Is Justice Blind But Not Color-Blind?

Most of us would never imagine the possibility of people who could not culturally relate to us making decisions about our lives. The white men in Mississippi accused of killing Emmett Till in 1955 went to trial with a jury comprised of all white men in Mississippi. And despite evidence and some acknowledgment of their guilt, those men were acquitted of Till’s murder by that “Jury of their peers.” In the 1950s Southerners would never let their fates be decided by someone who could not understand them or their way of life.  Yet, this same freedom hasn’t been afforded Black criminal defendants in jury selection in America who faced trials by all white juries.

April 30, 2016, marked the thirtieth anniversary of the United States Supreme Court’s decision in Batson v. Kentucky. In Batson, the United States Supreme Court ruled that a prosecutor may not use peremptory challenges in a criminal case (the dismissal of jurors without stating a valid cause for doing so) to exclude jurors based solely on their race. The Court found that such a practice violated the Equal Protection Clause of the Fourteenth Amendment. It was thought that Batson gave lawyers a tool to insure that a minority defendant had a “jury of his peers.” But over time prosecutors in some jurisdictions have become adept at picking all white juries. Now, thirty years later, minority defendants in counties in Texas are routinely facing trials with all white juries. Leaving defendants feeling that although justice wears a blindfold, she isn’t colorblind. Such practices call into question both the necessity and effectiveness of Batson in Texas.


The necessity of some remedy to insure diversity in juries is supported by empirical studies. Studies which were conducted show that in cases involving black defendants, prosecutors sought information on the race of venire members significantly more often than they did in the cases involving white defendants.[1] And prosecutors eliminated prospective Black jurors in those cases using peremptory challenges at a higher rate than white jurors. Furthermore, some prosecutors are trained to strike Black jurors during jury selection. Consider this video of a prosecutor training where the speaker urges attendees to strike black jurors. And earlier this year here in Texas, a Wharton County prosecutor testified that the sitting District Attorney instructed him to strike Black jurors during a trial. Prosecutors have a proclivity to strike Black jurors. Those individual jurors have a right to be involved in the judicial process. Discriminatory use of peremptory challenges violates these individual jurors’ rights. And undermines confidence in the justice system. Citizens feel that the justice system is racist and considers race in decision-making.

Furthermore, diversity in juries has an effect on the outcome of the trial. Statistics show that all white juries convict black defendants at a higher rate. Having just one black juror impacts the conviction rate. Consider this video. And prosecutors are aware of the impact diversity has on juries. But more troubling is that there is a greater risk of the conviction of the innocent. Many of the falsely accused citizens, who were exonerated by the innocence project, were convicted by all white juries.

Although Batson purports to provide protection to criminal defendants and black jurors, systemic violations persist. The effectiveness of the Batson to protect civil rights is dubious. In a study on the use of peremptory challenges by the Caddo Parrish District Attorney’s Office from 2003 to 2012, it was found that prosecutors struck black jurors at three times the rate of non-blacks. Prosecutors have learned to establish reasons for eliminating jurors and courts have been all too apt to acquiesce and accept reasons given by prosecutors. The Caddo Parrish Study revealed some of the reasons prosecutors offered for excluding blacks from juries: They were young or old, single or divorced, religious or not, failed to make eye contact, lived in a poor part of town, had served in the military, had a hyphenated last name, displayed bad posture, were sullen, disrespectful or talkative, had long hair, wore a beard…. To name a few. The reasons seemed neutral but were often things that had no bearing on the citizen’s fitness for being a juror. A pattern of similar sidestepping of Batson has been noted in multiple other Southern States. Studies from across the country reveal that prosecutors in multiple states are likewise striking black jurors in disproportionate numbers. In 2012, a state trial judge in North Carolina found that prosecutors in his state had created a “cheat sheet” of race-neutral reasons to offer when challenged. Among the choices were “air of defiance,” “arms folded” and monosyllabic responses. Given that prosecutors have become adept in sidestepping Batson, change is needed.

On November 2, 2015, the United States Supreme Court heard argument in the case of Foster v. Chatman involving alleged racially motivated peremptory challenges. Notes obtained 20 years later from prosecutors in that case show that, contrary to prosecutors’ claims, race was indeed central to their decisions to exclude certain jurors. Each Black potential juror’s name is highlighted in green and marked with a “B”. The first four names on a handwritten list of “Definite NOs” are those of the Black jurors who were struck. In a separate list, those jurors are ranked against one another, “in case it comes down to having to pick one of the black jurors.” This case may afford the US Supreme Court an opportunity to change the use of peremptory challenges. Just as Justice Thurgood Marshall called for the elimination of peremptory challenges, current Justice Stephen Breyer has also called for the elimination of peremptory challenges. While elimination of peremptory challenges seems like an extreme remedy, it might be necessary. There should be no harm in allowing all qualified jurors to serve on the jury despite on party’s bias towards those people. Perhaps history and the present have shown that prosecutors cannot be trusted to exercise peremptory challenges in a non-discriminatory manner. And maybe justice can pull the blindfold back over her eyes so that all may have confidence that her dispensation of justice has no respect of persons…. No respect of religion…. No respect of race….. and No respect of creed.

[1] Catherine M. Grosso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531 (2012).

About Eric Davis

Eric J. Davis is an assistant public defender with the Harris County Public Defender's Office. He has been a criminal defense attorney since 1997 and was in private practice prior to joining the PD Office. Before his defense practice started, he spent 3 years as a prosecutor honing his trial skills. He has tried over 100 cases to verdict as lead counsel, winning over 80 percent of them. In 2006, Mr. Davis received an "Unsung Hero Award" from the Harris County Criminal Lawyers Association. In that same year, he received the "Man of the Year Award" from the Houston Business and Professional Women's Association, and helped free a man who had been wrongfully imprisoned for over 18 years. In 2016, Eric received the "Mentor of the Year Award" from HCCLA for his continuing commitment to training lawyers.

In 2003, Mr. Davis received a commendation from the Texas State Legislature for his service as Special Counsel to the Texas State Commission on Judicial Conduct. Mr. Davis was lead counsel for the Commission to remove a judge from office who was mistreating citizens by wrongfully jailing them and addressing them in an abusive manner in court.


  1. The people of Harris County are very fortunate to have a lawyer like Eric working on their behalf. So is HCCDLA.

  2. Ken Otten says:

    Insightful and compelling article, Eric.

  3. First, we need to get the State Bar to amend Rule 5.08 of the Rules of Professional Conduct that permits discrimination in jury selection. Second, everyone can urge the State Bar disciplinary committee to disbar Ross Kurtz for his discriminatory practices in Wharton County. Hopefully his directives to employees and past practices will be proven to be a violation of other rules sch as 8.04. I filed a grievance against Ross Kurtz that is pending now.

  4. nancy knox bierman says:

    Thank you for putting such elegant words to such an ugly practice. We are all aware of the astounding waves of whiteness, as we peer out over our jury panels. Even more disturbing is the fact that I have had over 12 jury trials in Texas and all of my clients have been black men. The white clients get better plea offers from the start. That is a given.

  5. Eric J. Davis says:

    Today, the US Supreme Court decided Foster v. Chapman (the case mentioned in the blog). Here is a Statement from Stephen Bright, Counsel of Record for Timothy Foster, in Response to Today’s U.S. Supreme Court Ruling

    Today, the U.S. Supreme Court held in a 7-1 decision, written by Chief Justice John Roberts, that Georgia prosecutors intentionally discriminated in striking all of the African American prospective jurors to get an all-white jury in Mr. Foster’s 1987 capital trial, a finding which requires the conviction and death sentence be set aside. The following is a statement from Stephen Bright, counsel of record for Petitioner and President of Southern Center for Human Rights.

    “Today the U.S. Supreme Court found that prosecutors at Timothy Foster’s capital trial intentionally discriminated in striking black prospective jurors during jury selection and lied about it by giving false reasons for their strikes when the real reason was race. The Court had no choice. The prosecution’s notes which were discovered and introduced as evidence left no doubt that the strikes were motivated by race to get an all-white jury. The prosecutors then asked the jury to sentence Foster to death to deter people in the projects, which were 90% black.

    This discrimination became apparent only because we obtained the prosecution’s notes which revealed their intent to discriminate. Usually that does not happen. The practice of discriminating in striking juries continues in courtrooms across the country. Usually courts ignore patterns of race discrimination and accept false reasons for the strikes. Even after the undeniable evidence of discrimination was presented in this case, the Georgia courts ignored it and upheld Foster’s conviction and death sentence.

    The decision in this case will not end discrimination in jury selection. Justice Thurgood Marshall said in Batson v. Kentucky that it would end only with the elimination of peremptory strikes. The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination.

    Jury strikes motivated by race cannot be tolerated. The exclusion of black citizens from jury service results in juries that do not represent their communities and undermines the credibility and legitimacy of the criminal justice system.”

    – Stephen Bright, Counsel of Record for Petitioner Timothy Foster
    – May 23, 2016

    The Foster v. Chatman Opinion can be accessed here:

    Foster v. Chatman Case Background

    Foster’s case presents an important issue about the continuing discrimination in excluding people of color from juries. Although the Supreme Court held that such discrimination violated the equal protection clause of the Fourteenth Amendment in Batson v. Kentucky (1986), the discrimination has continued, as study after study has shown. (See Equal Justice Initiative, “Illegal Racial Discrimination In Jury Selection: A Continuing Legacy,” this 2012 study from North Carolina, and this 2015 study from Louisiana. Additionally, the Washington Supreme Court expressed dismay in a 2013 opinion both that Batson violations are rampant and that the constitutional Batson protection must be strengthened).

    Timothy Foster is a poor, black, intellectually limited man who was 18-years-old when he was charged with murdering an elderly white woman in Georgia.

    After the prosecution struck 100 percent of the black prospective jurors, an all-white jury convicted Mr. Foster and sentenced him to death in 1987 after the prosecution implored it to impose death to “deter other people out there in the projects.” When Mr. Foster’s trial counsel challenged the prosecution’s removal of all of the black jurors, the prosecution represented to the trial court that the reasons for the dismissals were not based on race. After trial, Mr. Foster’s attorneys requested the prosecution’s notes and the prosecution refused to turn them over and the courts refused to require them to.

    As a result of an open records request, Mr. Foster’s attorneys received the prosecution’s notes almost 20 year later, which showed that (1) black citizens were identified by race; (2) the prosecution’s priority was to strike black citizens before any white prospective jurors; and (3) that the prosecution misrepresented several of their reasons for removing the black jurors to the court.

    The prosecution’s notes confirm that race was the driving factor in their decisions to remove black citizens from the jury. Specifically, the notes show:

    * The prosecution team marked the names of black prospective jurors with a “B” and highlighted each black juror’s name in green on four different copies of the venire list of all the people summoned for jury service. Each of the four lists had a key that said green highlighting “Represents Blacks.” (Brief at pp. 15-16.)

    * The prosecution circled the word “black” next to the “race” question on the juror questionnaires of five black prospective jurors. In addition, the prosecution identified three black prospective jurors as B#1, B#2, and B#3 in their notes. (Brief at p. 17.)

    * The black prospective jurors were ranked against each other in case “it comes down to having to pick one of the black jurors.” This statement indicates that the prosecution’s preferred outcome was an all-white jury, which they achieved through striking each black prospective juror. (Brief at p. 18.)

    * The prosecution also created strike lists that prioritized striking the black prospective jurors over any white prospective jurors. Black citizens were the first five of six prospective jurors on the prosecution’s list of “Definite NOs,” meaning they were slated for definite strikes. (Brief at p. 19.)
    At oral argument on November 2, 2015, Foster’s counsel argued that the prosecution’s misconduct violated the Court’s decision in Batson v. Kentucky. The case presents an opportunity for the Supreme Court to make it clear that such discrimination in the selection of juries is unconstitutional and will not be tolerated.
    The Foster v. Chatman Brief of Petitioner can be accessed here:

    The Joint Appendix, including images of the prosecutor’s notes can be accessed here:
    Volume I:; Volume II:

    The Amicus Brief in Support of Petitioner from Former Prosecutors, which can be accessed here:

    The Foster v. Chatman Brief of Respondent (State of Georgia) can be accessed here:

    Additional Foster v. Chatman materials can be found here: