A jury of your peers? Not always.

Non-lawyers sometimes think the jury pool will look like them, but often that is not the case. What you get is jurors who don't know the parties or the lawyers, who can swear they can be fair and impartial. There are ways to challenge jury selection, but it's not easy. The plaintiff failed in this case.

The case is DeVorce v. Phillips, a summary order decided on March 25. This is a habeas corpus action. Plaintiff was found guilty of God knows what crime. At jury selection in state court, the prosecution tried to exclude a black juror, resulting in a challenge rate of 3 out of 7 jurors, or 42.8 percent. Five of the 26 prospective jurors were black, a 19.2 percent ratio. While the trial court could have ruled that DeVorce made out a prima facie case of jury selection discrimination, it was not required to do so, the Court of Appeals (Jacobs, Lohier and Geraci [D.J.]) says. Besides, the Second Circuit says, there is not enough information in the record to really know if the jury process was infected by racism. We don't know the composition of the entire jury venire, or a clear indication of which strikes were challenged and on what ground.

DeVorce did make a Batson challenge at the criminal trial. The Supreme Court's Batson case prohibits the removal of black jurors for racial reasons. If the prosecutor tries to exclude a black juror and cannot give a race-neutral reason, then the challenge is rejected, and the defendant has a potential issue on appeal. When the prosecutor tried to remove a black juror, he said it was because (1) she was a Jehovah's Witness; (2) she was not comfortable sitting in judgement of someone else and (3) she lived in Mount Vernon. The Mount Vernon answer sounds suspicious to me, but the prosecutor got away with this based on excuse number (2). As the trial court has broad discretion to assess prosecutor credibility in Batson challenges, this habeas challenge fails, and DeVorce remains in jail.