The Missouri Supreme Court, in a case originating in the Jackson County Circuit Court at Independence, recently reviewed and applied the concept previously pronounced by the United States Supreme Court that racial discrimination in the selection of juries in civil cases is unconstitutional.

The Missouri Supreme Court, in a case originating in the Jackson County Circuit Court at Independence, recently reviewed and applied the concept previously pronounced by the United States Supreme Court that racial discrimination in the selection of juries in civil cases is unconstitutional.

The case is Kesler-Ferguson v. Hy-Vee, Inc., where an Independence jury awarded damages to Ms. Kesler-Ferguson after she fell and broke her hip at one of Hy-Vee’s stores.

A review of how juries are selected in Missouri may be helpful to an understanding of the Missouri Supreme Court’s decision to uphold the jury’s verdict.

First, it should be noted that jurors are not “picked” to serve in a case from the larger panel of potential jurors that are part of the selection process. Instead, potential jurors, of which there can be between 30 and 100, or more, are “struck” from service by the lawyers and the court, with the first remaining 12 panel members after the strikes are made being the ones to actually sit on the jury. 

Usually, one or more alternate jurors are also selected to sit through the trial, in case someone is unable to complete their jury service on account of illness or other unforeseen circumstance.

Jury selection begins with the panel of potential jurors being sworn in, followed by the lawyers, and sometimes the judge, asking the panel members questions about their background, personal views and opinions, and possible basis for bias in regard to hearing the case before the court.

This process is called voir dire, and it can, and usually does, take several hours to conclude.

After the voir dire process is concluded, the lawyers then make their strikes, out of the presence of the panel.

First come “strikes for cause,” which are motions to strike a panel member from the jury because of their answers to questions in the voir dire process indicate they would be unable to be an unbiased juror in the case.

Commonly, motions to strike for cause are granted in instances such as where the mother of a police officer states that she would have a difficult time going against the prosecution in a criminal case; the victim of a prior burglary would have a difficult time being fair in the trial of a burglary case; someone who feels they once got the shaft by an insurance company in a claim would have a difficult time being fair in a lawsuit against an insurance company; or someone on the panel has a relationship with one of the parties or the lawyers.

And of course, popular trial strategy is to seek to have the court strike “for cause” as many of the perceived unfavorable jurors as possible.

After the motions to strike for cause are ruled on, the next remaining 18 panel members are then subject to three “peremptory strikes” by each side of the case, leaving the remaining 12 to serve on the jury.

Time was, before the United States Supreme Court decided Batson v. Kentucky in 1986, prosecutors in criminal cases would often routinely use their peremptory strikes to eliminate African Americans from the jury, particularly in a case where an African American was on trial.

However, in Batson, the U.S. Supreme Court held that the Constitution was violated when a prosecutor uses a peremptory strike to strike a panel member solely on the basis of race.  Instead, under Batson, if challenged by the opposing party, a lawyer must advance a legitimate race-neutral reason for a peremptory strike of a racial minority.

Several years later, the court extended the same rule to civil trials, where lawyers defending civil tort claims for money damages have historically had the proclivity to use peremptory strikes to keep minorities off of juries.

In the Kesler-Ferguson case, Hy-Vee’s lawyers tried to use its three peremptory strikes on African-Americans.  The trial judge accepted the race neutral explanation of Hy-Vee’s counsel on the first two, and permitted its peremptory strikes of two African American panel members.

But the trial court found Hy-Vee’s lawyer’s purportedly race neutral basis for the strike of the third African- American panelist to be so flimsy that the trial judge overruled that strike, allowing the juror to serve, which Hy-Vee appealed all the way to the Missouri Supreme Court after the verdict went against it.

In a unanimous decision, the Supreme Court upheld the ruling of the trial judge, and the verdict stands.