The issue of racial disparity in the administration of the death penalty has been a part of modern law. Starting with Furman v. Georgia and continuing on to McCleskey v. Zant, courts have struggled to come to grips with this issue as have those of us defending the most despised amongst us.
Jury selection is actually a process of elimination: Potential jurors are called for jury duty and are questioned and either seated, excused for a cause or excused by a peremptory challenge from either side. Generally, a challenge for cause involves jurors who have a relationship with a party or witness, have a personal experience that would cause them to be unfair or are legally unable to sit.
In capital cases, the number of potential jurors who can be excluded for cause is much larger because anyone who is against the death penalty can be turned away -- and minorities are more likely to find problems with the death penalty.
Then there's the misuse of peremptory challenges -- each side gets a certain number of these that it can use to excuse a juror for any reason. The prosecution often uses this strategy to strike as many minorities from serving as jurors as it can.
The problem this creates is obvious. A black or Hispanic defendant facing death is the most likely to have an all, or nearly all, white jury.
By Andrea D. Lyon, author of "Angel of Death Row: My Life as a Death Penalty Defense Lawyer". Andrea D. Lyon is clinical professor of law, director of the Center for Justice in Capital Cases and associate dean for clinical programs at DePaul University College of Law in Chicago. She began her career at the Cook County Public Defender's Office and served as chief of the Homicide Task Force.
Source: CNN.com, June 24, 2010
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