It’s hard to argue against the notion that prosecutors’ use of peremptory challenges just to get blacks off the jury is racist, wrong and offensive. But the problem with Batson was that its rationale relied on a right that the Constitution doesn’t provide and is in direct conflict with a right that it does. There is no constitutional right to be on a jury. The defendant in a criminal case has a right to trial by jury. In other words, the right belongs to the defendant, not the putative jurors struck because of their race.

Most of the time, these two interests align, so it’s not a problem. A black defendant will want black jurors, presuming a shared experience with police and less inclined to be racially antagonistic to the defendant. Whether that ends up being the case is another matter, but that’s the theory. The problem with Batson, however, is that it couldn’t be grounded in the right of a defendant to a jury that “looks like him,” since that meant if the defendant was white, or Hispanic, or Icelandic, the defense could assert a demand for jurors of whatever identity was a issue. That certainly wasn’t the goal.

And since there was nothing in the Constitution giving a plausible right to random citizens, the Court grounded its outcome in equal protection, that black members of the venire were just as entitled to being selected without regard to race as anyone else. It’s not that the  rationale doesn’t have its appeal, but it comes at the expense of the defendant’s right to a jury of his peers.

The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The constitutional right to an impartial jury is expressly secured for the accused, not the public. But since Batson, this minor detail has been forgotten.

Jury service cannot only be for the white, the lucky and the obstinately stoic in the face of racial injustice. The jury seated in the trial over the killing of Ahmaud Arbery – a Black man who was shot and killed by three white men in Glynn county, Georgia – makes a mockery of the need for a randomly selected jury. Of the 12-person jury, 11 are white and just one is Black, in a county where more than 25% of the residents are Black.

That Black jurors were dismissed because of the way they answered a series of questions about their life experiences and perceptions of racism seems particularly ironic given that only one question was asked of Ahmaud Arbery (“What were you doing back there?”) before he was pursued by three men with guns.

Hard as it may be to imagine, Ahmaud Arbery is not the defendant in the case, but the deceased. This grievance isn’t on behalf of any black person denied their Batson right to be selected as a juror, but on behalf of the putative victim of the crime. Nowhere in the Constitution is there any mention of the right of a victim to a jury of his peers.

But even worse, coming from Sonali Chakravarti, professor of political theory at Wesleyan whose recent “scholarship” focuses on juries, is the blithe assertion that juries are supposed to be random. That’s not how it works.

While the venire, the broad societal group from which jurors are ultimately selected, should reflect a cross-section of the population provided they register to vote, have a drivers license or otherwise make their existence and qualifications available to court system as potential jurors, the racial makeup of the jury pool should reflect the general population. Add to that the fact that they have to not seek a deferral and physically show up when called for jury duty and the pool is reduced. Add to that disqualifications, such as a felony conviction or imprisonment, or being a member of the bar, which many jurisdictions have or are eliminating, and there are further reductions.

But that’s just about the jury pool, not the potential jurors seated in the box and ultimately selected to be on the jury. Once the names of potential jurors are pulled at random from the wheel and seated in the box for voir dire, there’s nothing random about it. It’s not supposed to be random. It’s supposed to afford the defendant his constitutional right to an impartial jury.

There is a legitimate argument that many potential black jurors are stricken, whether for cause or by peremptory strike, based upon their experience with police. Do they harbor animus toward cops? Will they consider the testimony of a police officer fairly and not presume they’re lying scum? This is the “black experience” problem, where the treatment of black people by police comes back to bite the prosecution in the butt. Why, the argument goes, should black people be stricken from the jury because their life experience with police is the product of being treated like garbage? Why should cops get to cause black people to be legitimately stricken because they’re racist toward them? It’s a damn strong argument.

But here, the argument takes a blind leap over the head of the defendant, or in the Arbery case, the three white defendants accused of his murder, because the jury of 11 white people and one black person denies Arbery a jury composed of members of his race. Whether that’s circumstance or deliberate, it’s irrelevant. There is no right to have a jury that looks like Arbery, and to do so would ignore that the Sixth Amendment secures that right only for the defendants, not the victim.