A recent case in the Fifth Circuit highlights the on-going evolution of legal doctrines addressing race and jury selection.  Courts have been wrestling with these issues at least since the Supreme Court announced in Batson v. Kentucky that attorneys could not discriminate on the basis of race during jury selection.  (Batson was a criminal case, but the Supreme Court has extended its rule to civil cases as well.  See Edmonson v. Leesville Concrete Co.  The Supreme Court has also prohibited discrimination on the basis of ethnicity and gender in jury selection.  See Hernandez v. New York (ethnicity) and J.E.B. v. Alabama (gender)).  In the recent United States v. Thompson, the Fifth Circuit addressed issues related to “pretext”– that is, when the attorney accused of racially discriminating in jury selection offers a “race neutral” reason for striking a prospective juror but there is suspicion that the proffered reason is not in fact true.

Batson issues generally involve a three step inquiry.  First, a litigant alleges that the other side’s attorney has used his or her jury challenges in a discriminatory manner.  Second, if the court believes a prima facia case of discrimination has been shown–for example, if the accused attorney has used all or most of his or her strikes against a certain demographic group–then the court will require the accused attorney to explain his or her reasons for the strikes.   Third and finally, the court will determine whether the proffered reasons are credible or whether they are actually just pretexts masking impermissible discrimination.

In Thompson, the prosecutor used 71% of his strikes against African-American jurors, and the district court believed that was sufficient to make out a prima facia case of discrimination.  The court therefore required the prosecutor to provide his reasons for the strikes.  The reasons the prosecution proffered were primarily based on his (alleged) perception of the potential jurors’ demeanor in court.  For example, for one of the jurors, the prosecutor claimed to have struck him because “he sat there with his arms folded . . . with a mean look on his face.”

In relying on in-court demeanor to justify his strikes of these jurors, the prosecutor took a somewhat risky course.  Although Batson challenges are very difficult to win, those that are won usually involve an attorney’s claim to have based the strike on the juror’s demeanor or the attorney’s “gut feeling” about the juror.  Such subjective reasons are much more likely to be found to be pretexts than are objective reasons supported by the record.  See, e.g, the Supreme Court’s decision in Snyder v. Louisiana, which found a prosecutor’s proffered race-neutral reasons for striking a juror, one of which was based on demeanor, to be likely pretext and remanded the case for an evidentiary hearing on the issue.

The Fifth Circuit in Thompson, however, ultimately agreed with the district court that the prosecutor’s reasons, though based on a subjective evaluation of demeanor, were credible.  In doing so, the Court also held that Snyder does not require the district court to make specific factual findings on the record regarding a prospective juror’s demeanor.  The Fifth Circuit thus aligned itself with the Eleventh Circuit on this issue, and rejected the contrary reading of Snyder adopted by the Seventh Circuit in United States v. McMath.

Although somewhat involved and technical, these issues regarding diversity on juries are vitally important both for the individual and society.  Being able to serve on juries is a constitutional right, and, according to 19th century commenter  Alexis de Tocqueville, one of the most vitally important institutions in American democracy.  In our heterogeneous society, diverse juries also probably add legitimacy to the verdicts they render– witness the widespread social upheaval that occurred after a nearly all-white jury (and one which contained no African-Americans) acquitted the officers in the Rodney King beating.  Furthermore, and in some ways even more interesting, empirical research has shown that juries containing a diverse collection of people from different races, genders, and socio-economic backgrounds may in fact work better as fact finders.   Samuel Sommers of Tufts University has conducted a number of intriguing studies in this area, and his findings suggest that jurors within a diverse group tend to get fewer facts wrong and rush to judgment less often.