This post summarizes opinions issued by the Supreme Court of North Carolina on June 5, 2020. Continue reading
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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.) Continue reading →
[Editor’s note: Emily Coward, the author of today’s post, is an attorney who works with the indigent defense education team at the School of Government. She is a co-author of Raising Issues of Race in North Carolina Criminal Cases.]
In Foster v. Chatman, a 7-1 opinion authored by Chief Justice John Roberts, the U.S. Supreme Court held that prosecutors in Georgia discriminated on the basis of race during jury selection in a 1987 death penalty trial. This post explains the ruling and considers its impact on Batson challenges in North Carolina. Continue reading →
In the recent case of State v. Hurd, the N.C. Court of Appeals upheld a claim by a prosecutor that a defendant’s peremptory strike of a prospective White juror was racially discriminatory, which is the second time that our appellate courts have upheld such a claim. This post briefly reviews the legal requirements for challenges under Batson, analyzes the court’s reasons for sustaining the prosecutor’s challenge in Hurd, and considers the lack of appellate decisions in North Carolina upholding defense challenges to prosecutors’ peremptory strikes of jurors of color. Continue reading →
Scholar john powell succinctly defines implicit bias as “a habit of the mind.” He explains that our brains have a natural tendency to form associations (for example, we might see a tall person and think “basketball player”) in order to make sense of the 5,000 or so images with which we are bombarded each day. This process happens rapidly at an unconscious level and helps us to navigate the world. However, concerns arise when our brains form associations between race and negative traits. For example, in one recent study, researchers concluded that participants held implicit associations between “Black” and “guilty,” and that such associations predicted how they would evaluate ambiguous evidence. A growing body of scholarship, discussed in the School of Government manual Raising Issues of Race in North Carolina Criminal Cases (see Section 1.3D in particular), suggests that such unconscious associations affect the perceptions and decisions of court actors, and may contribute to disparate treatment and outcomes in the criminal justice system. Continue reading →
In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that prosecutors could not exercise peremptory challenges based on race. In Georgia v. McCollum, 505 U.S. 42 (1992), the Court extended the same rule to defendants. (Sex discrimination is likewise prohibited, under J.E.B. v. Alabama ex rel T.B., 511 U.S. 127 (1994).) Yet while defendants regularly make Batson challenges to prosecutors’ strikes, it appears that prosecutors rarely return the favor. In fact, there is only one reported appellate case in which a North Carolina prosecutor successfully challenged a defendant’s use of peremptory challenges: State v. Cofield, 129 N.C. App. 268 (1998).
Perhaps prosecutors have been reluctant to invoke McCollum because of uncertainty about the consequences of success. Clearly, if a McCollum challenge succeeds, the defendant is convicted, and the trial judge’s ruling is upheld on appeal, the conviction stands. But what if a McCollum challenge succeeds, the defendant is convicted, and the appellate courts conclude that the trial judge erred in granting the challenge? Prosecutors — and judges — may have assumed that the appellate courts would find so-called structural error, mandating automatic reversal. Although no North Carolina appellate case so held, the United States Supreme Court stated in dicta in Swain v. Alabama, 380 U. S. 202, 219 (1965), that “[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice.” Fear of structural error may have deterred prosecutors from contesting defendants’ questionable use of peremptory strikes.
McCollum challenges may become more common as a result of Rivera v. Illinois, __ U.S. __ (2009), available here, a case just decided by a unanimous United States Supreme Court. In Rivera, the trial judge sua sponte invoked McCollum to question a defendant’s peremptory challenge of a black female juror. After hearing defense counsel’s explanation for the strike, the judge ruled that the defendant was attempting to exercise the peremptory challenge in a discriminatory fashion, and, because the juror in question was not subject to challenge for cause, required that she be seated over the defendant’s objection. She ultimately served as the foreperson of the jury that convicted the defendant.
The defendant appealed, arguing that his challenge was not based on the juror’s race or sex, and that the trial judge’s rejection of the defendant’s peremptory challenge was structural error that required a new trial. The state appellate court agreed with the first part of the defendant’s argument, finding no evidence that the challenge was discriminatory, but disagreed with the second part. It ruled that, because no juror who was actually seated was biased against the defendant, the defendant was not deprived of his constitutional right to a fair an impartial jury. He was, of course, deprived of his state statutory right to use his peremptory challenges as he saw fit, but the court ruled that the error was harmless beyond a reasonable doubt in light of the strength of the case against him.
The United States Supreme Court granted certiorari to resolve a split among state supreme courts about whether the erroneous denial of a peremptory challenge automatically requires a new trial. It affirmed the state supreme court, finding that “the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws.” Specifically, it held that because no member of the defendant’s jury was subject to removal for cause, he was not deprived of his right to an unbiased jury; and although he was subjected to a violation of state law, it was not such a fundamental insult that it rose to the level of a due process violation.
Does this mean that the North Carolina appellate courts will review successful McCollum challenges for harmless error, as the Illnois courts did in Rivera? That result isn’t strictly required by Rivera, since the federal courts can’t tell state courts how to review errors of state law, but it certainly seems likely. And that may give prosecutors a little more comfort in invoking McCollum. That appears to have been one of the Supreme Court ‘s goals, as it explained its decision in part by noting that “[t]o hold that a one-time, good-faith misapplication of Batson violates due process would likely discourage trial courts and prosecutors from policing a criminal defendant’s discriminatory use of peremptory challenges.”