State v. Thompson and Race-Based Jury Selection

The New Jersey Supreme Court recently decided State v. Saladin Thompson, which discusses the use of peremptory challenges to strike potential jurors based on their race.  The decision focuses our attention on jury selection, which is one of the most important and difficult phases of any jury trial.

Many clients who come in for intake interviews ask similar questions, regardless of the nature of their case or charges.  Almost every client wants to know how their case will resolve – what their position will be, and how the case will affect them, when it is all over.  Sometimes, at the very beginning of a case, an attorney can only speculate on how it may end.  This is frequently because discovery may not be available at the very early stages of the case, and it may be almost impossible to have a meaningful discussion concerning the conclusion of the case absent that material.  Further, a case sometimes has to “mature” before the attorney can develop a sense of the direction it is taking.  Repeated discussions with the assigned prosecutor, as well as participation in motion hearings and status conferences before a judge, also provide defense counsel with important insight into the course, and ultimate outcome, of the case.

It is particularly difficult to determine the outcome of a case when a trial is imminent, because the first step in the trial process – jury selection – contains so many unknowns.  A jury will decide whether to convict or acquit, but nobody involved in the case knows who these key players are until they are actually selected and qualified as jurors.  Juries are selected from large groups of individuals who are questioned so as to ascertain their fitness for service in a particular case.  An individual’s responses to the questions are supposed to enable the judge and attorneys to determine whether they are a good “fit” for that case.  Generally speaking, potential jurors can be excused for two reasons.  The first is “for cause”.  This can occur when there is an articulated, somewhat obvious, reason that undeniably renders the prospective juror unfit for service at that trial.  As a simple example, a prospective juror may be excused for cause if they have a personal relationship with one of the attorneys, the judge, or a victim, in the case. 

Attorneys can also exercise one of a set number of peremptory challenges to strike prospective jurors.  Theoretically, an attorney can strike a juror for any one of a myriad of reasons which are frequently known only to counsel.  The attorney should not, however, strike a prospective juror on the basis of certain impermissible factors, such as the juror’s race.  Some attorneys believe that a juror of a certain racial or ethnic group will be either more or less willing to convict “one of their own”.  Thus, a prosecutor who believes this is true may attempt to use peremptory challenges to remove prospective jurors who are the same race as the defendant from the panel, whereas defense counsel may attempt to strike prospective jurors from other racial or ethnic groups so as to fill the jury box with jurors of the same group as their client.

There are two problems with this approach.  First, it is not necessarily true.  In fact, it is completely fallacious to think that a member of a particular racial or ethnic group will be more or less likely to convict or acquit another member of that group simply because of their membership in the group.  I have seen it go both ways at many trials over the years.  Further, and as Thompson reminds us, employing such practices in jury selection is discriminatory and, therefore, a violation of established law.

Thompson discusses the procedure that trial judges in New Jersey are supposed to follow when this issue comes up.  The Court recalled the 1986 decision of State v. Gilmore which outlines a three-step process to be employed when one side accuses the other of unconstitutional discrimination in jury selection.  As an example, say defense counsel accuses the State of employing such practices.  The defense must first make an initial, relatively minimal, showing that the State discriminated against certain prospective jurors by striking them because of their race.  The prosecutor will then be asked to explain each challenge, and will be required to offer a permissible, neutral, basis each of its challenges.  The trial court will then balance the defendant’s initial reasoning against the State’s proffered explanations to determine whether the State discriminated in the exercise of its challenges.  This test was later refined in State v. Osorio, where the Supreme Court further required the trial court to assess whether the State applied its proffered reasons in an even-handed manner, and to consider the overall pattern of the use of the challenges and the composition of the jury ultimately selected to try the case.

These cases all share the same fundamental flaw.  They all try to add certainty to a process that is inherently uncertain.  As noted above, the composition of the jury is one of the most important phases of the trial, and the outcome is the difference between guilt and innocence.  It is, however, very difficult to prepare for it in any meaningful way, since neither attorney has any control over, or knowledge of, the pool from which prospective jurors will be chosen, the manner in which prospective jurors will respond to questioning, or the inventive excuses that prospective jurors will offer so as to be excused from jury service.  (During selection, a prospective juror can ask for a sidebar with the judge and attorneys to discuss personal situations that they do not want to articulate in open court.  Some of the statements people make during these discussions  – which have no basis in reality but are geared solely toward being excused – are absolutely astonishing.  Depending on how they are received by the judge, such responses can result in the striking of a juror that defense counsel wanted to retain.)

Where does all this lead?  The only “known” factor concerning jury selection is that neither the attorneys nor the judge will know anything about the composition of the jury until after it is selected.  By then however, the proverbial horse is out of the barn, and counsel is left to work with what s/he has.  All an attorney can realistically do is depend upon their knowledge of the law, as well as their trial skills and experience, in selecting the best jury for their case under the circumstances.  Additionally, it is almost certainly helpful to also have prior knowledge of the demographics of the geographic area from which prospective jurors are being drawn.  However, before deciding to go to trial, clients need to understand that jury selection is far from an exact science, that decisions concerning prospective jurors are frequently based upon “gut” reactions and, at the beginning of the case, they can know nothing about the people who may ultimately decide how it all ends.

James S. Friedman, LLC represents criminal defendants in the state and federal trial courts in New Jersey and New York City.  If you are looking for an attorney with the knowledge and experience necessary to guide your trial-level case to a positive result, call us.


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