The Texas Jury Shuffle: The Dance of Indirect Discrimination?

Texas is a unique state that dances to the beat of its own drummer, and one of the special dances that sets Texas apart from every other state in the union is the jury shuffle. The request for a jury shuffle can be made by either side prior to the commencement of voir dire. The purpose of the shuffle is to take all the jurors who have been seated, shuffle their names, and have them seated once again. After the use of strikes for cause and preemptory challenges, the jury will most likely be made up of roughly the first twenty-four to thirty-two seated jurors. These jurors make up the "strike zone" and one side may wish to shake up the panel so that a group more favorable to their case resides in these seats.

According to Tex. R. Civil. Pro. 223, when a jury shuffle is requested, the court should put the names of the jury panel into a receptacle, shuffle them or shake them up, and draw them back out one by one to determine the new seating arrangement. There is only one jury shuffle allowed per case, so if one side is pleased with the original arrangement, but dislikes the panel after the shuffle, they have no way of remedying the situation aside from using their preemptory strikes and motions for cause strategically.

Many commentators have made the argument that the practice should be abolished because its allows lawyers to discriminate almost without repercussion. However, the shuffle can be used by either side, so if a minority defendant uses a shuffle to put more minority panel members near the front is that discriminating against non-minorities? It has been said that a jury shuffle can be used to indirectly discriminate as opposed to the direct discrimination prohibited by Batson v. Kentucky. However, a Batson challenge may be difficult to prove in the case of a shuffle unless there are clear race, ethnic, or gender boundaries being crossed. 

There is no question that some prosecutors, plaintiffs, and defendants may have used the shuffle in an attempt to keep members of a certain race, religion, occupation or gender off a jury, but it can also be used by those same parties to put more people of a certain classification towards the front of the seating arrangement. The Supreme Court reversed a Texas court in 2005 and set aside Mr. Miller-El’s murder conviction, finding that the jury shuffle was a suspicious act that was one of many apparently race-based decisions perpetrated by the prosecution. On the other hand, Priscilla Slade, former President of Texas Southern University on trial for criminal financial mismanagement and a black woman, employed the shuffle to get a more diverse jury.

The jury shuffle is not a constitutional right, and its stated purpose is to allow for a diverse panel to be randomly chosen; however, isn’t the jury panel already randomly chosen before they are seated? First, a computer program sends out jury summons to randomly selected citizens who are on the jury wheel. Next, the jury panel is further randomized by who actually shows up for jury duty that day, although there is evidence that may actually decrease diversity. Proponents of abolishing the jury shuffle argue that a jury shuffle is never requested to achieve randomness. Nevertheless, because a shuffle can be employed by either side—technically—it can be used to either diversify or un-diversify a jury panel. A shuffle could be utilized to shake up the racial, ethnic, or gender order of a jury panel, or for less controversial strategic reasons. A plaintiff in a medical malpractice case may want to mix up the group because there are five healthcare workers in the strike zone, or the defendant in a child abuse prosecution may wish to shuffle the jurors because there are several teachers and daycare workers near the front of the venire.

The jury shuffle may not be the best-choreographed dance done in a Texas courtroom since it can allow prosecutors to deny a defendant a diverse jury. However, it can also be used in a well-meaning manner to achieve a more diverse or impartial panel. If a computer program attempts to ensure diversity by randomly selecting who is summoned to serve in the first place, then perhaps the fairest thing to do would be to take the jury shuffle away from both sides. Or, perhaps, another step could be added to the dance that allows for a second shuffle by the opposing side. The follow-up shuffle would give the opposition the chance to diversify or un-diversify the jury panel and may lessen the controversial nature of the procedure.