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The Unconstitutionality of Discriminatory Jury Selection
The foundation for an analysis of the right to be a juror, or be tried by a jury of peers is securely rooted in the Sixth and Fourteenth Amendments of the U.S. Constitution. The Sixth Amendment prohibits any substantial under-representation of minorities. The Equal Protection Clause of the Fourteenth Amendment prohibits discrimination in jury selection.
American law has long held that the exclusion of persons from juries because of race is unconstitutional both to the person excluded and the person standing trial (see Ex Parte Commonwealth of Virginia, 100 US 339, 25 L.Ed 676 (1880) and Strauder v. West Virginia, 100 US 303 (1880)). In Ex Parte Virginia, supra, the U.S. Supreme Court upheld the imprisonment of a circuit court judge who was found to be excluding persons of African descent from jury duty.
In Carter v. Jury Commission, 90 S.Ct 518 (1970) and Turner v. Fouche, 90 S.Ct 532, black citizens brought civil rights lawsuits because they had been excluded from jury duty through unconstitutional jury selection procedures. A citizen has a constitutional right to participate in the administration of justice through sitting on juries. Any person who is denied this right because of race may bring a civil rights action for monetary and declaratory relief.
A convicted person must overcome several obstacles in order to prove a claim of jury discrimination in either a lawsuit or on direct appeal of a conviction. Federal courts will almost always dismiss a prisoner's 42 USC §1983 lawsuit against state judges and jury commissioners who are claimed to operate a discriminatory jury selection process. The federal court will usually rule that the lawsuit is actually an attack on your state conviction, and will require you to exhaust the state appellate process.
If you are appealing your conviction on the basis of jury discrimination, you must also overcome some hurdles. The first hurdle thrown in your path is: was the issue properly raised and preserved at the trial level? The second hurdle is having the resources and tenacity to stick with it long enough to obtain the necessary jury records and other evidence of minorities being excluded from the county's jury pool.
The law does not require that you get "so many blacks" or "so many whites" on your jury. The Constitution and the law only require that the selection process is not one that intentionally excludes or discriminates.
Most cases alleging discrimination in jury selection are not lost due to lack of supporting law. The law in this field is firm. Most claims are lost from inability to get the records necessary to support the claim. Even though the jury commission records are public information, very few lawyers are going to buck the system and open this can of worms for you. Your best bet is a private investigator, or work on it as a project with a friend or family member on the outside who can access the records.
Start your studies with Castaneda v. Partida, 430 US 460, 97 S.Ct 1272 (1977). This leading case will not only show you what the legal requirements are for bringing and proving your claim, but also what records you'll need to prove your claim.
In order to show an equal protection violation, you must show: (A) that the procedures employed resulted in substantial under-representation of his/her race, or other group to which they belong; (B) Establish that the group is one that is a recognizable, distinct class singled out for different treatment under the law..., as written, or as applied; (C) The degree of under-representation must be proved. A disparity is proved by producing jury records and other evidence that show the actual number of minorities (or other recognizable, distinct class) appearing on juries--over a number of years--is disproportionate to the number within the community as a whole.
U.S. census and county census reports will help provide you with the number of minorities living in your county over the years. The jury records will show how many minorities actually served on juries over the years. The comparison will help to establish if the percentage of minorities who actually served on juries is disproportionate to the percentage of minorities living in the county.
Your search should also take a look into the county's jury computer system. Some jury computers don't entirely erase minorities from the list. Instead, the computer is programmed to automatically send most minority jurors to district court or municipal courts where they sit in traffic court cases, but rarely make it to criminal trials in circuit court. Check also to see if potential jurors are mailed questionnaires and if minorities are excluded from those mailings. Get a map of the county's political districts. Color-code the areas where minorities predominately live. Compare the addresses of persons who have served on juries over the years to see how many were from minority districts. Contact the National Center For State Courts in Williamsburg, Virginia. The Center keeps track of jury data throughout America.
The state is not going to allow you to prove your case on speculation. You are going to have to come to court with proof in hand. It takes a lot of painstaking work. The same evidence that will prove your claim may also help to free hundreds of other prisoners. The state will make every effort to prevent the exposure of a racist jury selection scandal. [Editor's Note: See the accompanying article about measures taken against the author by the state of Michigan.] The state does not want to deal with the flood of lawsuits, appeals, and retrials that would follow a successful challenge to their jury selection system.
One other thing bears mention. You don't have to be black, or a minority to bring a claim of exclusion of minorities from jury duty in your state or county. The courts have consistently ruled that a white person is harmed as much as any other if minorities are intentionally excluded from jury lists, panels, or his jury trial. See: Powers v. Ohio, 111 S.Ct 1364 and Peters v. Kiff, 407 U.S. 493, 92 S.Ct 2163, for two of the leading cases where white prisoners have won reversals because of the exclusion of black jurors.
I purposely did not discuss Batson v. Kentucky, 476 U.S. 79, 106 S.Ct 1712 (1986), although it bears reading, because Batson's focus is mainly on the prosecutor using preemptory challenges to remove the few blacks that are left at the trial stage. My intent was not to focus on those few token blacks, but to inquire into the absence of thousands of blacks and minorities who were never put on the jury list in the first place.
[Editor's Note: For further analysis of this issue, see: Mitchell v. Morgan, 844 F. Supp 398 (MD TN 1994) which was reported in the July 1994 issue of PLN (Vol. 5, No. 7) in an article entitled Prisoners Have Right to Jury From Community.]
American law has long held that the exclusion of persons from juries because of race is unconstitutional both to the person excluded and the person standing trial (see Ex Parte Commonwealth of Virginia, 100 US 339, 25 L.Ed 676 (1880) and Strauder v. West Virginia, 100 US 303 (1880)). In Ex Parte Virginia, supra, the U.S. Supreme Court upheld the imprisonment of a circuit court judge who was found to be excluding persons of African descent from jury duty.
In Carter v. Jury Commission, 90 S.Ct 518 (1970) and Turner v. Fouche, 90 S.Ct 532, black citizens brought civil rights lawsuits because they had been excluded from jury duty through unconstitutional jury selection procedures. A citizen has a constitutional right to participate in the administration of justice through sitting on juries. Any person who is denied this right because of race may bring a civil rights action for monetary and declaratory relief.
A convicted person must overcome several obstacles in order to prove a claim of jury discrimination in either a lawsuit or on direct appeal of a conviction. Federal courts will almost always dismiss a prisoner's 42 USC §1983 lawsuit against state judges and jury commissioners who are claimed to operate a discriminatory jury selection process. The federal court will usually rule that the lawsuit is actually an attack on your state conviction, and will require you to exhaust the state appellate process.
If you are appealing your conviction on the basis of jury discrimination, you must also overcome some hurdles. The first hurdle thrown in your path is: was the issue properly raised and preserved at the trial level? The second hurdle is having the resources and tenacity to stick with it long enough to obtain the necessary jury records and other evidence of minorities being excluded from the county's jury pool.
The law does not require that you get "so many blacks" or "so many whites" on your jury. The Constitution and the law only require that the selection process is not one that intentionally excludes or discriminates.
Most cases alleging discrimination in jury selection are not lost due to lack of supporting law. The law in this field is firm. Most claims are lost from inability to get the records necessary to support the claim. Even though the jury commission records are public information, very few lawyers are going to buck the system and open this can of worms for you. Your best bet is a private investigator, or work on it as a project with a friend or family member on the outside who can access the records.
Start your studies with Castaneda v. Partida, 430 US 460, 97 S.Ct 1272 (1977). This leading case will not only show you what the legal requirements are for bringing and proving your claim, but also what records you'll need to prove your claim.
In order to show an equal protection violation, you must show: (A) that the procedures employed resulted in substantial under-representation of his/her race, or other group to which they belong; (B) Establish that the group is one that is a recognizable, distinct class singled out for different treatment under the law..., as written, or as applied; (C) The degree of under-representation must be proved. A disparity is proved by producing jury records and other evidence that show the actual number of minorities (or other recognizable, distinct class) appearing on juries--over a number of years--is disproportionate to the number within the community as a whole.
U.S. census and county census reports will help provide you with the number of minorities living in your county over the years. The jury records will show how many minorities actually served on juries over the years. The comparison will help to establish if the percentage of minorities who actually served on juries is disproportionate to the percentage of minorities living in the county.
Your search should also take a look into the county's jury computer system. Some jury computers don't entirely erase minorities from the list. Instead, the computer is programmed to automatically send most minority jurors to district court or municipal courts where they sit in traffic court cases, but rarely make it to criminal trials in circuit court. Check also to see if potential jurors are mailed questionnaires and if minorities are excluded from those mailings. Get a map of the county's political districts. Color-code the areas where minorities predominately live. Compare the addresses of persons who have served on juries over the years to see how many were from minority districts. Contact the National Center For State Courts in Williamsburg, Virginia. The Center keeps track of jury data throughout America.
The state is not going to allow you to prove your case on speculation. You are going to have to come to court with proof in hand. It takes a lot of painstaking work. The same evidence that will prove your claim may also help to free hundreds of other prisoners. The state will make every effort to prevent the exposure of a racist jury selection scandal. [Editor's Note: See the accompanying article about measures taken against the author by the state of Michigan.] The state does not want to deal with the flood of lawsuits, appeals, and retrials that would follow a successful challenge to their jury selection system.
One other thing bears mention. You don't have to be black, or a minority to bring a claim of exclusion of minorities from jury duty in your state or county. The courts have consistently ruled that a white person is harmed as much as any other if minorities are intentionally excluded from jury lists, panels, or his jury trial. See: Powers v. Ohio, 111 S.Ct 1364 and Peters v. Kiff, 407 U.S. 493, 92 S.Ct 2163, for two of the leading cases where white prisoners have won reversals because of the exclusion of black jurors.
I purposely did not discuss Batson v. Kentucky, 476 U.S. 79, 106 S.Ct 1712 (1986), although it bears reading, because Batson's focus is mainly on the prosecutor using preemptory challenges to remove the few blacks that are left at the trial stage. My intent was not to focus on those few token blacks, but to inquire into the absence of thousands of blacks and minorities who were never put on the jury list in the first place.
[Editor's Note: For further analysis of this issue, see: Mitchell v. Morgan, 844 F. Supp 398 (MD TN 1994) which was reported in the July 1994 issue of PLN (Vol. 5, No. 7) in an article entitled Prisoners Have Right to Jury From Community.]
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