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 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.

 

 

Judicial Toleration of Racial Bias: Introduction
Tolerating Inadequate Access to Competent Interpreters
Tolerating Racial and Cultural Stereotypes in the Justice System
Tolerating Trial Errors Involving Issues of Race and Culture
Tolerating Racism in the Selection of Jurors
Judicial Tolerance of Racial Bias: Conclusion