Lorio Forensics

Ahmaud Arbery and Peremptory Challenges

The jury in the Ahmaud Arbery case was composed of 11 white jurors. Prosecutors argued that defense lawyers struck eight potential Black jurors because of their race but Judge Timothy Walmsley chose not to change the jury’s racial makeup. The optics, for prosecutors, were secondary to the historic realities of race in the American justice system. Many welcomed the verdict but it’s clear that representation still matters in jury selection and the pursuit of justice is closely intertwined with progress on this front. There is one potential solution to the issue and the state of Arizona is pioneering its use.

ARIZONA ELIMINATES PEREMPTORY CHALLENGES

Arizona’s Supreme Court recently announced that it will eliminate peremptory challenges in the state, effectively making cultural competency a required skill for prosecutors—and giving black and brown defendants better odds at truly having a jury of their peers. The jury box is not spared from racial inequity. And, as if often the case, it is there by design. Although both Congress and the U.S. Supreme Court have made it illegal to eliminate potential jurors due to their race, prosecutors continue to systematically exclude Black potential jurors in cases with Black defendants through the “peremptory strike” process, as documented by the Equal Justice Initiative, The Marshall Project, the University of Michigan and others. In a racially stratified country, race shapes lived experiences.

People who are members of a minoritized group naturally have more real life experiences with that group, potentially lessening the impact of race-based stereotypes and mischaracterizations. When jurors have things in common with defendants, they may be more likely to understand the defendant’s perspective, and, just as importantly, to fully appreciate their humanity. This is part of the justification for defendants’ right to a jury of their peers, a right undermined by denying Black defendants Black jurors. The job of a prosecutor is to prove guilt beyond a reasonable doubt. Race, whether we are comfortable admitting it or not, is a factor in all things. To prove a case to people like you and unlike the defendant is one thing, to prove your case to people who experience, and in turn, view the world differently is another. 

Peremptory challenges have, for years, allowed prosecutors to avoid the uncertainty with proving their cases against black defendants to black jurors. Justice Thurgood Marshall proposed the elimination of peremptory challenges well over 30 years ago, to the end of eradicating racial discrimination in prosecutions. The issue isn’t limited to Arizona, although their Supreme Court’s decision may have ripple effects. Our recent census sent a clear indication that voter rolls are darkening and with them, the pool of potential jurors. Just as the strategy of “voter suppression” cannot sustain political might, peremptory challenges also have limitations, when the larger voter pool continues to diversify. The world is changing and with it the legal profession as a whole. Innocence and guilt may very well be decided on the basis of which side can communicate across cultures effectively. Arizona’s conservative Supreme Court sees the future and so should we.

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