The Texas Shuffle

As there are many things unique to the great State of Texas, so is the notorious Texas Shuffle (no, not that shuffle).  Embodied in Rule 223 of the Texas Rules of Civil Procedure, the rule allows “upon the demand prior to voir dire examination by any party or attorney in the case reached for trial in such court, shall cause the names of all members of such assigned jury panel in such case to be placed in a receptacle, shuffled, and drawn, and such names shall be transcribed in the order drawn on the jury list from which the jury is to be selected to try such case. There shall be only one shuffle and drawing by the trial judge in each case.”  Texas is the only jurisdiction in the country that allows for such a practice.  In practice, this rule allows for either side of a civil or criminal case to request for a literal reshuffle of a jury panel before voir dire.  For example, “Juror #1 in the panel will likely serve on the jury unless stricken for cause or removed by use of a peremptory strike. So, shuffling the panel can be valuable, if a lot of the people with low numbers are people you don’t want on your jury but cannot strike for cause.”

Although the rule’s purpose was “to ensure randomness and fairness in jury selection,” it has gained a dubious distinction of being abused for the invidious purpose of racial discrimination. Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 306 (2004).  It also does not help that Texas has had a history of racial discrimination in trials.  For example, “in 1963, a Texas training manual instructed prosecutors not to ‘take Jews, negroes, dagos, Mexicans, or a member of any minority race on a jury, no matter how rich or how well educated,’ [while a] similar manual published in 1986 carried the memorable advice that it was ‘not advisable to select potential jurors with multiple gold chains around their necks.’”

In 2005, Thomas Miller-El, successfully argued his case to the U.S. Supreme Court overturning his death sentence.  The Supreme Court found that the jury selection process was tainted due to the prosecutor’s use of peremptory strikes and abuse of the Texas jury shuffle.  The Supreme Court explained “the prosecution's decision to seek a jury shuffle when a predominant number of African–Americans were seated in the front of the panel, along with its decision to delay a formal objection to the defense's shuffle until after the new racial composition was revealed, raise[d] a suspicion that the State sought to exclude African–Americans from the jury. Our concerns [were] amplified by the fact that the state court also had before it, and apparently ignored, testimony demonstrating that the Dallas County District Attorney's Office had, by its own admission, used this process to manipulate the racial composition of the jury in the past.”  In this case, where 108 potential jurors, of which twenty were African-American, only one African-American made it on to the jury. 

It has been predicted that this antiquated rule, which has the clear potential of abuse, will be repealed.  With many calling for its outright abolition (Gallagher, see above), some have suggested reforming the rule by mandating the shuffle take place in open court. As one author puts it, “[r]equiring judges to shuffle the jury in open court ensures the random selection of juries while removing the arbitrariness that attends jury shuffles granted on the motion of parties. Moreover, it would eliminate procedural defects that have resulted in the reversal of criminal convictions.” John D. White, Constitutional Law-Equal Protection-A New Hand from the Same Deck of Cards-Randomness and the Intersection of Race with Gender in the Texas Jury Shuffle, 40 S. Tex. L. Rev. 509, 538 (1999).