Tag: jury

Racial Bias in Jury Selection Punished (SCOTUS)

On 21 June 2019, the US Supreme Court ruled 7-2, in the case of Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), that a persistent use of peremptory challenges to remove black jurors during a series of trials against Curtis Flowers violated his rights under the Equal Protection Clause of the 14th Amendment as explained in Batson v. Kentucky, 476 U.S. 79 (1986). The only African-American on the bench, Justice Thomas, dissented.

Curtis Flowers was accused of four murders in a furniture store in Winona, Mississippi in 1996. Altogether, he had six separate jury trials. The first three ended with convictions which were later overturned by the Mississippi Supreme Court on the grounds of prosecutorial misconduct. During these, no African-American sat on the jury despite the fact that the population distribution near Winona was approximately 50% African-American. Next two ended with a mistrial due to hung juries. The sixth trial was held in 2010. During the voir dire procedure proceeding the trial, the prosecution used peremptory challenges to dismiss five African-American jurors, leaving only one African-American on the jury. This trial ended with a conviction and the death sentence. Flowers appealed to the Mississippi Supreme Court arguing that the use of peremptory challenges to dismiss African-American jurors violated his rights under the Equal Protection Clause of the 14th Amendment as explained in Batson v. Kentucky, 476 U.S. 79 (1986). The conviction was upheld and Flowers petitioned the US Supreme Court to hear his case.

Peremptory challenges allow attorneys from both sides to dismiss potential jurors during the voir dire procedure proceeding a trial without stating a reason. Usually, both side have a certain number of such strikes which varies form one State to another. Peremptory challenges come on top of challenges for cause which allow attorneys to dismiss any number of jurors suspected of bias. In Batson v. Kentucky, 476 U.S. 79 (1986), the US Supreme Court ruled that the prosecutor could not use peremptory challenges to exclude jurors based solely on their race as this practice violated the Equal Protection Clause of the 14th Amendment.

The Majority opinion in Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), written by Justice Kavanaugh, and joined by Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan and Chief Justice Roberts, pointed to “four critical facts, [which] taken together, require reversal“:

“First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court… Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.” [pp2-3]

As to the importance of each fact, the Court held that:

“We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not “motivated in substantial part by discriminatory intent.”  [p3]

In issuing its verdict, the Court felt that it was not doing anything beyond applying the holding of Batson v. Kentucky, 476 U.S. 79 (1986):

In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case.” [p3]

The Majority opinion also briefly analysed the historical relationship between the Equal Protection Clause of the 14th Amendment and the right to serve in juries. This included, apart from the 14th Amendment itself, the judgment in the Slaughter-House Cases, 16 Wall. 36, 71 (1873), the Civil Rights Act of 1875 and the judgments in Strauder v. West Virginia, 100 U. S. 303 (1880)Brown v. Board of Education, 347 U. S. 483 (1954) and Swain v. Alabama, 380 U. S. 202 (1965).

Then, the Majority opinion summarised the main principles established by Batson v. Kentucky, 476 U.S. 79 (1986):

“First, the Batson Court rejected Swain’s insistence that a defendant demonstrate a history of racially discriminatory strikes in order to make out a claim of race discrimination…
Second, the Batson Court rejected Swain’s statement that a prosecutor could strike a black juror based on an assumption or belief that the black juror would favor a black defendant…
Third, the Batson Court did not accept the argument that race-based peremptories should be permissible because black, white, Asian, and Hispanic defendants and jurors were all “equally” subject to race-based discrimination…
Fourth, the Batson Court did not accept the argument that race-based peremptories are permissible because both the prosecution and defense could employ them in any individual case and in essence balance things out…” [pp13-15]

The Court also listed the types of evidence which could be relied on by the Defendant when bringing a Batson challenge: 

  • “statistical evidence about the prosecutor’s use of peremptory strikes against black prospective jurors as compared to white prospective jurors in the case;
  • evidence of a prosecutor’s disparate questioning and investigation of black and white prospective jurors in the case;
  • side-by-side comparisons of black prospective jurors who were struck and white prospective jurors who were not struck in the case;
  • a prosecutor’s misrepresentations of the record when defending the strikes during the Batson hearing;
  • relevant history of the State’s peremptory strikes in past cases; or
  • other relevant circumstances that bear upon the issue of racial discrimination.” [pp16-17]

Based on the history of Flowers’s case and the holding in Batson v. Kentucky, 476 U.S. 79 (1986), the Majority opinion held that the prosecution had not given sufficient race-neutral reasons to justify the exclusion of the five African-American jurors during Flowers’s 6th and final trial. This led the Court to conclude that his rights under the Equal Protection Clause of the 14th Amendment were violated and the conviction had to be reversed.

Interestingly, Justice Thomas, the only African-American on the bench, dissented arguing that the Court “almost entirely ignores—and certainly does not refute—the race-neutral reasons given by the State for striking [five] black prospective jurors” in Flowers’s final trial [p2]. Justice Thomas claims that the Court “never should have taken this case” because it did not present any real question of law and the Court only wanted to “reconsider the factual findings of the state courts” [p4]. He also points to a bigger picture – the Majority opinion in Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), and its effect on Batson v. Kentucky, 476 U.S. 79 (1986), will make it “impossible to exercise a peremptory strike that cannot be challenged by the opposing party, thereby requiring a ‘neutral’ explanation for the strike. But requiring an explanation is inconsistent with the very nature of peremptory strikes.” [p40].

Justice Thomas finishes his Dissenting opinion with his own views on peremptory challenges:

In sum, as other Members of this Court have recognized, Batson charted the course for eliminating peremptory strikes… Although those Justices welcomed the prospect, I do not. The peremptory system ‘has always been held essential to the fairness of trial by jury’.” [p40]

It seems that Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019) was as much about a racial bias in the jury selection as it was about the nature and place of peremptory challenges in today’s criminal justice system.

Trial with no Jury Upheld (UKSC)

On 6 June 2019, the UK Supreme Court ruled, unanimously, in the case of In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland) [2019] UKSC 26, that trials with no juries could continue for terrorism-related offences committed in Northern Ireland during the Troubles. The Court held that juries were neither indispensable for securing a fair trial, nor required under the European Convention on Human Rights.

Trials with no juries were introduced in Northern Ireland by the Northern Ireland (Emergency Provisions) Act 1973 in response to a report prepared in 1972 by Lord Diplock. They came to be known as Diplock trials and continued until 2007. Diplock trials were meant to ensure that defendants guilty of terrorism-related offences could not escape punishment because of biased juries. In 2007, the Justice and Security (Northern Ireland) Act 2007 effectively abolished Diplock trials but allowed the Director of Public Prosecutions for Northern Ireland to bring back this mode of trial on an exception basis.

Under section 1 of the the Justice and Security (Northern Ireland) Act 2007, a trial without a jury can take place where “there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury” (s1(2)(b)), “the offence or any of the offences was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons” (s1(6)) and there is no evidence of bad faith or dishonesty (s7(1)(a)&(b)). Such a trial also cannot violate the defendant’s right to a fair trial under Article 6 of the European Convention on Human Rights (s7(2)).

The Applicant in In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland) [2019] UKSC 26, Mr Hutchings, commanded a patrol of Life Guards regiment of the British Army in 1974 which routinely engaged in combat against the Provisional Irish Republican Army. On 15 June 1974, a Life Guards patrol encountered a man, Mr Cunningham, who seemed startled and, seeing the patrol, climbed a gate into a field and started running away. Mr Hutchings, together with two other members of the patrol, pursued the man and after shouting a number of commands to stop, Mr Hutchings and another soldier fired shots at Mr Cunningham who, as a result, was killed. Subsequently, it turned out that Mr Cunningham had limited intellectual capacity, was unarmed and was running towards his home.

In 2015, following a review, Mr Hutchings was charged with the attempted murder and the Director of Public Prosecutions for Northern Ireland certified his case under section 1 of the the Justice and Security (Northern Ireland) Act 2007 as appropriate for a trial without a jury. Mr Hutchings filed a Judicial Review challenging this decision and the case eventually reached the Supreme Court.

On the relationship between a fair trial and juries, the Supreme Court ruled:

“34. It is important to focus on the need for a fair trial. Trial by jury is, of course, the traditional mode of trial for serious criminal offences in the United Kingdom. It should not be assumed, however, that this is the unique means of achieving fairness in the criminal process. Indeed, as the Court of Appeal’s statements in Jordan show, trial by jury can in certain circumstances be antithetical to a fair trial and the only assured means where those circumstances obtain of ensuring that the trial is fair is that it be conducted by a judge sitting without a jury.

“35. So-called Diplock trials took place in Northern Ireland between 1973 and 2007. No one suggests that this mode of trial failed to deliver fairness of process, by reason of the fact that the trial took place before a judge sitting without a jury. Although Article 6 of ECHR (which guarantees a right to a fair trial) is not prayed in aid by the appellant in this case, it is interesting to reflect that it has been held that this article does not require trial by jury. As the European Commission of Human Rights observed in X and Y v Ireland (Application No 8299/78) (1980) 22 DR 51, para 19, “… Article 6 does not specify trial by jury as one of the elements of a fair hearing in the determination of a criminal charge”.

“36. It is, of course, to be remembered that the system of trial introduced as a result of Lord Diplock’s report (Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland (1972) (Cmnd 5185)), required the trial judge to give a reasoned judgment if the defendant was convicted. And that a defendant, upon conviction, was entitled to an automatic right of appeal, not only on points of law but on the factual conclusions reached and inferences drawn by the trial judge. These remain features of trials without a jury since the 2007 Act – section 5(6) and (7).

“37. The statement made by Lord Judge CJ in R v Twomey [2010] 1 WLR 630 at para 10 (relied on by the appellant) that, “[i]n this country trial by jury is a hallowed principle of the administration of criminal justice … properly identified as a right, available to be exercised by a defendant unless and until the right is amended or circumscribed by express legislation” must be viewed against this background. In the first place, although the Lord Chief Justice described entitlement to trial by jury as a right, he did not suggest that this was an absolute right; indeed, he accepted that it could be constrained in certain circumstances…”

Diplock trials were introduced at the time when the UK was struggling with biased juries refusing to convict defendants guilty of violent offences committed as part of a religious unrest in Northern Ireland. Interestingly, a similar struggle took place in the 50s and 60s in Southern States in the US where all white juries often refused to convict defendants guilty of violence against African-Americans. However, the US Federal Government, unlike the UK Government, was not in the position to interfere with jury trials as this would have been contrary to the principle of federalism and would have also violated a constitutional right to being tried before a jury guaranteed by Article Three of the Constitution as well as the 6th Amendment (applicable to States by virtue of the 14th Amendment). Instead, the Federal Government often tried defendants acquitted in State Courts in Federal Courts on other charges, such as ‘violation of civil rights’. The UK Government, on the other hand, was never constrained by a written constitution and was able to introduce trials without juries to address the problem of biased jurors. In fact, biased juries is not the only reason a trial without a jury can take place in the UK. Apart from trials involving terrorism-related offences committed in Northern Ireland, trials without juries are also allowed in the UK in complex fraud cases and where there is a risk of jury tampering (sections 43-44 of the Criminal Justice Act 2003).