Before a jury sits on a criminal or civil trial, they must first be chosen from the eligible citizens in the Parish.  The process of jury selection is a tool used by both the defense and the prosecution to ensure that those who sit on a jury come to serve with an “open mind”.

The process begins when people respond to a jury summons, and go to their local court house to form a jury pool from which the final jurors will be selected. Those people who make up the jury pool are then questioned by attorneys for each side and often the trial judge as well. These questions relate to the potential juror’s background, experiences of life, and their opinions. All this is done to ensure that those twelve men and women who eventually do sit on the jury are capable of weighing all the evidence fairly and objectively. 

If there is a reason why a juror is not capable of serving fairly and objectively the defense or the prosecution can ask the court to excuse that juror for cause.  The juror will be removed from the panel if good cause is shown for the excusal.

In addition to challenges for cause, each attorney can also use a limited number of “peremptory” challenges or “strikes” for which no reason is required. Because of the traditional latitude given to American attorneys in regard to the use of these challenges, there has always been a real threat of misuse of these powers. In Dallas County, Texas, the prosecutors had an express policy of striking African-Americans:

“Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.... [T]hey will not do on juries.”

[1963 Dallas County District Attorney’s training manual]

What does the law say about the proper use of peremptory strikes?
The Supreme Court of the United States has dealt with the use of peremptory strikes on a number of occasions. In the case of Swain v Alabama, the Court addressed the issue of racial disparity in the use of peremptory strikes against black potential jurors. The Court held that excluding black people from a jury on the grounds of race was clearly unconstitutional, violating the 14th Amendment which guarantees equal protection under the law.  The Court went on to say that if this exclusion was not systematic nor over a period of time then it would not rise to the level of a violation.

The jurisprudence was further developed by the case of Batson v Kentucky. In Batson, the Court concluded that it would be unconstitutional to allow purposeful discrimination against minorities in individual cases. The Court developed an elaborate doctrine to establish whether there has been discrimination. Unfortunately, the lower courts have adopted a narrower approach to this question and prosecutors have become ingenious in creating race neutral reasons to justify their strikes.

In February in 2003 in the case of Miller-El v. Cockrell, the Supreme Court widened the scope of evidence the trial court may consider in establishing whether discrimination took place.

The unique advantage of the statistical study showcased on Black Strikes.com is that while the prosecutors can come up with a plausible explanation in individual cases, these explanations are exposed by proof of a pattern of excluding blacks at a much greater rate than whites.

What are “Black Strikes”?
“Back strikes” are a way of conducting jury selection in which the attorney does not strike the juror when he or she is first selected.  Rather, the juror is “back struck” once a full panel of twelve jurors is selected and the balance of the jury can be seen.

Black Strikes are the use by a prosecutor of peremptory strikes to exclude black jurors at a much greater rate than white jurors.