When issues of race and constitutional issues arise, often statistical analysis is cited as part of the discussion. Since the 1986 U.S. Supreme Court decision in Batson v. Kentucky, it has been established that it is a violation of the Equal Protection clause of the U.S. Constitution for a prosecutor in a criminal case to strike potential jurors from a jury pool on the basis of race. Whether statistics can play a part in a court’s analysis was explored by a recent reported opinion from Maryland’s intermediate appellate Court in the case of Daniel Mills v. State of Maryland.
The Court’s opinion indicates that Mills was charged with multiple firearms and drug offenses. During jury selection the prosecutor exercised peremptory challenges (in which a juror may be asked to be excused without showing cause), and struck all African American jurors. The trial judge then looked at the racial composition of the remaining jury pool, and noted that there was still what the Court felt was an appropriately diverse racial makeup of the remaining jurors. The judge therefore rejected defense counsel’s “Batson challenge” to the jury selection process. The jury convicted the defendant of the drug offenses only, and he appealed.
The appellate Court reviewed the proper procedure to decide a Batson challenge to the exercise of jury strikes in a criminal case. It noted that first the lawyer raising the challenge must establish a case of intentional discrimination on its face (such as striking all jurors of one race). If the judge agrees a prima facie case of discrimination is shown, the attorney striking those jurors must then advise the judge of a race neutral reason for striking the jurors. The trial judge then determines whether purposeful discrimination in selecting the jury has been proven.
The appellate Court held that use of a statistical approach in evaluating the jury pool is not the proper method for the trial court to use in determining the first step of the Batson analysis, namely whether a case of discrimination has been shown on its face. That requires the judge to look at the jurors who were struck, and in this case the State conceded that each of the jurors stricken were of the same race. Therefore, the Court found that the trial judge should have gone on to complete the process required to determine if there was discriminatory intent. In this case, the appellate Court referred the case back to the trial court to complete the other steps required to determine if there was purposeful discrimination by the State, which if proven would require a new trial.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.