Jury Selection and Racial Bias

LDF has a long history of working to eliminate discrimination from the jury selection process. We believe that the right to serve on and be tried by an impartial jury in a nondiscriminatory manner is as critical to our democracy as the right to vote. This is why Curtis Flowers’s case is so important. Mr. Flowers, an African American man, was on death row. He had been tried six times for the murder of four people in a furniture store in Mississippi. Despite having very weak evidence that Mr. Flowers had committed the murders, Doug Evans, the lead prosecutor in each trial, attempted to remove all 36 African American prospective jurors in the first four trials. In the sixth trial, which was the trial at issue before the Supreme Court, Mr. Evans used six peremptory strikes to remove five African-American jurors.

In the process of selecting a jury, parties may use what is known as a peremptory challenge. Unlike a challenge for cause, where an attorney must give a reason for not allowing a prospective juror to serve on the jury, peremptory challenges do not require a reason to strike a potential juror. However, the Supreme Court, in its 1986 decision in Batson v. Kentucky, said that while a jury need not be composed in whole or in part of members of the defendant’s race, purposely excluding a person from a jury because of race is a violation of the Equal Protection Clause of the U.S. Constitution.

LDF’s amicus brief in Mr. Flowers’s case illustrated that the discriminatory use of peremptory challenges remains a problem. We cited a detailed statistical analysis conducted by American Public Media (APM) Reports that analyzed 225 trials conducted by Mr. Evans’s office where data on race of the potential jurors was available. The research showed, among other alarming facts, that Mr. Evans’s office struck African American jurors 4.4 times more frequently than white jurors. APM Reports also found that simply being African American increased a juror’s chance of being struck more than knowing the defendant or even having a family member in law enforcement.

In deciding this case, the Supreme Court considered all of the relevant facts and circumstances and found that Batson had been violated. Justice Kavanaugh, who wrote the opinion for the Court, stated that “[t]he numbers speak loudly,” referring to the number of African American prospective jurors struck from the six trials. The Supreme Court reversed Mr. Flowers’ death sentence and sent the case to the Supreme Court of Mississippi for further proceedings.