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
Tag Archives: jury selection
[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 →
The Supreme Court issued a per curiam opinion yesterday, reversing the Sixth Circuit in a capital case. The opinion doesn’t necessarily break new doctrinal ground but it is an interesting application of existing law, and it provides a window into an ongoing dispute between two federal appellate courts. Continue reading →
According to the News and Observer, the trial of Laurence Lovette begins today in Hillsborough. Lovette is charged with the first-degree murder of Eve Carson, who was, at the time of her death, the president of the student body at UNC – Chapel Hill. The case is non-capital, because Lovette was 17 at the time of the crime. Nonetheless, the paper reports, “jury selection is to begin . . . with prosecutors and defense lawyers interviewing potential jurors individually.”
I’ve been asked about the reference to individual questioning. Individual voir dire — the questioning and selection of jurors one at a time — is authorized by statute for capital cases. G.S. 15A-1214(j). May it properly be employed in a non-capital case?
One might argue that the answer is no, based on the explicit statutory authorization of individual voir dire in capital cases together with the lack of any similar authorization regarding non-capital cases. The court of appeals seems to have endorsed this argument to some extent in State v. McKisson, 2003 WL 21649214 (N.C. Ct. App. July 15, 2003) (unpublished) (finding no abuse of discretion in trial court’s denial of defendant’s request for individual voir dire in a sexual assault case, and noting that “[t]he State points out that, under [G.S.] 15A-1214(j), individual juror voir dire is limited to capital cases, and the case law of this State has borne out that interpretation”). Cf. State v. Watson, 310 N.C. 384 (1984) (rejecting the defendant’s argument that the trial judge should have employed individual voir dire in a non-capital murder case and emphasizing that G.S. 15A-1214(j) applies only in capital cases, but also stating that “[t]he trial judge has broad discretion in the manner and method of jury voir dire in order to assure that a fair and impartial jury is impaneled”).
On the other hand, one might argue that the answer is yes, based on the inherent authority of trial judges to regulate voir dire. This conclusion may be implicit in State v. Ysaguire, 309 N.C. 780 (1983) (stating, albeit with little analysis, that whether to allow individual voir dire in a non-capital case “is a ruling within the trial court’s discretion”). I lean towards this view myself.
At a minimum, it is clear that trial judges have the authority to allow individual voir dire as to particular sensitive issues in non-capital cases. In other words, a judge in a non-capital case certainly may allow individual questioning of jurors regarding specific topics, even while conducting the remainder of voir dire using the typical group method. State v. Roache, 358 N.C. 243 (2004) (discussing individual voir dire procedures in capital cases but also noting that “nothing in [the court’s discussion of capital cases] should be interpreted to infringe upon the trial court’s inherent authority to permit individual voir dire as to specific sensitive issues in any given case”). The most common subject of individual questioning is pretrial publicity. As the official commentary to G.S. 15A-1214 states, “an obvious [reason for individual voir dire] would exist when pretrial publicity required individual examination of jurors in order not to expose the remainder of the panel to the prior knowledge of the juror being questioned.”
I should note that I don’t have any first-hand knowledge of the Lovette case. Specifically, I don’t know (a) whether the newspaper’s report is accurate, (b) whether, when the story refers to individual questioning, it means full-fledged individual voir dire or simply individual questioning about selected issues, or (c) the positions of the parties regarding individual voir dire. Accordingly, nothing in this post is intended as a comment on the specific procedures being used in that case.
Yesterday, the United States Supreme Court decided Berghuis v. Smith, a case in which the defendant claimed that the pool from which his jury was selected was not a fair cross section of the community. In my experience, it is not uncommon for a defendant, particularly a minority defendant, to look at the jury pool and say something like “I thought I was supposed to have a jury of my peers!” Since the issue comes up reasonably often, it’s worth taking a look at the basic doctrine, which is as follows:
1. The Sixth Amendment guarantees the right to trial by jury.
2. “[T]he American concept of the jury trial contemplates a jury drawn from a fair cross section of the community.” Taylor v. Louisiana, 419 U.S. 522 (1975).
3. If a defendant can show that a “distinctive” group is significantly underrepresented in a jury pool as a result of “systematic exclusion,” he has made a prima facie case that his fair cross section rights have been violated. Duren v. Missouri, 439 U.S. 357 (1979).
4. Such a defendant is entitled to relief — the exact nature of which may depend on the stage of the case — unless the state can show that the discrepancy is the result of eligibility requirements or exemptions from service that “manifestly and primarily advance” a “a significant state interest.” Id.
Remember, all of this has to do with the jury pool, not with the selection of the jurors from the pool. Claims of discrimination in that process are addressed under the framework established in Batson v. Kentucky, 476 U.S. 79 (1986).
Let’s look at how this doctrine applied in Smith. The defendant was an African-American man charged with murder. Between 60 and 100 prospective jurors appeared for jury selection. “[A]t most, three venire members were African-American.” The defendant objected to the venire, but his objection was overruled. The defendant was convicted, and appealed. The state intermediate appellate court ordered the trial court to conduct an evidentiary hearing on the fair cross section issue.
At the hearing, the evidence showed that prospective jurors were assigned to local misdemeanor courts first, and only once those courts’ needs were met were any remaining prospective jurors assigned to the county-wide felony court in which the defendant was tried. Shortly after the defendant’s trial, this system was changed because court officials believed that the local misdemeanor courts “swallowed up” most of the minority jurors, leaving few for the county-wide felony court.
The statistical evidence showed that blacks were 7.28% of the local jury-eligible population, and 6% of the jury pool at the county-wide felony court over the six months leading up to Smith’s trial. The “absolute disparity” was therefore 1.28%, while in relative terms, blacks were 18% underrepresented. (7.28% – 6% = 1.28%, and 1.28/7.28 = 18%.) This 18% underrepresentation shrank to 15% after the system for assigning prospective jurors was changed.
The trial court, the state intermediate appellate court, and the state supreme court disagreed over how the disparity should be measured (in absolute terms, relative terms, or otherwise); whether it was significant; and whether it was the result of systematic exclusion. The state supreme court ruled in the state’s favor, and Smith sought federal habeas review. The federal district court denied relief, but the Sixth Circuit reversed finding sufficient evidence of systematic exclusion. The Supreme Court reversed again. (As an aside, this is the third time this Term that the Court has reversed a Sixth Circuit decision granting habeas relief. Two more cases are pending, as noted here. I haven’t seen a statistical analysis, but I suspect that the Sixth Circuit is the second-most-reversed federal court of appeals.)
The Court declined to adopt a single test for disparity, describing each of the several statistical techniques used by the parties as “imperfect.” Nor did it establish a clear threshold for when a disparity is significant enough to raise fair cross section concerns. Instead, it found that the Sixth Circuit erred, under the deferential standard of review mandated by the Antiterrorism and Effective Death Penalty Act, in finding that any underrepresentation was the result of systematic exclusion. It found that Smith’s best explanation for how blacks were systematically excluded from his jury pool — through the system of assigning prospective jurors to local misdemeanor courts first — was unpersuasive in light of the nominal change in the underrepresentation of blacks when the system was abandoned. Smith also argued that systematic exclusion resulted from practices such as “excusing people who merely alleged hardship or simply failed to show up for jury service, . . . rel[ying] on mail notices, . . . fail[ing] to follow up on nonresponses, . . . us[ing] . . . residential addresses at least 15 months old, and . . . refus[ing] . . . to enforce court orders for the appearance of prospective jurors,” but the Court rejected this as unsupported speculation.
Justice Thomas concurred, suggesting that there is no fair cross section requirement in the Sixth Amendment, which was adopted at a time when many states forbade women, those who did not own property, and other groups, from serving on juries. (Maryland apparently didn’t permit atheists to serve.)
The Supreme Court has long emphasized that the fair cross section requirement must be applied in a flexible way that accommodates local practices. In the wake of Smith, federal courts will probably be even more reluctant to find fair cross section violations. Except in extreme cases, state courts may be no more receptive to such claims. Certainly, fair cross section claims don’t appear to have had a great history of success in the North Carolina courts. See, e.g., State v. Williams, 355 N.C. 501 (2002) (12% disparity insufficient to establish significant underrepresentation, and discussing cases in which even greater disparities were not enough; also noting lack of evidence of systematic exclusion). So when a defendant says “that’s not a jury of my peers,” the constitutional answer, in most cases, is “yes, it is.”
Who has the final say about whether to strike a prospective juror – the defendant or his lawyer? That’s the question addressed by the court of appeals today in State v. Freeman.
The defendant in Freeman was charged with murder. During jury selection, the defendant and his attorney disagreed about whether to use a peremptory strike on a prospective juror. The attorney wanted to keep the juror, in part “because I generally don’t like using my last strike when we don’t know who else we’re going to get.” The defendant wanted to strike the juror.
Defense counsel informed the trial judge of the impasse, and the judge said “I don’t see how that’s my issue. You consult with your client and you decide how to proceed.” The lawyer decided to keep the juror. The case proceeded, the defendant was convicted, and he appealed. The court of appeals held that when a lawyer and a client reach an impasse over a tactical decision, the client’s wishes must control. Because the defendant’s wishes were overridden by the lawyer in Freeman, the court concluded that the defendant was effectively denied his full complement of peremptory challenges. Under State v. Locklear, 145 N.C. App. 447 (2001), that requires a new trial.
The court’s explanation of how impasses over tactics must be resolved was based on State v. Ali, 329 N.C. 394 (1991), another jury selection case. In Ali, the defendant wanted to accept a prospective juror whom his attorneys wanted to strike. After noting the conflict, the attorneys yielded to the defendant’s wishes and the prospective juror was accepted. On appeal, the defendant argued that he was deprived of his Sixth Amendment right to the assistance of counsel when his attorneys yielded to him on a tactical issue. The state supreme court held otherwise, finding that although attorneys normally make tactical decisions, the client has the ultimate authority over them when there is an impasse, based on “the principal-agent nature of the attorney-client relationship.” See also State v. Mitchell, 353 N.C. 309 (2001) (where defense counsel wanted to attempt to rehabilitate a prospective juror but the defendant did not, it was proper for counsel to yield to the defendant’s wishes).
Without questioning Ali or Freeman on their facts, I wonder how far the agency rationale extends. Taken to its logical conclusion, it raises some difficult questions. For example, the Ali line of cases suggests that the ultimate authority over which questions to ask a witness belongs to the defendant. That’s a tactical decision, after all. Cf. State v. Brown, 339 N.C. 426 (1994) (noting that the defendant “held strong opinions about trial strategy, jury instructions, and the examination of witnesses” and holding that it was proper for defense counsel to defer on these issues). But what if the client insists on asking an ethically improper question, such as one designed solely to embarrass the witness? What if the client insists on asking a question that is clearly not in the client’s interest? Something along these lines apparently happened in Brown. Should the lawyer acquiesce, risking professional discipline or a later finding of ineffectiveness? Move to withdraw? See generally Rule of Professional Conduct 1.2 cmt. 2 (suggesting, without mandating, that a lawyer withdraw when an impasse is reached over matters of tactics). Should the court allow the defendant to pose such a question himself, if counsel refuses? In Ali, the court said that when there is an impasse, the lawyer should make a record of it and then yield to the client. That doesn’t seem sufficient if the client’s choice is not merely contrary to the lawyer’s preference, but actually improper or unreasonable.
As an aside, most authorities outside the state seem not to have endorsed the agency rationale to the extent that our courts have. Specifically with respect to jury selection, the majority rule appears to be contrary to Ali and Freeman.
- “Courts have found that decisions concerning . . . whether . . . to strike a prospective juror . . . are strategic decisions for counsel to make.” Peter A. Joy & Kevin C. McMunigal, Do No Wrong: Ethics for Prosecutors and Defenders 81 (2009).
- “Strategic and tactical decisions should be made by defense counsel . . . [including] what jurors to accept or strike.” ABA Standards for the Defense Function 4-5.2 (1993).
- “Decisions on selection of a jury are among the many entrusted to counsel rather than to defendants personally. . . . A patient can decide whether to undergo an operation, but once that decision has been taken the surgeon is in charge of implementation; so too with lawyers and trials.” United States v. Boyd, 86 F.3d 719 (7th Cir. 1996).
For an interesting discussion of some related issues, see Robert E. Toone, The Incoherence of Defendant Autonomy, 83 N.C. L. Rev. 621 (2005).
Defense lawyers, what are your thoughts? Does the idea of deferring to your client’s wishes on tactical issues make you uneasy? Have you been in situations where it was problematic? Or do you think the concerns raised above are overblown?
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.”