There is a good series on now called More Perfect and it’s about the Supreme Court in the USA. The latest episode is called Object Anyway.
This episode is about a case called Batson v Kentucky and peremptory challenges. When a jury is being selected jury members can be challenged by the defence and prosecution. One kind of challenge is for cause and relates to people who obviously have a conflict of interest or things like that. When a lawyer challenges a juror in this way they have to say why. A peremptory challenge doesn’t have to have a stated reason. It’s a way to get rid of people you think will be biased against your client and this kind of comes from a mixture of the gut and experience. In New Zealand we also have this system, and four peremptory challenges can be made.
Batson v Kentucky comes down to Batson arguing that in his trial the prosecution used peremptory strikes to eliminate all black people from this jury because they thought black people would be more sympathetic to him.
If you want to know why Black Lives Matter has a point then this a great podcast, because Black Lives Matter is not just about cops shooting people it is also about systematic injustice in a justice system. There’s a great illustration of this point early on in the podcast when Batson gets found guilty of theft and gets 20 years.
“20 years?” the interviewer asks.
But an even clearer problem emerges once the Supreme Court finds in his favour and the Batson Rule comes in. Now that blatant racism is flushed out and can’t hide behind a peremptory challenge racism needs to find new ways to flourish. And so, when someone cites Batson on a challenge and the lawyer has to explain why it’s not a challenge about race we come to this:
- I struck this woman because she looked just like the defendant
- I struck this man because he lives in the same neighbourhood as the defendant
Which are code (and not very good code) for race. Here’s one more:
- I struck this man because he testified that he was a mason…
That one is great, because when it transpired that the potential juror was actually a brick mason the judge let the challenge go ahead anyway. In Houston a study found that 80% of potential black jurors were challenged and kept off juries in death penalty cases.
Towards the end of this podcast we come to people defending their actions in challenging black jurors. It’s explained in a very matter of fact way: which people are more likely to think that cops lie? Black people. Of course you’re going to get them off your jury if you want to convict a black man and your lead witness is a cop. True. And the fact that this is true is depressing beyond words.
And what, I wonder, of New Zealand? Research done in 1995 concluded that Māori were under-represented on juries here too. Because juries are drawn from electoral role lists of people within 30 kilometres of the court, and because Māori are still more rural than Pākehā, and less likely to be on the electoral roll the juries get weighted before we even get to challenges. Also, high mobility (sounds good, but means living for short periods in rented accommodation) went summons often went to out of date addresses, and higher incarceration rates for Māori meant more were disqualified.
Once a Māori person makes it to the selection point for a jury the research found that
counsel for the prosecution were twice as likely to challenge Maori potential jurors than non-Maori in the High Court and nearly three times more likely in the District Court. On the other hand, counsel for the defence were two times more likely to challenge non-Maori potential jurors than Maori.
The researchers asked why and got these answers:
the higher number of previous criminal convictions among Maori (as opposed to non-Maori) men; the possibility that Maori jurors might be sympathetic towards or kin of Maori defendants; the belief that some Maori were biased against the police and therefore the prosecution.
That final point exactly mirrors what is said in the More Perfect podcast.
As a result of this research in 1995 “the Solicitor-General issued a direction to all Crown prosecutors instructing them to take whatever steps might be necessary to ensure that male Māori jurors were not disproportionately excluded by prosecutorial challenges.”
The phrase “whatever steps might be necessary” does not inspire much confidence in me. Firstly there is the word “might” and the word “whatever”. Secondly, the actual steps required would be quite significant starting with raising Māori off the bottom of the socio-economic ladder. Which is a pretty big step to take but, you know, might be worth exploring.