Disputed practice still a courtroom fixture; Peremptory challenges survive calls for reform, decades of controversy
Dallas Morning News
August 23, 2005

Prejudice is what peremptory challenges are meant to combat. But Justice Thurgood Marshall knew that history told a different story when he warned in 1986 that the U.S. Supreme Court's attempt to ban lawyers from using discretionary strikes to exclude jurors because of race was destined to fail. The high court's Batson vs. Kentucky ruling, he predicted, "will not end the racial discrimination that peremptories inject into the jury selection process. That goal can be accomplished only by eliminating peremptory challenges entirely."

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 In Dallas County, for example, although blacks appear on juries, prosecutors rejected them at twice the rate they excluded whites, an analysis of court data by The Dallas Morning News showed. Race was found to be among the most important factors in determining whom prosecutors selected and rejected.

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"We're a long way, frankly, from solving the problem," said George Kendall, a New York civil rights lawyer who filed a brief in the same Dallas County case that Justice Breyer used to highlight his concerns about peremptories. Trial lawyers maintain that the ability to exclude prospective jurors for even a suspicion of bias, which peremptories allow, is crucial to the guarantee of a fair trial.

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"Lawyers have grown comfortable with it and are afraid to give up a tool that makes them feel better," said Michael Saks, a professor of law and psychology at Arizona State University. "And they have enough influence over what the rules are that they are going to keep things the way they are."

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