Opinion: What’s wrong with the jury selection process

Editor’s note: Miriam Krinsky is the executive director of Fair and Just Prosecution, a national network of elected prosecutors seeking criminal justice reforms; a former federal prosecutor; and the author of “Change From Within: Reimagining the 21st-Century Prosecutor.” Chris Kemmitt and Adam Murphy are lawyers with the NAACP Legal Defense & and Educational Fund Inc. and regularly litigate jury discrimination claims in state and federal court. The opinions expressed in this commentary are their own. Read more opinion at CNN.

Our legal system guarantees individuals facing trial on criminal charges an impartial jury of their peers. Unfortunately, that guarantee isn’t being honored in every case or courtroom across our country.

In Alameda County, California, District Attorney Pamela Price recently unearthed evidence that appears to back allegations of deeply troubling and discriminatory conduct by county prosecutors in California death penalty cases.

Strong evidence suggests that prosecutors have systemically excluded Black and Jewish people from serving as jurors based solely on their race and ethnicity for years, according to US District Judge Vince Chhabria.

Price announced in April that the judge had ordered her office to review all death penalty cases in Alameda County — 35 cases are now being investigated — after evidence emerged in prosecutors’ notes on jury selection from a 1995 capital murder case. The judge is presiding over the ongoing case of Ernest Dykes, who is on death row.

This alleged abuse of so-called peremptory challenges spotlights a discriminatory defect in our legal system. And rather than merely fixing this problem and the resulting injustices after the fact — as Price has commendably committed to do — the time is ripe to consider whether prosecutors should stop using peremptory challenges altogether.

Peremptory strikes allow a party in a legal case to remove potential jurors before trial for any reason other than a person’s race, religion, ethnicity or gender.

Despite clear constitutional prohibitions against race-based exclusion, handwritten notes in Dykes’ case from past prosecutors in Alameda County revealed what appears to be appalling discrimination, including prosecutors calling a Black woman “short, fat, troll.” Other notes were found describing another potential juror as “Banker. Jew?,” according to some notes Price’s office shared with KQED, a public radio and TV station in San Francisco.

The notes appear to show previous prosecutors intentionally excluded Jewish and Black female jurors from the jury pool, according to the district attorney’s office.

This alleged pattern of discrimination is not unique to Alameda County. The case of Curtis Flowers, an innocent Black man wrongfully convicted in Mississippi, serves as another chilling example. Over six trials, the prosecution systematically struck nearly every Black juror — 41 out of 42 — revealing an agenda to stack the jury with individuals who do not reflect the diversity of the community.

Patterns of racial bias in jury selection are deeply rooted in the American legal system. Prosecutors routinely exploit peremptory challenges to exclude Black individuals, distorting the composition of juries and undermining the fairness of our legal system, as detailed in a recent report by the Equal Justice Initiative, a nonprofit organization that provides legal representation to people who cannot afford counsel.

Strike disparities have been found in multiple states where it has been studied, including California, Kansas, Louisiana, Mississippi, North Carolina, South Carolina and Pennsylvania.

And executive and judicial reports published in numerous other states, such as Arizona, Connecticut, New York, New Jersey and Washington, have all recognized the persistence of racially discriminatory peremptory strikes.

This flaw in our system is not new. In 1986, the US Supreme Court tried to halt centuries of discriminatory jury selection in Batson v. Kentucky, but prosecutors have successfully evaded Batson’s commands in the ensuing decades.

Among the reasons why, Batson requires a defendant to prove that the prosecutor intentionally discriminated based on race, which is both difficult to prove and incapable of addressing implicit bias.

It is far too easy for prosecutors to mask race-based decisions by identifying other reasons, when asked, for excluding jurors. And in other instances, even well-meaning prosecutors can make discriminatory decisions when exercising peremptory strikes; research demonstrates that reliance on bias and stereotypes is heightened in stressful and fast-paced environments.

While the exercise of peremptories by defendants can and should be predicated on a defense lawyers’ aim to find jurors they believe will be sympathetic to their client, the right to use peremptories in jury selection should not necessarily be a two-way street.

Under the rules of professional responsibility, prosecutors are classified as ministers of justice with special ethical duties to ensure the fairness of the judicial process and to make democracy — and the right to serve on juries — accessible to their own constituents. The duty of a prosecutor is to seek a just verdict, not to “win” a guilty verdict at all costs.

The consequences of biased juries can mean the difference between life and death or liberty and incarceration. They breed errors, perpetuate biases against defendants of color and fuel a cycle of wrongful convictions.

Eliminating or forgoing peremptory challenges by prosecutors does not diminish their ability to weed out biased jurors; rather, it removes a tool that perpetuates racism, strips members of our community of their right to serve on juries and undermines the integrity of our judicial process.

It is a simple and necessary step toward dismantling systemic racism within our legal system and restoring faith in our pursuit of justice.