ANNAPOLIS – Legal and civil rights experts say there will be little impact from this week’s Court of Appeals decision that white jurors cannot be excluded on the basis of race.
In interviews, they variously voiced concern that the decision begs the question of discrimination and won’t change how lawyers actually select jurors. It merely confirmed what courts in other states have already ruled.
The decision, issued Tuesday, extends to whites the same protection that the U.S. Supreme Court gave to blacks in 1986, when justices ruled that race could not be the only factor in excluding a potential juror.
“This protection applies equally to white persons and black persons,” Judge John C. Eldrige wrote for the unanimous Maryland court.
But Douglas L. Colbert, University of Maryland law professor who researches jury selection, said the extension to white jurors was unnecessary. “White citizens have never been discriminated against,” he said.
The Maryland decision “is not going to result in greater justice because historically the legal system has been disproportionate[ly] against people of color,” he added. “Mainly it has been African Americans who have been eliminated from juries, and it has been African Americans who have usually been the ones on trial.”
However, Stuart Comstock-Gay, executive director of the Baltimore branch of the American Civil Liberties Union, said the Court of Appeals was making explicit the application of the 1986 ruling.
“I think the Supreme Court decision was meant to give African Americans a fair trial, which historically they had not been getting,” he said. “But while you can’t exactly say whites had not been getting fair trials, you have to apply that decision to all races.”
Comstock-Gay said he and others at the ACLU think the Court of Appeals decision is a positive step.
“We have increasingly gotten to the point where we have to diversify our juries and this is a step to go in that direction,” he said.
Colbert, on the other hand, said the decision will not help juries to become more fair because “predominately white juries have been the prototype for years.”
“Lawyers will just have to come up with a race-neutral reason for eliminating a potential juror – something they should have been doing all along,” he said.
The Maryland ruling dealt with the case of Gary Gilchrist, a black defendant convicted in 1992 in Baltimore City Circuit Court on cocaine possession and distribution charges.
Gilchrist’s attorney, Nancy M. Cohen, excluded four white jurors, action that was challenged by a prosecutor. The trial judge thought Cohen lacked substantive reasons for her challenge, and threw out the entire jury panel. He was convicted by a second jury and sentenced to five years in prison.
The actions of the trial judge were upheld first by the Court of Special Appeals, then by the Court of Appeals.
“A peremptory challenge based on race cannot be squared with equal protection principles,” Judge Eldrige wrote.
The attorney who argued the case for the state, David R. Durfee, said the ruling just confirmed what courts in other states have ruled.
“I don’t think the decision here would cause any great change. Lawyers should have been applying equal treatment all along anyway.”
Cohen, Gilchrist’s public defender, said that jury selection may appear to be race-based for a variety of reasons.
“We know so little about each juror when they are introduced that lawyers use factors to strike jurors like a person’s neighborhood, the way they dress, whether or not they make eye contact,” she said.
As a result, she said, the jury might come out disproportionately one race over another.
“You can affect the jury in that way without meaning to,” she said. -30-