SATURDAY, DECEMBER 25 , 2021. THE WASHINGTON POST EZ RE A
politics & the nation
BY EMMANUEL FELTON
As efforts to overhaul the crim-
inal justice system at the federal
level have largely stalled, state
policymakers are opening a new
front in the fight to reduce bias in
the system by aiming to elimi-
nate racial discrimination in jury
selection.
Some high-profile trials with
nearly all-White juries, including
those of Kyle Rittenhouse in
Kenosha, Wis., and the three men
who chased down and killed
Ahmaud Arbery last year in
Glynn County, Ga., where the
judge had acknowledged that
there appeared to be “intentional
discrimination” in jury selection,
have brought renewed attention
to how America’s juries often do
not reflect their communities.
Nearly four decades after the
Supreme Court established a
precedent meant to eliminate
racial discrimination in jury se-
lection, the problem remains
widespread, research shows.
Most often the practice occurs
through a legal tactic called a
peremptory challenge, which al-
lows an attorney to strike a
potential juror without having to
state a reason.
But critics say lawyers have
found ways to get around the
Supreme Court’s prohibition
against discrimination in jury
selection by asking potential
Black jurors such questions as,
“Have you ever had a bad encoun-
ter with the police?” If the poten-
tial juror says yes, they could be
dismissed for perceived bias
against police. One study in the
Deep South found that Black
jurors were being challenged and
dismissed at double or triple the
rates of other people.
Elisabeth Semel, a director of
the Death Penalty Clinic at the
University of California Berkeley
School of Law, said that the South
is no anomaly in this respect.
“In every study that I know of
that has been done across the
country, looking both in state
courts and in federal courts,
there has been a universal find-
ing,” Semel said. “The exercise of
racially discriminatory peremp-
tory strikes remains an ever pre-
sent feature of the jury selection
system. So you can pick Califor-
nia, you can pick North Carolina,
you can pick Connecticut, you
can pick the state of Washington,
Oregon, on and on. And the
results are unremarkably the
same.”
The push by states to eliminate
racial discrimination in the selec-
tion process gained momentum
three years ago with action by the
Washington Supreme Court and
most recently by the Arizona
Supreme Court. In 2018, the
Washington high court adopted a
rule that made it easier for oppos-
ing lawyers to challenge a pe-
remptory strike without having
to prove intentional discrimina-
tion, as is the case under the
United States Supreme Court
precedent. In 2020, California
passed legislation that codified
much of Washington’s rule into
California law. In September, the
Arizona high court abolished pe-
remptory challenges altogether.
Meanwhile, the courts in Con-
necticut and New Jersey are
studying the issue.
Research shows that racially
diverse juries spend more time
deliberating, make fewer errors
and can result in fairer trials. But
African Americans have been
fighting for access to jury boxes
for more than 150 years, since the
14th Amendment enshrined
Black people’s right to full politi-
cal participation. A generation
later, Congress passed the Civil
Rights Act of 1875, which in-
cluded provisions explicitly out-
lawing racial discrimination in
jury selection. In 1986, the Su-
preme Court found that discrimi-
nation remained pervasive in
jury selection.
The reasons behind America’s
overwhelmingly White juries are
many. The issue begins with the
way people are summoned for
jury duty, said William Snowden,
who founded a nonprofit called
the Juror Project after witnessing
a lack of jury diversity — in race,
ideology, and life experience — as
a public defender in New Or-
leans.
Many places use voter registra-
tion files and DMV records to
find potential jurors, skewing the
jury pool toward people who
remain at one address for a long
period of time, a group that tends
to be more White than the popu-
lation as a whole. Some jurisdic-
tions also make those with felony
convictions ineligible, dispropor-
tionately excluding people of col-
or. Experts also note that the
juror pay system tends to make
jury service impossible for all but
those who can afford to miss
work.
Potential jurors of color are
often eliminated during voir dire,
the preliminary examination of
jurors by the judge and attorneys
to winnow the pool. One of the
most typical questions asked of
potential jurors in a criminal
case where police will testify, for
instance, is whether they have
ever had a bad experience with
police. An honest answer from a
Black person is likely to result in
dismissal, as research shows Afri-
can Americans tend to experi-
ence negative encounters with
law enforcement at a far higher
rate than other Americans.An unexpected spokesperson
Ausha Byng testified before
the Washington Supreme Court
in 2017, during a symposium on
racial bias in jury selection. After
two hours of listening intently to
legal experts flown in from all
over the country, the then-30-
year-old mother and accountant
told the justices of her experience
of being summoned for duty in
Renton, Wash.
Byng, who is biracial, recalled
for the justices how excited she
was when she received her sum-
mons in the mail. “Most people
get the notices and they don’t
want to do it,” Byng testified. “But
me, I was excited,” noting how
she likes to watch shows like
“Law & Order.”
“I want to hear all the pieces of
the puzzle and I want to put it
together,” she said.
Byng, who was at the time
balancing a family with going to
college, notified her professors
and arranged child care for her
infant daughter. She didn’t have a
car then, so when the day came,
she rode the bus to the court-
house. And then she sat and
waited. After lunch, Byng was
selected as a potential juror for a
drug case against a young Black
man.
She said she remembers the
prosecutor asked most of his
questions to the entire panel of
potential jurors but singled her
out for one question. He asked
her if she trusted the police.
Byng, the only person of color in
the jury pool, said no. And with
that answer, the prosecutor pro-
nounced, “The state would like to
thank and excuse juror number
five.”
Byng remembers the court-
room falling silent. She could feel
everyone’s eyes on her. The judge
asked to speak to the attorneys in
private. Byng and the other po-
tential jurors were placed in a
back room for 30 minutes as the
attorneys discussed her dismiss-
al.“It was long enough for all the
other juror prospects to kind of
like make fun of me, like what did
you do? What did you say?” she
recalled in her testimony to the
justices. “I was extremely embar-
rassed. And I felt really excluded
because it was very obvious that I
was the reason that we all needed
to leave.”
When the deliberations con-
cluded, the judge ruled that
Byng’s dismissal was legal. Lila
Silverstein, an appellate public
defender at the Washington Ap-
pellate Project, said Byng’s ex-
perience isn’t uncommon. Silver-
stein said prosecutors often use
racially neutral questions like
“do you trust the police?” as a
litmus test for potential jurors of
color.
Byng, who was raised by a
White mom and Black dad,
stands by her answer. Her fa-
ther’s run-ins with Seattle police
provide her with some of her
earliest memories, and she’s had
her own issues with local police.
She said what made her want to
testify at the Washington Su-
preme Court, years after she was
dismissed from that jury, was the
belief that she shouldn’t have to
lie to serve.
“They didn‘t ask me why. They
didn’t ask, well, what happened
with the police?” Byng said.
“They asked me if I could be
impartial, and I said yeah. But
that wasn’t enough. I’m not going
to lie to be on a jury.”
The prosecutor used a pe-
remptory challenge to dismiss
Byng. In 1986, the Supreme Court
ruled in the case of Batson v.
Kentucky that the opposing at-
torney can object to a perempto-
ry strike but has to show that the
dismissal was an act of intention-
al racial discrimination. Advo-
cates for increasing jury diversity
say that bar has proved to be
nearly impossible to clear. But in
2018, thanks to Byng and Silver-
stein’s advocacy, Washington be-
came the first state to adopt rules
aimed at eliminating not just
intentional, but also implicit,
bias in jury selection.
Peremptory strikes are still
allowed in Washington but, in-
stead of forcing the objecting
attorney to prove that the dis-
missal was racially motivated,
the 2018 change directs judges to
ask themselves if they think “an
objective observer could view
race or ethnicity as a factor in the
use of the peremptory challenge.”
The rule goes on to define an
objective observer as someone
who “is aware that implicit, insti-
tutional, and unconscious biases,
in addition to purposeful dis-
crimination, have resulted in the
unfair exclusion of potential ju-
rors in Washington state.” If the
judge thinks an objective observ-
er could see race as a factor, they
must deny the peremptory strike.
“Anecdotally, we are seeing
that lawyers are being much
more careful about exercising
peremptory challenges to ex-clude jurors and that judges are
sustaining objections to peremp-
tory challenges much more fre-
quently than they did before,”
Silverstein said. “On the appel-
late level, there have been several
cases over the last few years
where the courts are reversing
convictions where lawyers exer-
cised inappropriate peremptory
challenges,” she added, noting
that in State v. Jefferson, the
Washington Supreme Court re-
versed a murder conviction.
This has been a major shift in
Washington, said Silverstein,
who added that there had never
been a reversal for racial discrim-
ination in jury selection in the
state before the new rule, despite
the issue being raised more than
40 times since the federal Su-
preme Court decision in Batson
v. Kentucky.
It’s exactly what Thurgood
Marshall, the Supreme Court’s
first Black justice, predicted
would happen when he wrote a
concurring opinion in the Batson
case. He wrote that lawyers
would come up with ostensibly
“race neutral” reasons to reject
Black jurors and that it would be
next to impossible to prove the
reason for striking a juror was
intentional discrimination.
Semel has documented how
states have been curtailing pe-
remptory strikes as part of broad-
er efforts to root out discrimina-
tion in the criminal justice sys-
tem in the wake of the murder of
George Floyd and other cases.
In August 2020, she helped
spearhead a successful effort to
get a version of Washington’s
juror selection rules written into
California law.
“I‘m being frank and realistic
in saying that we had the advan-
tage of the moment,” Semel said.
“We got this passed in August
2020, just a few months afterGeorge Floyd was murdered, and
it was one of several racial justice
pieces that passed in the wake of
his murder.”
In August this year, the Ari-
zona Supreme Court eliminated
peremptory strikes altogether,
and lawmakers have introduced
bills like Semel’s in several states
across the country, including
Massachusetts and Mississippi.
For Semel, however, reforming
peremptory strikes is only part of
the fight.
“This cannot be an isolated
remedy,” she said. “We have sys-
tematic exclusion from the very
beginning of the process all the
way through. The unaffordability
of jury service is so significant.
When you‘re paying jurors $12 or
$15 a day, who can possibly sit on
a jury for a week and or two or
even months? You’re eliminating
everyone who isn’t independent-
ly wealthy.”
Nearly five years after she
testified before the Washington
Supreme Court, Byng is still wait-
ing for her chance to serve on a
jury. Earlier this year, she re-
ceived another jury notice but
wasn’t picked for a case. Still, she
is excited that the issue of racial
discrimination in jury selection
is getting national attention, es-
pecially as she has been reading
the news about recent trials like
the one for Arbery’s killers.
“Black people are having to
stand up for everything and this
is just another little circle of
everything,” Byng said. “We
need to be represented every-
where and we‘ve obviously not
being represented on juries ... We
have to change that and if we did,
I feel pretty sure we’d get better
results and better juries.”
[email protected]Hannah Knowles contributed to this
report.States take action on racial disparities in jury selection
New rules seek to
eliminate bias as juries
remain mostly WhiteJOVELLE TAMAYO FOR THE WASHINGTON POST
Ausha Byng, who was dismissed as a juror after answering that she did not trust police during the screening, testified before the Washington state high court at a symposium
on racial bias in jury selection in 2017. Washington became the first state to adopt new rules aimed at eliminating not just intentional but also implicit bias in jury selection.STEFANI REYNOLD FOR THE WASHINGTON POST
Research shows that nearly four decades after the Supreme Court established the precedent meant to
eliminate racial discrimination in jury selection, the problem remains widespread across the country.“The exercise of racially
discriminatory
peremptory strikes
remains an ever present
feature of the jury
selection system.”
Elizabeth Semel, director of the
Death Penalty Clinic at University of
California Berkeley School of Law“Most people get the
notices and they don’t
want to do it. But for
me, I was excited.”
Ausha Byng, in her testimony on
racial bias in jury selection