Court Acts to Bar Bias in Jury Selection : Says Panelists Can’t Be Excused Simply on Basis of Their Race

The Supreme Court, in a far-reaching ruling aimed at reducing discrimination in the jury selection process, held Wednesday that the prosecution may not remove prospective jurors simply because they belong to the same race as the defendant.

In a 7-2 decision, the justices significantly limited prosecutors’ ability to use “peremptory challenges”--for which no reason need be shown--to exclude jurors they believe may be hostile to their case.

The court said that if challenged, the prosecution must meet a heavy burden of showing racially neutral reasons for excluding jurors of the same race as the defendant.

The justices took the unusual step of overruling a 21-year-old court precedent which held that a defendant challenging the exclusion of jurors must show a systematic pattern of discrimination that extended beyond his own case.

A ‘Crippling Burden’

The court, in an opinion by Justice Lewis F. Powell Jr., found that the 1965 ruling had placed a “crippling burden of proof” on defendants in such cases--and that the “reality of practice . . . shows that the (peremptory) challenge may be, and unfortunately at times has been, used to discriminate against black jurors.”

“The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community,” Powell wrote.

Justice Thurgood Marshall, in a concurring opinion, said the court had taken “a historic step toward eliminating the shameful practice of racial discrimination in the selection of juries.”

Lawyers in the case said the decision is likely to have wide impact. While some states--including California--have already adopted under state law the requirements the court mandated Wednesday, the majority have continued to adhere to the 1965 ruling.

The court left open the question of retroactive application of the ruling--a factor that could significantly affect the number of new appeals by defendants contending that jurors were improperly removed from their trials. Four justices--one short of a majority--said the ruling should not be applied retroactively.

The justices also left unresolved a similarly important question of whether the Constitution imposes any limit on the exercise of peremptory challenges by defense counsel.

Praise From NAACP

The decision drew immediate praise from Charles Stephen Ralston of the NAACP Legal Defense and Education Fund, one of several civil rights groups involved in the case before the court.

“Excluding jurors because of race has clearly been a widespread practice--and not just in the South,” Ralston said. “Hopefully, today’s decision will go far in finally eliminating all discriminatory practices and ensuring that juries are truly representative of their communities.”

But a Kentucky state attorney who defended the use of peremptory challenges in the case said the ruling could unfairly discourage prosecutors from seeking removal of potentially biased jurors.

‘Artificial Quotas’ Feared

“We’re worried that this may produce artificial quotas in the jury selection process,” said Assistant Atty. Gen. Rickie L. Pearson. “We must respectfully disagree with the court.”

Peremptory challenges have long been used by lawyers as a means of gaining a jury sympathetic--or at least not hostile--to their side. Such challenges are often based on hunches or instincts about prospective jurors, differing from challenges for “cause,” where an attorney must cite a specific reason--such as demonstrable bias--for removing a prospective juror.

In its 1965 ruling in Swain vs. Alabama, the court said that racially based peremptory challenges would violate the equal protection clause of the Constitution only if defendants showed that it had occurred systematically in a series of cases.

An Insurmountable Burden

Over the years, many courts struggled in implementing the 1965 ruling, concerned that it placed an insurmountable burden on defendants. In 1978, the California Supreme Court barred prosecutors from removing jurors on the sole basis of race--and eased the way for defendants to contest peremptory challenges that they believed were racially motivated. Wednesday’s ruling overturned the conviction of James Kirkland Batson, a black defendant charged with burglary in Jefferson County, Ky. Four blacks were called as prospective jurors in the trial and the prosecution used peremptory challenges to remove all four. The Kentucky Supreme Court upheld the conviction and Batson brought his case (Batson vs. Kentucky, 84-6263) to the justices.

Powell said that, while a defendant has no right to a jury that includes members of his own race, the Constitution requires that the state not exclude such jurors on account of race. When a defendant makes a preliminary showing that jurors are being excluded by race, the burden must shift to the prosecutor to make a “reasonable explanation” for his actions, the court said. If discrimination is found, it will be up to the trial judge to order selection of a new jury or to take other steps, the court said.

In a concurring opinion, Justice Byron R. White, who wrote the court’s opinion in the 1965 case, agreed that the decades-old decision should be overruled, noting that the practice of using peremptory challenges to remove blacks appears to “remain widespread.”

Rehnquist, Burger Dissent

In dissent, Justice William H. Rehnquist, joined by Chief Justice Warren E. Burger, called the decision “ill-considered and unjustifiable.” Rehnquist, pointing to the longtime legal acceptance of peremptory challenges, said there is nothing in the Constitution to bar the prosecution from using such challenges to remove blacks from juries involving black defendants, just as whites could be excluded from cases involving whites.

In another ruling involving race in criminal trials, the court, in a 7-2 decision, held that murder defendants facing the death penalty in interracial killings are entitled to question prospective jurors about their views on race.

The justices reversed the death sentence of Willie Lloyd Turner, a black defendant convicted of the murder of a white jewelry store owner in Franklin, Va.