By Cary Holley
Cary Holley is a freshman at the University of Pennsylvania studying Political Science.
The Sixth Amendment of our Constitution guarantees a right that is essential for justice: an impartial jury.  However, this principle is still not guaranteed to all. The legal precedents that appear to protect this right leave loopholes in which discrimination can persist. As a result, some Americans today are not truly granted a jury of their peers.
The jury selection process is at the heart of ensuring one’s right to an impartial jury. During this process counsel has the ability to strike (i.e. remove from the jury) any juror who they believe will not be able to judge the case fairly for whatever reason.  This almost unchecked capability, known as the peremptory challenge, has historically been a potent weapon for perpetuating injustice.  This power has luckily been limited, albeit slightly, by legal precedents.
In 1985 the U.S. Supreme Court heard a case in which a prosecutor struck four black people from the jury, resulting in an all-white jury. In this famous case, Batson v. Kentucky, the Court ruled that the prosecutor’s actions violated the Fourteenth and Sixth amendments. Furthermore, they set a very important precedent: a prosecutor must be able to give a “neutral” reason for removing jurors.  Although this appears to be a step in the right direction, it is fundamental to notice the language. Essentially, as long as a prosecutor can come up with a race neutral reason the Sixth and Fourteenth amendments are not considered to be violated. And, as a case that occurred ten years will soon demonstrate, almost any reason will do.
If Batson v. Kentucky was a step forward in curbing the further marginalization of minority groups in the criminal justice system, Purkett v. Elem in 1995 was a step back. This case was yet another example of a prosecutor striking the black people from a jury. One may wonder, what were the prosecutor’s race neutral reasons for their strikes? Here is one example: “. . . He had long hair hanging down shoulder length, curly, unkempt hair. . .”  While this explanation seems ridiculous to say the least, the Supreme Court allowed it. Moreover, they set the precedent that any neutral explanation, even if it is “silly or superstitious,” is enough to rebut a claim of discrimination.  However, in a recent case called Foster v. Chatham, the Supreme Court challenged such explanations.
In 1986, Timothy Foster was the defendant in a death-penalty trial in Georgia. The prosecution in this case struck the only black jurors.  At the trial’s end, Foster was found guilty and sentenced to death. He requested the prosecution’s jury selection notes but was denied. Eventually, through the Georgia Open Records Act, the notes were finally released and the case worked its way up to the U.S. Supreme Court.  The notes, as one may have guessed, revealed a clear bias: the black jurors’ names were marked and highlighted.  When the prosecutors gave rather illogical, race neutral reasons (i.e. that a 34-year-old black juror was too young) in an effort to comply with the Batson rule, Chief Justice Roberts dismissed the explanations as “nonsense” and “pretextual.”  In a 7-1 decision, with Justice Thomas dissenting, the Court ruled in Foster’s favor and declared that he had been unfairly subjected to discrimination.
Luckily justice was served in this case. Nevertheless, it is essential that this triumph does not distract from the fact that current protections against discriminatory jury selection are inadequate. The “silly or superstitious” ruling from Purkett leaves substantial room for prejudice in the criminal justice system. Moreover, the Foster decision isn’t very reassuring because not everyone can get a hold of incriminating notes from the prosecution. Perhaps without them, the end result in Foster’s case would have looked more like the result in Elem’s. Thus, until thorough legislation is created and precedents leave less room for injustice, having a jury of one’s peers will continue to be a privilege only afforded to some.
 “Trial by a Jury of One’s Peers Law and Legal Definition.” US Legal. Accessed March 21, 2017. https://definitions.uslegal.com/t/trial-by-a-jury-of-ones-peers/
 Staff, LII. “Peremptory challenge.” Legal Information Institute. September 21, 2009. Accessed March 21, 2017. https://www.law.cornell.edu/wex/peremptory_challenge
 “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy.” The Equal Justice Initiative. Accessed March 21, 2017. http://eji.org/reports/illegal-racial-discrimination-in-jury-selection
 “Batson v. Kentucky.” Oyez. Accessed March 21, 2017. https://www.oyez.org/cases/1985/84-6263
 “Purkett v. Elem, 514 U.S. 765 (1995).” Legal Information Institute. Accessed March 21, 2017. https://www.law.cornell.edu/supct/html/94-802.ZPC.html
 “Foster v. Chatham.” Oyez. 2016. Accessed March 21, 2017. https://www.oyez.org/cases/2015/14-8349
 Liptak, Alan. “Supreme Court Finds Racial Bias in Jury Selection for Death Penalty Case.” The New York Times. May 23, 2016. Accessed March 21, 2017. https://www.nytimes.com/2016/05/24/us/supreme-court-black-jurors-death-penalty-georgia.html
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