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Grappling with Juror Discrimination, 35 Years After Batson v. Kentucky

Note from John Rubin: I regret to report that Emily Coward is leaving the School of Government. In her nine years at the School as part of our Public Defense Education group, Emily co-authored our defender manual, Raising Issues of Race in North Carolina Criminal Cases; directed the North Carolina Racial Equity Network, a program providing a series of trainings for interested North Carolina defenders; and became a national expert in, among other areas, efforts to address racial disparities and bias in jury formation and selection. The good news is that Emily is launching the Inclusive Juries Project (IJP), which will partner with lawyers, scholars, students, court actors, and community members on initiatives aimed at ensuring fair and inclusive juries in North Carolina and nationally. Through research, scholarship, consulting, and educational initiatives, IJP will contribute to jury reform efforts, develop tools and strategies to address juror discrimination, and work to ensure the constitutional promise of the American jury system. We are grateful for Emily’s many contributions while at the School of Government and wish her all the best in her new endeavors.

A Glynn County, Georgia jury will soon determine the fate of Gregory McMichael, Travis McMichael, and William Bryan for their roles in the killing of Ahmaud Arbery in Brunswick, Georgia last year. You may have read that the defense attorneys struck eight of the nine, or 88%, of all eligible black jurors. If you haven’t followed the case, the defendants are white, and the victim, Mr. Arbery, was black. Mr. Arbery was out jogging when he was pursued, cut off, and killed by the defendants in their trucks. The jury hearing the case is comprised of 11 white jurors and one black juror; all four alternates are white. Black jurors are underrepresented on this jury in relation to their representation in the county, as 26.6% of Glynn County residents are black.

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What Does It Take to Succeed on a Batson Claim in North Carolina?

A “peremptory strike” is a tool used by lawyers to exercise control over who is seated on a trial jury. When selecting a jury, attorneys may use peremptory strikes to remove a certain number of potential jurors for any reason at all, other than race and gender. Since lawyers typically do not have to explain the reasons behind their peremptory strikes, they “constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.” Batson v. Kentucky, 476 U.S. 79, 96 (1986), quoting Avery v. Georgia, 345 U.S. 559, 562 (1953). In the 1986 case of Batson v. Kentucky, the United States Supreme Court reaffirmed that peremptory strikes motivated by race violate the Equal Protection Clause; ever since then, challenges to racially motivated jury selection have been referred to as “Batson challenges.” Batson v. Kentucky, 476 U.S. 79 (1986). (For an excellent telling of James Batson’s story and the legacy of this decision, check out the More Perfect Podcast, Object Anyway.)

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