The Texas Shuffle: A Re-Do On "Random"

Many processes in jury selections are based around the notion that a fair jury is an important part of a fair trial.  Potential jurors are subject to voir dire, where potential biases can be rooted out before trial begins.  This process allows most of the country to make sure all trials are fair.

In Texas, though, an additional process exists whereby an entire potential jury pool is removed at the request of the attorneys.  The process is known as a jury shuffle.  The shuffle allows a party to review the potential jury pool--before formal voir dire has begun--and decide if an entirely new pool would be beneficial.  The process is designed to provide a new pool to take the place of one that may seem particularly filled with bias.  But the process is not without its flaws.  

First, the process opens the door to discrimination against certain types of jurors. In his article in the Saint Mary's Law Journal, Michael Gallagher cites a laundry list of cases where criminal defendants have complained that the process discriminates against minorities in particular because it allows jury pools to be completely turned away if the prosecutor decides they want fewer minorities on the final jury. In the case of Miller-El v. Cockrell, the court noted that several former members of the Dallas County District Attorney's Office believed that the office had a systematic policy of excluding African-American venire members.  Even worse, the court also referenced evidence that the same District Attorney's office had adopted a formal policy to exclude minorities from juries. Gallagher notes that the recourse for a defendant who feels that a shuffle may involve foul play is quite limited, as many courts declined to extend the availability of Batson challenges to defendants who wished to object to a jury shuffle.  The Batson test, while notably criticized for its shortcomings in protecting minorities, would at least offer some protection to parties who may see their only real chance at a jury of their peers shuffled back into the deck.

Further suspicion that jury shuffles may be ripe with racial discrimination is furthered by the fact that the juries are shuffled without the parties knowing much about the potential jurors at all.  While the attorneys who request the shuffle the jury do have copies surveys taken by the jury pool, they don't know much else about the panel except for how they look.  It's difficult to believe that such large changes to a jury pool based solely on demographic information are all well-founded or without questionable motives.  Cases of such discrimination have popped up on a few occasions.  Of course, such discrimination has been made illegal, but all an attorney must do to side-step suspicion is provide a facially valid reason for requesting a shuffle.

Another major problem with the process is that a shuffle may only be requested once per trial.  This means that only one side has the option of requesting a shuffle. If a party has reason to believe that extreme bias exists among a jury pool, that party has the right to request a new pool.  However, if that new pool shows signs of even stronger bias, the other party is not permitted to make the same request.  The process is akin to a card game where both players analyze their cards before the game begins.  If one player thinks his cards are bad, he can request that both players get new cards, even if the other player thought his hand was fair.  If the second set of cards seems to grossly favor the player who requested the new hand, there is nothing the other party can do about it.  Unfairness in a card game is one thing, but when an actual jury ruling can be altered this way, the stakes are much higher.  

Jury pools are supposed to be random--just ask the other 49 states, none of whom allow a jury shuffle.  The jury shuffle allows one party (and only one party) to get a re-do on this random process. Without more protection against discrimination or more fairness for the other party, Texas should stop the shuffling and let the process work the way it's supposed to.