Race and Juries

THE Supreme Court's decision last week on jury selection demonstrates anew how convoluted racial issues in the United States have become. And it shows how courts, in their efforts to create a "color-blind" society, can sometimes tend toward opposite results.

In a case from Georgia, the Supreme Court ruled 7-2 that defendants in criminal trials cannot exercise "peremptory" challenges to keep people off juries on the basis of race. (In most states, both prosecutors and defendants may block a designated number of potential jurors without justifying their opposition; it's recognized that intuition alone may tell a prosecutor or defense lawyer that a given juror won't be impartial.)

The ruling appears to be a logical extension of a series of high-court decisions aimed at eliminating racial bias from trials. Previously the court has ruled that prosecutors may not, in exercising peremptory challenges, discriminate by race - usually to bar black jurors in trials of black defendants. Last year, the justices held that in civil trials neither plaintiffs nor defendants could discriminate in jury selection.

In these earlier cases, the Supreme Court emphasized that the Equal Protection clause of the Constitution grants rights to minority jurors as well as to litigants; the court has further noted that citizens' confidence in the judicial system is undermined by the perception that the outcomes of trials are tainted by racial bias.

The principles enunciated in the earlier cases ring true, so wasn't the court right to apply them to criminal defendants as well as to prosecutors and civil litigants? Alas, no.

In the case decided by the court June 18, white defendants used peremptory challenges against black jurors. But what's far more common is for black defendants to exclude white jurors, in order to get some blacks onto the jury. Under the Supreme Court's new ruling, that practice apparently is unconstitutional. So black defendants could once again find themselves being tried by all-white juries, unless some potential jurors' racism is so blatant that they could be barred "for cause."

There's nothing wrong with giving criminal defendants rights in the use of peremptory challenges not accorded prosecutors. Our system bends over backward to protect defendants in other ways, too, as through the presumption of innocence. In this case, the application of a superficial consistency in judicial thinking may have gravely disadvantaged minority defendants.