Race-neutral justifications for peremptory strikes shield implicit bias from Batson review

Evidence

According to one analysis, courts will “routinely uphold peremptory challenges based on largely unverifiable race-neutral claims, for example, those based on avoiding eye contact, possessing an apparent lack of intelligence, or showing signs of nervousness” (Smith & Levinson, 2012, p. 818). While prosecutors may not routinely refer to explicit biases for striking a juror, it is often difficult to ascertain prosecutors’ true intentions or categorize the influences that sway their decisions. For example, according to the same analysis, “Prosecutors might associate Black citizens with lack of respect for law enforcement and opposition to the prosecution of drug crimes or use of the death penalty as a punishment” (Smith & Levinson, 2012, p. 819). As a result, Black jurors may be unfairly stereotyped based on the implicit biases that affect Black defendants, depriving Black defendants of a jury representative of their peers. — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 1390

Categorization

• XREF: Exemplifies the sincere-conviction vs measured-bias gap institutionalized: proffered nonracial reasons are unverifiable, so professed neutrality can’t be checked against actual bias.
• corroborated: 2 independent passages support this claim — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law: A Definitive Look at…, 1390