond the justices’ 1965 ruling.

The new case (Batson vs. Kentucky, 84-6263) arose from the conviction of a black defendant by an all-white jury in 1981. James Kirkland Batson was charged with burglary and receiving stolen property in the theft of two purses from a residence in Jefferson County, Ky. The prosecution used four of its six peremptory challenges to disqualify all four blacks called as prospective jurors.

Court Rejected Claim

Batson appealed to the Kentucky Supreme Court, contending that he had been denied his right to trial by an impartial jury. But the state court rejected the claim, resting its decision on the Supreme Court’s 1965 ruling.

In an appeal to the justices, Batson’s lawyers cited conflicting rulings in the lower courts and said that the time was ripe for the high court to curb racially motivated jury selection. Attorneys for the state argued that the very purpose of peremptory challenges was to give both sides latitude to exclude jurors that they feared--but could not prove--might be biased.

State Atty. Gen. David L. Armstrong said in a brief to the court: “Whatever may or may not be the merits of quotas or affirmative actions in regard to such matters as education, public or private employment or housing, they have no place in the system of justice.”