A prosecutor cannot strike a prospective juror because she’s black. Philadelphia criminal appeals lawyer Lloyd Long discusses details surrounding the Pennsylvania’s Superior Court’s decision in the Derrick Edwards case for eight armed robberies throughout Philadelphia.

The Pennsylvania Superior Court’s first published decision of 2018 was no small case. Derrick Edwards was accused of having taken part in eight armed robberies throughout Philadelphia. He was convicted at trial and sentenced to 22 to 44 years’ imprisonment.

On appeal, Edwards challenged the prosecution’s use of strikes during jury selection. Some background: both the prosecution and defense are allowed to strike a certain number of potential jurors when selecting the jury that will hear a case. These strikes are known as “peremptory challenges” and can be used for any number of reasons. Lawyers will often exercise a strike based on a juror’s answers to a questionnaire or the lawyer’s perception of the juror’s outlook on life. There is no precise science to utilizing strikes. Much of it depends on a lawyer’s experience and familiarity with the community.

But there are reasons strikes can’t be used. The prosecution cannot strike a black juror because he might be sympathetic to a black defendant. The defense cannot strike a female juror because she might be sympathetic to a sexual assault victim. Suffice it to say that a strike cannot be used for a discriminatory purpose. If a strike is used improperly, it is subject to a Batson challenge; the name is derived from the US Supreme Court’s 1986 decision in Batson v. Kentucky.

The trial court in Edwards’ case used a system that is unlikely to be repeated given the outcome. It put the gender and racial backgrounds of each juror on the peremptory strike sheet. While the Superior Court found that this practice was “both ill-advised and inappropriate,” it did not grant a new trial on this basis for two reasons. First, there is no case from the United States or Pennsylvania Supreme Courts that prohibit a trial court from keeping a strike sheet listing the race and gender of prospective jurors. The second reason was related to the first. The line of cases prohibiting strikes for discriminatory purposes emphasizes that no single fact is conclusive in deciding whether a strike was improper. Instead, appellate courts are supposed to consider all relevant factors. As such, the trial court’s system was not enough alone to grant a new trial.

The Superior Court went on to review all relevant facts from jury selection and ultimately decided that the prosecutor had improperly struck a black female juror in Edwards’ case. It considered the trial court’s strike sheet as some evidence of discriminatory intent on the part of the prosecutor. More importantly, it considered how the prosecution utilized its eight strikes. Seven were exercised against black jurors and the other was used to strike a juror who was neither white nor black (the opinion is unclear as to this juror’s race). The Court called these statistics “startling.” Finally, the Court found the prosecution’s explanation for striking the black female juror unpersuasive. The prosecutor claimed that when the juror was questioned, she seemed unhappy about being called for jury duty. This reason, the Court determined, could be applied to pretty much any individual called for jury duty — no one wants to be there.

These three factors together were enough for the Superior Court to grant Edwards a new trial.

Judge Stabile dissented. In his view, Edwards’ lawyer failed to properly make out the claim and the majority acted improperly by crafting the argument that led to the grant of a new trial. Still, he found the majority’s reasoning unpersuasive. Because the trial court fashioned the strike sheet that included jurors’ race and gender, Judge Stabile would not have held that as a factor against the Commonwealth. Moreover, Judge Stabile found the majority’s analysis of statistics to be in error because it ignored that Edwards’ lawyer also struck a number of minority jurors. Finally, Judge Stabile thought that the prosecutor’s explanation for striking the black juror was sufficient. He suggested that a prospective juror’s body language and demeanor is sufficient reason to exercise a strike.