Since our nation’s founding, jurors have played a critical role in checking governmental power. In the dynamic relationship between the State and the jury, one of the State’s most potent tools to obtain its desired outcomes is to influence the jury’s composition. The government can alter the jury pool in a variety of ways, including through the prosecution’s use of peremptory challenges, the process of death-qualification (in capital cases), and the way in which the legislature decides how jurors will be summoned to participate. The Constitution prohibits the government from tilting the participatory scales by discriminating against prospective jurors because of their race, gender, or identity (through the 14th Amendment Equal Protection Clause) or by systematically excluding identifiable categories of people from the process (through the 6th Amendment right to a jury pool that represents a fair cross section of the community). These constitutional protections are imperfect, but play an important role in checking prosecutorial excess. This month, the Washington Supreme Court and the Iowa Supreme Court handed down important decisions that make these protections more robust and remind us why they are so critical.
In Washington, the state’s highest court decided to modify its approach to Batson claims—claims that lawyers have intentionally discriminated against prospective jurors on the basis of race. As we’ve noted in a previous write-up about Batson, “many have pointed out over the years, the case has done too little to prevent prosecutors from excluding minority jurors, particularly because courts have been reluctant to enforce it.” The Washington Supreme Court, however, appears to be an outlier. Its decision in City of Seattle v. Erickson reveals what the judiciary can do when it takes seriously the call to eradicate racial discrimination.
Matthew Erickson, an African-American man, was charged for unlawful use of a weapon and resisting arrest after being arrested for brandishing a knife at a Seattle shopping center. At his municipal court trial, the City used a peremptory strike to exclude the only prospective black juror in the jury pool. When Mr. Erickson’s lawyer objected under Batson, the prosecution claimed that the strike of a single juror could not suffice to show a “pattern” purportedly needed to prove discrimination. The municipal court judge ultimately denied Mr. Erickson’s objection, holding that he did not make a prima facie case of discrimination.
On appeal, the Washington Supreme Court took a different approach. It dismissed the State’s position outright, quoting a U.S. Supreme Court decision (Snyder v. Louisiana) for the proposition that “[t]he Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Had it endorsed the State’s argument, the court would have effectively decided that a prosecutor cannot discriminate against a prospective juror if that juror is the only individual of a particular race in the jury pool. Clearly, that makes no sense.
Citing its own recent jurisprudence for the proposition that “Batson protections are not robust enough to effectively combat racial discrimination during jury selection,” the court identified Erickson as an opportunity to make a change. Adopting a position that had been set out in a dissent in an earlier case (State v. Rhone), the court held that the peremptory removal of a juror who is the only member of a cognizable racial group in the qualified jury pool constitutes a per se prima facie case under Batson. In other words, the first step of the Batson process is automatically passed, and the parties and court must proceed to steps two and three to fully explore the possibility that race played a role in the peremptory strike’s deployment.
This decision is remarkable for a number of reasons. Considering how reluctant some courts have been to utilize judicial powers to make Batson easier to enforce, the Washington high court has shown that it takes little more than a commitment. And, unlike many courts that recognize wrongs but fail to remedy them, the Erickson Court issued a holistic ruling to ensure the decision had a meaningful and immediate effect. It took an expansive view of the timing required to make a Batson objection, allowing objections to be made even after a jury is sworn in. More importantly, the court granted Mr. Erickson a new trial, not simply a remand for further consideration. While many courts that find prima facie cases on appeal send the case back so the trial court can finish steps two and three of the process, the Washington Supreme Court took a pragmatic approach, holding that such a remand would be “unreasonable” and ineffective. In this case, two-and-a-half years had passed since the Batson challenge, and the judge who presided at that time of trial is no longer on the municipal bench.
The laudable majority opinion is not the only opinion of note. In a concurring opinion, Justice Debra Stephens, joined by Chief Justice Mary Fairhurst, emphasized that the decision would not solve Batson enforcement troubles. Because Erickson only applies to the first step of a three-step inquiry—and the latter two hurdles are even more difficult for defendants to clear—“taking the first step may not represent much progress.” Echoing critiques levied by scholars and litigants, Justice Stephens wrote, “We are unlikely to see different outcomes unless courts are willing to more critically evaluate proffered race-neutral justifications in future cases.”
A third opinion also warrants attention. In her concurrence, Justice Mary Yu, joined by Justice Steven Gonzalez, called for the outright abolition of peremptory challenges. This position, articulated in an earlier epic solo concurrence by Justice Gonzalez, emerged from a concern that “our solution assumes too much and falls short on ensuring that no juror is removed solely because of race, gender, sexual orientation, or religious beliefs.” The three opinions that emanate from Erickson leave no doubt that every justice of the Washington Supreme Court harbors substantial concerns about the possibility that racial discrimination will influence jury selection.
While prosecutors’ peremptory strikes occupied the jurists out West, justices on a high court in the heartland dealt with a fair cross section question. The Sixth Amendment fair cross-section requirement is what lies behind the widespread notion that an individual is entitled to a “jury of her peers.” That phrase misstates the requirement a bit, however. What the Constitution actually requires is that the jury pool—the group summoned for jury selection—comes from a representative cross-section of the community. In State v. Plain, the Iowa Supreme Court grappled with difficult questions of how to meaningfully enforce this requirement.
Kelvin Plain, Sr., an African-American man, was convicted of an aggravated misdemeanor of harassment in the first degree. Plain’s neighbor, Randy Gray, and his spouse (unnamed in the opinion) called the police and complained that Plain had thrown a pair of bolt cutters at Mr. Gray’s head after an argument. When police arrived on the scene after Mrs. Gray called them, Mr. Plain stated that Mr. Gray had come out of his apartment waving a golf club at him. Ultimately, the police arrested Mr. Plain and the prosecution took him to trial.
At jury selection, 56 jurors reported for duty. Only one juror in the pool was African-American. In Black Hawk County, African Americans comprise 8.9% of the population. In the jury pool, the lone African American juror led to a 1.8% level of representation. Mr. Plain objected to the jury pool’s composition based on this underrepresentation, but the trial court denied his objection.
On appeal, the Iowa Supreme Court grappled with the fair cross-section jurisprudence First, it set out the relevant test courts use to decide whether there’s a constitutional violation. Under Duren v. Missouri, there is a three-part test: (1) the excluded group must be a distinctive one in the community; (2) the representation of this group in the jury pool is not fair given the proportion in the community; and (3) the underrepresentation stems from systematic exclusion. In Plain, there was no doubt about step one because African-American jurors represent a distinctive group for cross-section purposes. And, step three was not reached below. What was at issue was step two – the question of whether the level of representation was unfair.
In analyzing claims at step two, courts have relied on three separate tests. The Court explains them well here:
The first test, absolute disparity, is useful as a quick dipstick for providing a rough gauge of the representativeness of a jury pool. . . . Absolute disparity is calculated ‘by taking the percentage of the distinct group in the population and subtracting from it the percentage of that group represented in the jury panel.’ State v. Jones, 490 N.W.2d 787, 793 (Iowa 1992). The lower the resulting percentage, the more representative the jury pool. * * *
The second test, comparative disparity, is useful in examining the relative size of the minority group in the general population. Rogers, 73 F.3d at 777 (“[I]t calculates the representation of African Americans in jury pools relative to the African-American community rather than relative to the entire population.”). Comparative disparity is calculated by dividing the absolute disparity by the percentage of the population represented by the group in question. See United States v. Sanchez, 156 F.3d 875, 879 n.4 (8th Cir. 1998). The higher the comparative disparity percentage, the less representative the jury pool.
The final test, standard deviation, is useful to measure “predicted fluctuations from the expected value.” Castaneda v. Partida, 430 U.S 482, 496 n.17, 97 S. Ct. 1272, 1281 n.17 (1977). Standard deviation is calculated by analyzing a sample taken from the voter wheel and analyzing it for randomness and fluctuations. Id.; see also United States v. Weaver, 267 F.3d 231, 238–39 (3d Cir. 2001).
Each of these tests has strengths and weaknesses. The problem in Iowa, however, was that the Iowa Supreme Court had previously decided in State v. Jones that it would only rely on the absolute disparity test. One flaw with the absolute disparity test is that the “formula does not account for the relative size of the minority group in the general population. It instead excludes any minority population that makes up a percentage of the population that is lower than the permissible amount for absolute disparity.” In Jones, the court had referenced a 10-percent absolute disparity threshold to make out a prima facie case of underrepresentation. In other words, any racial minority that constituted less than 10% of the population of a county could never succeed in meeting the threshold requirement. The court identified this harsh reality in Plain: “[t]he shortcoming of the absolute disparity formula is demonstrated by the fact that African-Americans do not represent more than ten percent of the population in any county in Iowa.”
Rather than continuing to preclude African Americans from the Sixth Amendment protection altogether, the Iowa Supreme Court overruled Jones. It held that it “abandon[ed] the exclusive use of absolute disparity as a test for jury representativeness” and would now “permit absolute disparity, comparative disparity, and standard deviation analyses to be used.” This newly-adopted flexibility gives judges the statistical and analytical tools they needed to sniff out underrepresentation across a range of contexts.
Like the Washington Supreme Court in Erickson, the Iowa Supreme Court was disturbed that its case law had precluded effective enforcement of constitutional protections for racial minorities. Consider this excerpt from the majority opinion:
A test without teeth leaves the right to an impartial jury for some minority populations without protection. Empirical evidence overwhelmingly shows that having just one person of color on an otherwise all-white jury can reduce disparate rates of convictions between black and white defendants. For example, when researchers at Duke University compared data on conviction rates by race in over 700 criminal trials over a ten-year period, they found that where there was one or more black jurors, black and white defendants had roughly equal rates of conviction; however, all-white juries convicted African-American defendants 81% of the time and white defendants only 66% of the time. . . . The data evidencing the impact of racially unrepresentative juries on case outcomes are especially troubling given that Iowa ranks worst in the nation for the percentage of our prison population that is African-American (more than 25%), while African-Americans represent just 3.3% of the state’s population.
Again, like Erickson, the Plain majority opinion ensures that litigants have what they really need to lodge meaningful challenges. Here, the defendant had requested information about the jury pool before the trial, but the jury manager failed to turn it over. Sensibly, the court decided that a defendant’s constitutional and statutory rights to an impartial jury also entail the right to access the information needed to substantiate a fair cross-section challenge.
The Court’s deep-seated concerns about the role race plays in the justice system also arose in separate opinions authored by different justices. For example, Justice David Wiggins specially concurred to write that the numbers about Iowa’s racial disparity in imprisonment (mentioned above) “are shameful.” He went on to opine that “implicit bias against blacks in Iowa” may explain the stark disparity. Justice Brent Appel also concurred, separately publishing a lengthy and well-researched opinion that explores implicit bias’s role in the administration of criminal justice. He wrote because while he viewed the majority’s decision as an “important, and even essential” barrier-removing exercise, he wanted to underscore that “we have a long way to go in ensuring fairness to racial minorities in our criminal justice system.”
While the fair cross-section decision may appear to be more narrowly about race, its implications reach prosecutorial power. The Iowa Supreme Court reminded us that a “jury that represents a fair cross-section of the community enables ‘the commonsense judgment of the community [to serve] as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.’” Both Erickson and Plain demonstrate the influence state courts can have when they are motivated to stamp out discrimination and hold government actors accountable. It is important to keep in mind that they are the exception, not the rule. We hope that they will serve as models to other courts, rather than outliers.