Partners in crime

National Review, May 27, 1991

IN A relatively overlooked decision in early April, the Supreme Court effectively imposed racial quotas upon a critical part of the criminal-justice process--jury selection.

Traditionally, in criminal trials, both the prosecutor and the defense lawyer have been entitled not merely to challenges of jurors for "cause" (where prejudice, for example, can be shown) but also to what are known as "peremptory" challenges (where each side can strike a limited number of jurors for reasons less easy to articulate). Courthouse observers understand that defense lawyers tend to use their peremptories to remove jurors who are small-businessmen, relatives of policemen, and those who otherwise exhibit excessive law-abidingness. Prosecutors tend to remove professors at small liberal-arts colleges and contributors to public television. As a result of this dialectical process, some semblance of a "fair" jury is throught the emerge.

Several years ago, the High Court, not content with a roughly workable status quo, held that peremptory challenges by prosecutors would be scrutinized for racial bias--but not those by defense lawyers. Increasingly, prosecutors' challenges exercised disproportionately against black jurors have become the subject of litigation and appeal.

Not at all unexpectedly, the inability of prosecutors to translate hunches and gut feelings about jurors into testimony in a civil-rights action has chilled their use of peremptories against black jurors unless some white jurors could also be removed on an equal basis. Just as the Civil Rights Act currently before Congress would foster quotas by making race-conscious policies the least hazardous course for businessmen, the Court's decisions have prompted the same response by prosecutors.

The April decision took this tendency a step further by overturning the murder conviction of a white defendant on the grounds that six out of nine peremptories were exercised against black jorors. Yet the challenges, in this case, cannot have been based on race as such. the prosecutor must have calculated that the potential jurors would be biased against police and prosecution evidence. This is surely what peremptories are for.

There has been little public outcry over this decision. Yet, in thousands of courthouses around the country, thousands of prosecutors, in tens of thousands of trials, will now hesitate and fail to exercise challenges against jurors who, they believe on the basis of their experience, will not hear their case with an open mind. No such hesitation will occur on the part of the defense lawyers. In some unknown number of cases, juries--which normally act only upon the basis of unanimous agreement--will return verdicts in which, as Justice Scalia noted in dissent, "crime goes unpunished and criminals go free."