AuthorFrampton, Thomas Ward

TABLE OF CONTENTS INTRODUCTION I. RACIAL EXCLUSION AND CHALLENGES FOR CAUSE A. Louisiana B. Mississippi C. "I Didn't Think There Were Any Left": Reexamining Three Batson Cases 1. Flowers v. Mississippi 2. Foster v. Chatman 3. Snyder v. Louisiana II. THE MISSING LAW OF CHALLENGES FOR CAUSE A. Fair Cross Section B. Equal Protection C. Impartial Jury/Due Process 1. Erroneous Grants of (Prosecutors') Challenges for Cause 2. Erroneous Denials of (Defendants') Challenges for Cause III. CHALLENGES FOR CAUSE AND THE ROLES OF THE JURY A. Government Overreach B. Democratic Control C. Factfinding D. Legitimacy E. Education CONCLUSION INTRODUCTION

Peremptory strikes, and criticism of the permissive constitutional framework regulating them, have dominated the scholarship on race and the jury for the past several decades. (1) The standard critique is well known: Batson v. Kentucky (2) notwithstanding, prosecutors in jurisdictions across the United States continue to wield peremptory strikes to exclude black prospective jurors at a rate far exceeding their elimination of other groups. (3) Causal explanations for these disparities vary--they may stem from overt racial discrimination, 4 or attorneys' implicit biases, (5) or the disparate effect of "race-neutral" criteria that correlate with race (6)--but the figures are troubling regardless. (7) There is now a broad scholarly consensus that Batson has failed to meaningfully limit systemic racial exclusion in jury selection. (8) And, to Batson's most strident critics, studies documenting wide racial disparities in the use of peremptory strikes have validated the argument (urged by Justice Thurgood Marshall and others) that only by abolishing peremptory strikes can we purge the taint of racial bias from jury selection. (9)

Our myopic focus on peremptory strikes, however, has led to the neglect of an adjacent problem: equivalent racial disparities pervade the exercise of challenges for cause. Challenges for cause and peremptory strikes differ in important respects, of course. First, challenges for cause ostensibly "permit rejection of jurors on a narrowly specified ... and legally cognizable basis of partiality"; (10) peremptory strikes generally require no justification (unless they are contested, at which time the proponent's "implausible[,] fantastic[,] silly or superstitious" rationale may suffice). (11) Second, challenges for cause must always be approved by a judge; unless subject to a Batson challenge, peremptory strikes receive no such scrutiny. And third, peremptory strikes are limited in number by statute; a party may raise challenges for cause against every single potential juror, should they wish. But despite these differences, challenges for cause resemble peremptory strikes in one important respect: they both disproportionately reduce black jurors' participation on criminal juries. If the well-documented disparities in how legal actors exercise peremptory strikes are cause for concern (and they are), the existence of similar disparities in the use of challenges for cause should also set off alarm bells.

Yet too often, challenges for cause are treated as an afterthought. Like peremptory strikes, challenges for cause have a venerable common law pedigree, (12) and the Supreme Court often mentions them in passing. (13) But the Court has established few rules governing when jurors may or must be excused "for cause": "Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula." (14) Scholars, too, have shied away from the topic (15): the leading treatise on the "law of juries" devotes seven pages to challenges for cause and seven times that to peremptory strikes. (16) The profound ways in which race shapes the process of "qualifying" the American jury has been overlooked and undertheorized.

This Article's central claim--that black jurors' "qualifications" for jury service, or lack thereof, operate as an important instrument of racial exclusion today--situates the present moment within a broader historical narrative. For over a century, both state and federal actors justified the exclusion of black jurors from criminal trials, in whole or in part, on the grounds that few possess the requisite objectivity (e.g., "sound judgment and fair character" (17)) to serve. Traditionally, this exclusion occurred when officials developed lists of prospective jurors from which individual trial venires were randomly drawn. (18) The ostensible lack of "qualified" black jurors has been invoked since black jury service began in the middle of the nineteenth century; (19) it remained a common refrain until the 1970s, when Congress (20) and the Supreme Court (21) began insisting that jury pools comprise a "fair cross section" of the community. (22) But, through challenges for cause, the practice subtly continues: in courtrooms across America today, prosecutors allege (and judges confirm) that black jurors remain less "qualified" than white jurors to participate in an institution frequently touted as central to American democracy.

Part I reveals the stark racial disparities in how challenges for cause are wielded. Sections I.A and I.B provide an empirical examination of how prosecutors and defense attorneys exercise challenges for cause by analyzing 317 criminal jury trials in Louisiana and 74 criminal jury trials in Mississippi. Prosecutors overwhelmingly use such challenges to exclude black jurors. The racial disparities documented in the prosecutors' exercise of challenges for cause actually exceed the sizeable disparities in their use of peremptory strikes in both datasets. Then, to demonstrate how these general trends play out in individual cases (and to highlight our relative blindness to the phenomenon), Section I.C offers a revisionist account of the Supreme Court's three most recent cases involving racial discrimination in jury selection: Flowers v. Mississippi (2019), (23) Foster v. Chatman (2016), (24) and Snyder v. Louisiana (2008). (25) In each case, the Court took pains to parse prosecutors' justifications for using peremptory strikes against individual jurors, seeking to ascertain whether racial bias infected those decisions. But a return to the original trial records--including full voir dire transcripts and handwritten attorney notes that were not before the Supreme Court--offers a much richer story. In each trial, challenges for cause, not peremptory strikes, eliminated most of the black prospective jurors and enabled the empaneling of an all-white (or nearly all-white) jury.

Part II weighs various explanations for these disparities and explains why they have remained hidden: existing constitutional doctrine offers little opportunity to contest what occurs at the challenge-for-cause stage of jury selection. During the 1970s and 1980s, the Court assertively "constitutionalized" important parts of the jury selection process: the drawing of jury venires and the exercise of peremptory strikes became subject to Sixth and Fourteenth Amendment regulation, respectively. (26) But the Court's simultaneous retreat from the regulation of challenges for cause--beginning just a week after the Court's landmark 1986 ruling in Batson v. Kentucky--has escaped notice. In cases involving the scope of the Sixth Amendment's fair-cross-section requirement, (27) the Fourteenth Amendment's Equal Protection Clause, (28) and the relationship between peremptory strikes and challenges for cause, (29) the Court quietly foreclosed criminal defendants' ability to meaningfully contest the challenge-for-cause process (and, in particular, the disproportionate removal of black jurors through such challenges). Jury selection might look very different--and the massive disparities identified in Part I might not exist--had the Court not ruled as it did.

Part III appraises challenges for cause as they exist today--and, relatedly, the contemporary vision of the "qualified" juror--in light of the traditional roles of the jury, the data presented in Part I, and the legal landscape outlined in Part II. The Framers, the Supreme Court, and legal scholars have defended and celebrated the jury as an institution that (1) protects the individual against governmental overreach; (30) (2) allows the community a democratic voice in articulating public values; (31) (3) finds facts; (32) (4) bolsters the perceived legitimacy and fairness of criminal verdicts; (33) and (5) educates jurors as citizens. (34) On each of these fronts, today's challenges for cause--effectively standardless, insulated from meaningful review, and racially skewed--do more harm than good. We should rethink who is qualified to serve as a juror and how we select them.


    In study after study, scholars have shown that there are stark racial differences in whom prosecutors and defendants exclude through peremptory strikes. (35) But, unnoticed, (36) the same racial discrepancies that have been documented in the use of peremptory strikes exist in the use of challenges for cause, as well.

    In this Part, I analyze data on race and the jury from Louisiana and Mississippi, and I reconstruct the trial record in the three most recent Supreme Court cases involving claimed Batson violations. In both Louisiana and Mississippi, teams of investigative journalists working on independent award-winning projects recently compiled a wealth of information on state-court criminal jury trials. (37) Much of these journalists' source material, including digital scans of court records and trial transcripts, is now available to the public and to researchers; it provides the basis for the analysis in Sections I.A and I.B. In Section I.C, public records requests, visits to courthouse storage rooms, and the assistance of local trial...

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