Your jury or mine?

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The Sixth Amendment, while not as glamorous as the First and not as controversial as the Second, may seem one to easily dismiss if you’re not a criminal or part of the legal system. Yet its impact on racial, and arguably social, equality can’t be overstated. The U.S. Constitution guarantees an accused the right to (1) a speedy and public trial (2) by an impartial jury of the state and district where the crime was committed.

In 1985, the Supreme Court of the United States heard a landmark case out of Louisville, Batson v. Kentucky, 476 U.S. 79 (1986) now referred to simply as “Batson.” Mr. Batson, a black man, appeared at his trial for burglary. Prior to swearing in the jury, the judge dismissed certain jurors from serving for cause (a laundry list that automatically disqualifies one from jury service). The prosecution then used its peremptory challenges (or permissive strikes) to dismiss the four remaining black people from the potential jury. The result was an all white jury.

The defense moved to discharge the jury panel based on a violation of the Sixth Amendment right to a jury “drawn from a cross section of the community” and a violation of the equal protection clause of the 14th Amendment, which forbids the state from discriminating against its citizens by a deprivation of due process or what is essentially an unequal application of laws (think same sex marriage and voting rights). The trial court denied the motion to discharge the jury and the all- white jury convicted Mr. Batson.

The U.S. Supreme Court essentially held that while no defendant has a right to a jury composed in whole or in part of his or her race, a prosecutor cannot challenge jurors based solely on race and must present a neutral explanation for its strikes if challenged by the defense as racially motivated. The Supreme Court sent the Batson case back to the trial court because the court failed to require the prosecutor to explain the use of the permissive strikes to remove all black people from the jury.

In 2001, Kentucky Supreme Court Justice Joseph Lambert created the Racial Fairness Commission (RFC) to oversee sentencing, bail, courtroom environment, jury selection and, according to Judge Denise Clayton, a Kentucky Court of Appeals Judge since 2007 and RFC appointee, “the way African Americans are treated in the criminal justice system.”

Clayton said the RFC has been monitoring the diversity of jury pools and has data from “many years at this point” that reveal about 15 percent of black Jefferson county residents are eligible for jury service. Voter registration lists, drivers license lists and income tax filings form the initial pool from which a county draws potential jurors and are supposed to create a “jury drawn from a cross section of the community” so as to not violate equal protection as argued by the defense in Batson.

“What we want to make sure is happening is that every citizen eligible to participate is given the opportunity to do so. Historically, way before Batson, the norm was to exclude them [African Americans] from juries,” Clayton said. But does an all-white jury seated for a black defendant necessarily mean the jury system is biased? “I have said before I don’t think there’s a systemic bias but that doesn’t mean we shouldn’t do more to make sure the system isn’t extending to as many people as possible to serve,” Clayton said.

Can systemic bias be due to the nature of law itself? “One of the inherent problems with the criminal justice system in general and really law is we [lawyers] just want to win,” said local veteran criminal defense attorney Steve Romines.

The exclusion of a juror may not be racially motivated as much as it is based on a desire to win your case, Romines said. “If I’m picking a jury, I don’t try to pick the fairest or smartest 12 people. I want the 12 most predisposed to finding in my favor. In my opinion, you want people on your jury who can put themselves in their [defendants’] position.”

Absent systemic bias, can a judge dismiss a jury panel? “That’s for the people with the higher pay rate” to answer, Judge Clayton said referring to the certification question now pending at the Kentucky Supreme Court. “That’s what people need to understand. If it’s in a judge’s discretion to dismiss a jury panel absent a finding of systemic bias do you want all judges in the Commonwealth to know they have the ability to do it? What one judge does has no bearing on what other judges do. Really people who are concerned about the issue should want the issue to be certified. They should want the Supreme Court to make that decision.” •