| William E. Martin and Peter N.
Thompson
excerpted from: William E. Martin and Peter N.
Thompson, Judicial Toleration of Racial Bias in the Minnesota Justice
System, 25 Hamline Law Review 235-270, 263-264 (Winter, 2002)(230
Footnotes Omitted)
Prosecutors and state officials have denied persons of color full
participation in the American justice system for decades. As early as
1879, the United States Supreme Court, in Strauder v. West Virginia,
loudly denounced the systematic exclusion of Black Americans from jury
pools, finding that the practice violated equal protection of the laws.
But state officials did not readily embrace this holding. Over the past
century, the United States Supreme Court has had to reapply this basic
principle to numerous and varied state schemes designed to preclude
Blacks from participating on grand juries, petit juries or both. In Rose
v. Mitchell, the Court noted that "one hundred and fourteen years
after the close of the War Between the States and nearly one hundred
years after Strauder, racial and other forms of discrimination remain a
fact of life in the administration of justice as in our society as a
whole."
The United States Supreme Court has been persistent and consistent in
denouncing state discrimination in grand juries and in petit jury pools.
When the issue focuses on individualized discrimination against
minorities by prosecutors exercising peremptory challenges, however, the
Court has been more tolerant of racial discrimination.
In Swain v. Alabama, the Court addressed the discriminatory use of
peremptory challenges against African American venirepersons. The Court
reiterated the general principle that purposeful discrimination
excluding Blacks from the jury was unconstitutional. The Court held,
however, that as long as the prosecutor did not systematically remove
Blacks from jury service over an extended period of time, no violation
occurred. Although there was evidence that, based on the memories of
county residents, no African American juror had served in a criminal
case in that jurisdiction, the Court found no equal protection violation
in Swain. The decision effectively renewed prosecutorial license to use
peremptory challenges to keep persons of color off of juries.
In Batson v. Kentucky, the Court modified its holding in Swain and
concluded that purposeful discrimination in excluding minorities by
peremptory challenges in an individual case could be a violation of
equal protection. The Court adopted the elaborate doctrine used for
addressing discrimination in civil rights cases to resolve this pre-
trial issue. First, counsel must object and establish a prima facie
claim of intentional discrimination. The prima facie case can be
established by proof that peremptory challenges were used to exclude one
or more members of a racial group and that circumstances of the case
raise an inference that the exclusion was based on race. The trial judge
is required to consider "all relevant circumstances."
If a prima facie case is established, the burden shifts to the
prosecutor to state a racially neutral reason for the strikes. If a
racially neutral explanation is advanced, the challenger must then prove
that the stated reason was pretextual and that striking the minority
jurors was necessarily the result of purposeful discrimination. The
issue of purposeful discrimination is a factual determination for the
trial court that will not be reversed on appeal unless clearly
erroneous. Batson, however, has not ended the long-standing practice of
excluding persons of color from juries.
In dozens of cases in Minnesota, persons of color have maintained
that the prosecutor has used peremptory challenges to intentionally
exclude non-white venirepersons. Minnesotans might be pleased to learn
that despite these numerous appellate challenges, no appellate decision
has yet reversed a trial judge's finding that there was no intentional
discrimination in the exercise of peremptory challenges. Based on the
decisions of the Minnesota appellate courts there would seem not to be a
problem in Minnesota. Apparently, attorneys here never use peremptory
challenges impermissibly, or trial judges never make mistakes when
ruling on Batson challenges. The Minnesota experience is remarkable
considering a report that twenty percent of all state court Batson
challenges throughout the country have resulted in reversals.
Other evidence calls the holdings of the Minnesota appellate courts
into question. Surveys conducted by the Racial Bias Task Force revealed
that nearly one-half of the public defenders, and fifty-three percent of
the metropolitan judges believe that prosecutors in the state are more
likely to use peremptory challenges against jurors who are people of
color. Although it is difficult to discern what is occurring at the
trial level by reading appellate opinions, the context and sheer number
of appeals claiming discrimination raises the question whether
discrimination is present, but tolerated by the courts.
In numerous cases, prosecutors have used peremptory challenges to
exclude the only minority juror or jurors on the panel, leaving an all
white jury to hear the case. Perhaps it is coincidence that prosecutors
choose, for reasons unrelated to race, to exclude the only persons of
color on these panels. Perhaps racial bias was not implicated in any of
the cases. Perhaps Minnesota trial judges, unlike state trial judges
throughout the country, are doing a near perfect job of avoiding racial
discrimination. But in light of the long history of state attempts to
keep persons of color off of juries, and the justice system's poor track
record in policing racial bias in other contexts, a different conclusion
cannot be rejected out of hand. Perhaps, the Minnesota courts are overly
tolerant of racially biased conduct.
The reasons given in cases for excusing prospective jurors, who just
happen to be the only persons of color on the panel, often seem
contrived or insignificant. Also, these reasons are sometimes developed
through intensive adversarial questioning directed exclusively to
minority jurors. The Minnesota courts have accepted far-ranging
justifications for excluding minority jurors, including the following
examples: living in the same neighborhood (North Minneapolis) as the
defendant; having experience living in a big city; being new to the
neighborhood; working with kids, family members or acquaintances; being
involved in the criminal or juvenile justice system; being too quick to
answer questions; being youthful and inexperienced; being a foster care
worker; knowing a state witness twelve years prior to trial; being too
forgiving; participating in a certain life style; or developing a
"certain rapport" with adverse counsel.
Several persons of color were struck from juries because they
expressed concern about the police or the justice system. Frequently,
the concern developed through intensive adversarial questioning, filled
with leading questions relating to whether the system was fair to
minorities. White venirepersons were not questioned with the same
intensity, even though anyone who had read the newspaper reports of the
Racial Bias Task Force conclusions would likely have concerns about the
fairness of the justice system. Of course, persons of color do not need
to read a task force report to know how that justice system treats them.
In State v. Bowers, the Minnesota Supreme Court analyzed a challenge
for cause, removing the only Black venireperson after extensive
adversarial leading questions about attitudes toward the police and
alcohol. The majority found no purposeful discrimination. Justice Wahl,
in dissent, however, concluded that the prosecutor's reasons for
striking the juror were pretextual. She believed that the prosecutor
questioned this African American juror in a manner designed "to
invoke a response likely to disqualify her," while the prosecutor
had not pursued a similar line of questioning with a white juror who had
"a background of personal experiences [that were] virtually
indistinguishable." Justice Wahl stated, "racial bias [within
the courtroom] mars the integrity of the judicial system and prevents
the idea of democratic government from becoming a reality."
Ultimately, the harm caused by such "discriminatory jury selection
extends beyond that inflicted on the defendant and the excluded juror to
touch the entire community." Certainly, the stories taken back to
local communities by the numerous persons of color excluded as the only
non-white juror on the panel are stories of unequal treatment by the
courts. Ironically, the conclusions fairly reached by members of this
community are then used to further exclude them from participation as
jurors.
Part of the problem in convincing society that the courts will no
longer tolerate discrimination in jury selection is the legal standard
set by the United States Supreme Court. To rebut the accused's prima
facie case of discrimination, all the prosecutor must do is state a
non-discriminatory reason for the strike. The reasons can be
insignificant or even implausible. The Minnesota Supreme Court has
embraced this approach in concluding that to rebut the prima facie case
the prosecutor's reason need not even make sense. It would seem to be a
fairly obvious point that citizens might lack confidence in the fairness
of a justice system in which the prosecutor is permitted to exclude
minority members from the jury to preserve an all white jury, justifying
the action with nonsensical reasons. Racism is serious and should not be
explained away by nonsense.
Theoretically, if the prosecutor's explanation for the strike is not
reasonable, the court could infer that the prosecutor has engaged in
purposeful discrimination. But the Minnesota courts put a heavy burden
on the defendant to prove purposeful discrimination. In many of the
reported appeals, the trial judges have deferred to the good faith of
the prosecutor, and have not carefully scrutinized the prosecutor's
explanation. The trial judge's task is complicated by the reality that
any finding of intentional discrimination may have serious ethical
implications for the prosecutor. It might be appropriate for judges to
give prosecutors the benefit of the doubt before making any finding that
a prosecutor's stated reason is a pretext and the prosecutor has in fact
engaged in impermissible racial discrimination. Giving broad deference
to prosecutors to protect their professional reputations, however, will
lead to the untoward exclusion of minorities from juries.
Not yet having reversed any trial judge's finding on this issue, the
appellate courts give great deference to trial judges. Even where trial
judges make no findings on the issue of purposeful discrimination, or
provide no justification for their decision other than a conclusion that
the prosecutor stated a non-discriminatory reason, the appellate courts
treat this as an "implicit determination" that there was no
purposeful discrimination. Certainly the Minnesota Supreme Court's
approach cannot be described as a vigilant protection against racial
bias in Minnesota jury selection.
A prime example of the nonsense that passes as equal justice in the
Minnesota court system is found in State v. Gaitan. In Gaitan, the
prosecutor excused the only person of color in the jury venire. When
challenged, the prosecutor stated that the juror was excused because of
lack of education and difficulty understanding some terms. The trial
judge who presided over the voir dire disagreed and sustained the Batson
objection reinstating the juror.
The trial judge, however, allowed the prosecutor to research the
issue overnight. The next morning, the prosecutor returned with two
additional "race- neutral" explanations and additional
elaboration for its previously rejected argument. The trial judge then
changed its ruling and denied the Batson objection. The supreme court
affirmed the ruling.
If the stated reasons for excluding a person of color do not work,
the prosecutor now can spend the night researching the laundry list of
acceptable reasons until coming up with one that does work. Certainly,
most venirepersons of color would fit some acceptable category. In his
dissent in Gaitan, Justice Page stated the obvious:
The Court's decision will encourage and permit prosecutors to offer
contrived explanations for challenged peremptory strikes of prospective
jurors. As a result, the prohibition that prosecutors not base
peremptory strikes in jury selection on race or gender, as required by
the Equal Protection Clause of the Fourteenth Amendment, ..., may well
be rendered meaningless.
One might say that allowing this sort of nonsense to satisfy a
requirement under the law will invariably render the law meaningless. In
other contexts, the Minnesota Supreme Court has chosen to extend
protection to Minnesota citizens under state constitutional grounds. If
the Court is serious about restoring confidence that the state justice
system provides equal justice and that racism will not be tolerated, it
must put an end to the accepted practices resulting in the exclusion of
persons of color from juries.
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