The Problem of Imbalanced Juries, Part 2: ‘Blackstriking’

Chapter 39 of the Magna Carter says that a person should not face criminal sanctions except “by lawful judgment of his peers”. Indeed, trial by jury for charges dealt with ‘on indictment’ (ie in the higher courts) is one of the few rights guaranteed by the Australian Constitution.

However, as outlined in part one of this blog series, Australia’s current system of jury selection results in anything but ‘juries of one’s peers’ for defendants who are from ethnic minorities.

As discussed, all jurors here are Australian citizens – permanent residents are excluded – and ‘peremptory challenges’ often result in unrepresentative, all ‘white’ – or overwhelmingly ‘white’ – juries deciding the fate of minority defendants.

American researchers have given a term to the unfair prosecutorial practice of ‘challenging’ (removing) jurors based upon the fact that they appear to be from the same racial background as the defendant – that term is ‘blackstriking’.

Unfortunately, there does not seem to be any research in Australia into the prevalence and potential impact of this practice here. We must therefore look abroad for information and guidance.

Overseas Research

A group of Australian lawyers volunteering for Reprieve Australia has released research into blackstriking in Caddo Parish, which is located in Louisiana, USA.

That study found blackstriking to be prevalent – over the last decade, prosecutors were found to have used peremptory challenges against ‘black’ jurors three times as often as ‘whites’.

The finding is troubling in the context of Caddo accounting for the majority of death sentences in Louisiana over the last five years, with most of those sentenced to death being black.

Two prosecutors were responsible for six of those cases. One of them is currently being investigated by the Disciplinary Board of the Louisiana Bar Association for failing to turn over evidence that was favourable to defendants; evidence which suggested defendants were innocent of the charges against them, including one defendant who had been sentenced to death.

Of the death sentences handed-down in Caddo over the last forty years, a whopping 77% were against black defendants, and no whites have ever been sentenced to death for killing black people.

The findings are not dissimilar to those from other parts of the United States, including Michigan where it was found that black jurors were challenged more than twice as often as whites. This finding prompted Judge Weeks from Cumberland Country Superior Court in Lafayette, Michigan to note that:

“The probability of this occurring in a race neutral jury selection process is less than one in 10 trillion.”

Do Jurors Really Discriminate Based on Race?

A multitude of studies have shown that people discriminate against those who are unlike themselves, especially when it comes to race, religion and sexual orientation.

Given the high conviction rates of blacks in the United States, there is certainly an argument that having all white, or predominantly white, juries is a factor which can increase the likelihood of black defendants being found guilty – although this is almost impossible to definitively gauge.

Unfortunately, there does not appear to be any research in Australia about the impact of our jury selection process on the conviction rates of minority defendants. But given the rationale behind having a ‘jury of one’s peers’ in the first place – which is to iron out any potential prejudices – it stands to reason that having a jury entirely comprised of white Australian citizens (and therefore unrepresentative of the general population) could increase the prospect of a conviction, especially if the defendant is charged with an offence associated with his background – such as a Muslim person of so-called ‘Middle Eastern appearance’ charged with terrorism.

However, there are some who dispute the idea that there is a link between white juries and high conviction rates of minorities, even denying that peremptory challenges are ever made on based upon race. Caddo County’s acting District Attorney, Dale Cox, is one of those people. He has stated that:

“Statistics can be misleading. There could be any number of variables that would explain those strikes [ie the removal of black jurors] that have nothing whatsoever to do with race.”

Whatever the case may be, it is clear that ethnic minorities both here and in the US are unlikely to have their fates determined by representative juries – rather, their guilt or innocence falls in the hands of juries, magistrates and judges who are overwhelmingly ‘white’.