I should probably begin with a disclaimer that this post is for nerds.  Cool people can read it, too.  But don’t blame me if you leave half way through to find some good click bate or something.  Anyway…

On Monday the Supreme Court heard oral arguments in Foster v. Chatman, a challenge to a murder conviction in which the prosecution clearly (and I mean very clearly) excluded black people from the jury.  You can nerd out to all the pertinent documents here.

Defense attorneys and prosecutors are permitted to exercise peremptory challenges to exclude certain jurors without explanation (as opposed to excluding a juror for cause, when they must explain why the potential juror is not acceptable).  Under the Supreme Court’s previous ruling in Batson v. Kentucky, a peremptory challenge may not be used to exclude a juror on the basis of race.

Of course, because attorneys don’t have to explain their reason for exercising a peremptory challenge they still can and often do get away with race-based exclusions.  Statistics show that prosecutors very commonly utilize the peremptory challenge to exclude blacks from juries when the defendant is also black.  And when questioned, its typically not difficult for a prosecutor to come up with some logical justification for the challenge aside from race.

Foster is in front of the Supreme Court because it’s a special case.  Here, we have copies of the prosecution’s jury selection notes, showing that the potential black jurors were labeled as such and deliberately excluded.  And, the “justifications” for the exclusions that are now being offered by the State are blatantly vague or obviously incorrect (the State claims that one juror was excluded because she had a cousin in jail, despite conceding that prosecutors did not know of that fact at the time the peremptory challenge was made; they also argue that prosecutors probably made notes labeling the black potential jurors so they would have something to show that they weren’t excluding them based on race if they were ever questioned, which is one of the most beautifully backward pieces of nonsense I’ve ever heard).

The Supremes to the rescue!  On Monday the Court seemed extremely skeptical of the prosecution’s methods in this case.  Of course, as so often happens, another procedural question arose that might get in the way of the Court even issuing a ruling (I won’t dig into that issue, it’s nerd stuff even by nerd standards).  So we’ll just have to wait and see if the Court decides the case at all.

What’s important about Foster is that, regardless of how SCOTUS ultimately rules, it’s bringing an important topic to the forefront.  What the prosecutors did in this case was unlawful and wrong.  But the only reason the peremptory challenges in Foster can now be challenged in court is that we have a mountain of evidence to show us what the prosecutors were actually trying to accomplish.  It’s actually pretty incredible that they left such a clear paper trail when what they were doing was a blatant violation of established legal principles.

But what about the cases where the only evidence of the prosecution’s motive is circumstantial?  We know that peremptory challenges are routinely used to keep black people off of juries.  We know that because generally speaking black people are underrepresented on juries in criminal cases compared to the general population.  But the fact that we can easily establish that peremptory challenges are improperly used in general does not help us establish improper use in any particular case.  Indeed, there may be plenty of totally legitimate reasons for the exclusion of one particular black person from a jury.  It’s not until we get a case with such insurmountable evidence as Foster that the prosecution’s challenge can be exposed for what it really is.

So what’s the solution?  It seems obvious, doesn’t it?  The peremptory challenge should go the way of the Dodo.  The peremptory challenge is one of those relics that’s so ingrained in our justice system that many attorneys consider it indispensable.  But is it?  Why shouldn’t we require parties to state a reason for exclusion of all jurors?  At least to the judge privately, if not in the open courtroom.  Just because something has been around for a long time doesn’t mean we have to keep acting like it’s a good thing (the films of Jerry Lewis, for example).  Even if the Court doesn’t ultimately make a ruling in Foster, the case might be valuable in spurring a discussion on a topic that ordinary doesn’t get much attention.