WashU Expert: The role of peremptory challenge in jury selection

All-white jury in Oklahoma case getting national attention

The trial of former Oklahoma City police officer Daniel Hotlzclaw, accused of 36 charges resulting from assaults against several black women while on duty, has begun. Though African Americans make up approximately 16 percent of the population of Oklahoma County, there are no black jurors among the eight men and four women serving at the trial. The racial makeup of the jury is drawing national attention.

Joy

The jury selection process enabled the defense team to shape the jury to its liking by using peremptory challenge, the right of the plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason. It’s a strategy the defense team does not have to justify, said a criminal justice expert at Washington University in St. Louis.

“Prosecutors use peremptory challenges as well, and it is not unusual for prosecutors to use their peremptory challenges to exclude black jurors to achieve an all-white jury when the defendant is black,” said Peter Joy, JD, the Henry Hitchcock Professor of Law and director of the Criminal Justice Clinic.

Joy has published on the importance of race in jury selection.

Although using peremptory challenge to exclude prospective jurors on the basis of race or gender is unconstitutional, some prosecutors and defense lawyers continue to do so because the U.S. Supreme Court case that prohibits it, Batson v. Kentucky, is easy to avoid, Joy said.

“All a prosecutor or defense lawyer has to do is give a race-neutral or gender-neutral reason, and trial judges routinely let them get away with it,” Joy said. “One judge has referred to this as a ‘charade,’ listing some of the reasons that judges have accepted as race-neutral, such as being employed or unemployed; living alone or living with a girlfriend; single or divorced; too young or too old; overeducated or not educated enough; and a host of other pretexts, so-called reasons that are simply pretexts, to cover-up the true motivation.”

Whether the all-white and predominantly male jury will be receptive to a defense where the alleged victims are predominantly African-American women remains to be seen, Joy said.

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