Racial Bias in New Jersey’s Jury Selection Process

Revisiting Foster v. Chatman

In early November, the Supreme Court heard evidence that prosecutors struck all prospective African American jurors from a trial in Georgia, leading to the defendant, an African American 19-year-old, being convicted and sentenced to death by an all-white jury for the murder of an elderly white woman.

The decision to revisit this case arose after Foster’s defense lawyers discovered the prosecution’s notes from the 1987 trial through an open records request in 2006. After obtaining these notes, they found evidence that proved that the prosecution illegally took race into consideration and purposefully struck every prospective African American juror. In fact, one of the documents from the notes shows that potential jurors who were African American had a “B” written above their name and on the juror questionnaire sheets, their race was circled and labeled.

This kind of racial bias was originally ruled unconstitutional in 1986 when the Supreme Court held in Batson v. Kentucky that once a defendant has enough evidence to challenge the State’s motion to exclude a juror based on their racial orientation, the state must come forward with a race-neutral explanation for their reason to exclude that juror.

In addition to this court decision, the jury selection process today has a set of guidelines and questionnaires that must be followed when vetting the competency of a prospective juror. However, this is ultimately a subjective process highly prone to human judgment and error, frequently succumbing to bias and discriminatory practices.

Racial Bias in New Jersey’s Court System

While our State and Federal Constitutions guarantee the right to trial by an impartial jury, there are certain rules in place that allow attorneys to manipulate selection to better suit the context of their case. For example, if an attorney were prosecuting a drug dealer, it is legally more prudent to choose jurors from a lower socio-economic background because they are living with that type of criminal activity every day and would accept the facts as presented. On the other hand, a juror from a rich suburban background is removed from the context of the scenario and may be too politically or economically disparate to be “as nearly impartial as the lot of humanity will admit” (State v. Williams, N.J. 1983).

Voir dire is the name given to the jury selection and rejection process and is like a trial within a trial. When choosing jurors, each party is entitled to an unlimited number of challenges for cause, such as bias, and a limited number of peremptory challenges that permit the removal of prospective jurors without reason for dismissal. Generally speaking, civil cases allow 6 peremptory challenges; criminal cases provide 20 peremptory challenges for the defense and 12 for the state. All other ordinary criminal matters are assigned 10 peremptory challenges to each party.

Voir dire was revolutionized following the 1969 New Jersey court case State v. Manley. Prior to Manley, voir dire was rife with abuses, particularly attorneys’ attempts to indoctrinate jurors to their point of view. Since 1969, trial judges have instituted a regulatory process for questioning jurors in the voir dire process.

Following the 1969 New Jersey State v. Manley case, the next landmark court case surrounding jury selection came in 1986 with New Jersey v. Gilmore. That controversial case saw the prosecutor excuse all 9 black potential jurors. The assistant prosecutor excused 2 for cause and used the rest of his peremptory challenges to remove all African Americans from the jury pool. Since the defendant, in this case, was black, the insistence on race removal was polarizing, as well as flagrantly abusive.

Ultimately the U.S. Supreme Court determined that the State’s use of its peremptory challenges to exclude jurors based on race, religion, ethnicity and gender violated the 6^th amendment of the Constitution. In New Jersey, the state constitution guarantees an impartial jury drawn from a representative cross-section of the community, accounting for religion, race, color, ancestry, national origin, and sex.

Generally, racial motives behind jury selection are vague and difficult to pin down. If a prosecutor removes a juror due to racial bias, he would never admit to such a flagrant violation of the constitution. Generally, if a party believes another party has dismissed a juror for purely racial reasons, they may object to the dismissal and demand the dismissing party explain their reasons. If the dismissing party provides a race-neutral reason for the dismissal and the judge finds the explanation credible, then the juror remains dismissed. If not, the judge has many options, the most severe of which include beginning jury selection anew.

While it is a complicated practice, Rosenberg | Perry & Associates holds our practice to a high standard of professionalism and legality. We seek to choose jurors who are credible, impartial, and contextually appropriate.