Cross-examining the “13th Juror”

“Prejudice,” the legal scholar Jerome Frank once noted, “is the 13th juror.” And during a February symposium titled “Race, Crime and the Constitution,” sponsored by the Law School’s Journal of Constitutional Law, a panel of scholars examining the subject of “Race and Juries” offered persuasive evidence that the 13th juror is still a familiar face in American courtrooms.
    According to David Baldus, professor of law at the University of Iowa and author of a 1980 study titled “Statistical Proof of Discrimination”:

  • An African-American male from Philadelphia is three times more likely to receive the death penalty than a white male charged with a similar crime.
  • Prosecutors “strike” (eliminate as potential jurors) African Americans 31 percent more often than do defense counsels. Young black males are struck by prosecutors 74 percent of the time, while older white males are struck 15 percent of the time.
  • Defense counsels strike young black males 15 percent of the time but strike older white males at a rate of 68 percent.
  • Black jurors are most likely to be struck in cases in which a black defendant is on trial for the killing of a white victim, yet blacks are least frequently struck by the prosecution when a white defendant is charged with killing a black victim.

William J. Bowers, professor of law at Northeastern University and author of two books on capital punishment, reported that the presence of one black juror on a panel reduced the likelihood of a death sentence from 71 percent to 33 percent. When a black person was accused of killing a white person, white jurors voted for guilt 40 percent of the time, as opposed to 16 percent for black jurors. Bowers’ interviews with jurors revealed that black jurors usually focused on the mitigating and aggravating factors involved in a crime, whereas white jurors were most concerned about the future danger that the defendant posed to society.
    In the 1986 case Batson vs. Kentucky, the Supreme Court ruled that prosecutors cannot strike potential jurors solely on the basis of race, yet it left the burden of proving discrimination on defense lawyers, noted David Zuckerman, a trial and appellate attorney for the Defenders Association of Philadelphia. Zuckerman described the implications of that decision as the “false hope of Batson.”
    Among the potential remedies suggested for these disparities was to “level the playing field” by giving the defendant more peremptory strikes than the prosecution. Another, offered by Carol Steiker, former law clerk for the late Justice Thurgood Marshall, was to adopt the British model eliminating peremptory challenges altogether. 
    The panel overwhelmingly supported proposals by the American Bar Association, the Pennsylvania Bar Association and the Philadelphia Bar Association calling for a moratorium on the death penalty until further study could be done on the fairness of the process; shortly after the symposium, Illinois Governor George Ryan imposed such a moratorium in that state.
    In the view of Samuel Gross, the Thomas and Mabel Long Professor of Law at the University of Michigan and a cooperating attorney with the NAACP’s Legal Defense & Education Fund, the whole system of capital punishment in the United States is a product of “hypocrisy and willful blindness”—and one that often merely reflects the racial prejudice “that permeates every level of our society.”

—Angus Love

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