Jury justice?

This piece from the New York Times is especially relevant in Ontario where questionable jury vetting by the Crown is admitted to have occurred for years:

In 1986, when the Supreme Court reached a landmark decision forbidding prosecutors from routinely excluding blacks from juries without a good explanation, Justice Thurgood Marshall warned it would not end racial exclusions. Some prosecutors, he wrote in a concurring opinion, would simply invent phony reasons.

The grim truth in Justice Marshall's prediction is illuminated in a new study by the Equal Justice Initiative, a nonprofit legal advocacy group. It shows how pervasive racial exclusions remain, particularly in the South.

Prosecutors routinely use peremptory challenges to remove blacks from juries, aware that all-white juries are statistically far more likely to impose the death penalty. In Jefferson Parish, La., the study says, blacks were removed from juries three times as often as whites. In Houston County, Ala., nearly 80 percent of blacks who qualified for jury service have been struck from capital cases by prosecutors.

The court's 1986 Batson v. Kentucky decision requires prosecutors to explain peremptory challenges, if defendants can show a pattern of racial exclusions. As Justice Marshall predicted, prosecutors have had no trouble coming up with an increasingly absurd list.

One Alabama prosecutor, who removed 11 of 14 blacks from the jury pool in a capital murder case, said one was "arrogant," and another was not "sophisticated." Prosecutors also routinely remove blacks for supposedly exhibiting "low intelligence" or because they live in high-crime neighborhoods. Remarkably, appellate courts rarely overturn verdicts by all-white juries, even when evidence of racial discrimination is obvious.

Justice Marshall's proposed remedy for the problem was eliminating all peremptory challenges. But that could pose its own problems for defendants who may have jurors they want to exclude. There are other ways to achieve justice. Prosecutors with a clear pattern of racial exclusions now face no penalty other than reversal. State authorities or bar associations need to more closely monitor jury selections and fine or disbar prosecutors with clear records of discrimination.