When prosecutors and defense attorneys pick a jury, they can ask any relevant question of the potential jurors. When a potential juror’s answer indicates they cannot be impartial, the lawyer can legally keep them off the jury.
In addition, each side gets a limited number of “preemptory strikes,” which allow them to kick people out of the jury pool on a hunch or for no reason at all.
If the prosecutor were to intentionally work to keep Black jurors off the jury, that would violate the constitutional rights of the defendant. The U.S. Supreme Court held in a case called Batson v. Kentucky that, although prosecutors can use their preemptory strikes for hunches, they cannot use them to systematically exclude certain jurors so that the jury does not represent a cross-section of society.
Now, however, prosecutors around the country are using preemptory strikes to keep Black Lives Matter supporters off of juries. In one case, the prosecutor said that a Black Lives Matter supporter might not be impartial when it comes to police witnesses.
Is kicking Black Lives Matter supporters off of juries discrimination? Is it fair to the defense? Many critics of the criminal justice system would say we need more jurors who are skeptical of the police. Does aligning yourself with the Black Lives Matter movement make you inherently hostile to the prosecution?
An eager juror turned away
In one California case, Crishala Reed was excited to be called as a juror. The case involved three Black men who were accused of the 2012 murders of a Bay Area couple. Reed was the first juror to be interviewed, and she noticed right away that she was the only Black person in the jury pool.
On her juror questionnaire, Reed said she felt Black people were often given longer sentences for the same crimes that other people committed, but she said this would not affect her ability to be impartial in the particular case.
She also responded she was in favor of the Black Lives Matter movement, although she was not an official group member. She was asked if she supported illegal behavior, such as rioting. She was asked if she supported the destruction of property. She said no and insisted that her support for Black Lives Matter would not interfere with her impartiality.
She was kicked out of the jury pool anyway, on a preemptory strike.
Courts typically give prosecutors wide latitude on when to use preemptory strikes, but Reed was extremely disheartened. She felt weeded out for being Black.