Social media is buzzing around the case of Julius Jones—particularly his recent application for commutation. Mr. Jones was convicted in 2002 of murder in the first degree. Numerous celebrities from Russell Westbrook to Baker Mayfield have written letters in support of commuting Mr. Jones’s sentence of death. Others, including activist/attorney Bryan Stevenson and criminal justice advocate Kim Kardashian, have likewise joined in the appeal to commute Mr. Jones’s sentence.

We won’t relitigate the case here—others have argued both for and against his conviction and sentence. There are, however, issues in his case that deserve attention. One is the use of peremptory strikes to exclude black jurors from serving on juries.

Many letters written on behalf of Mr. Jones point out that the State struck all qualified black jurors from the jury pool except one. To understand the implications, it’s important to know how juries are selected and what legal doctrines control the process of jury selection.

It’s often said that a jury is just 12 people with a driver’s license. This is because Oklahoma juries are selected from a database of license/ID holders provided to the courts by the Commissioner of Public Safety. Once potential jurors are summoned, there are two ways the attorneys for either side can stop them from serving on a jury. The first is by “striking” a juror for cause. Jurors are struck for cause when, for example, they have a personal or financial interest in the case, have a relationship with one of the parties, or have a criminal conviction that disqualifies them for service.

The parties also get a number of “peremptory challenges” (9 each in a first degree murder case). Peremptory challenges are often thought of as giving a party the opportunity to strike a juror for any reason at all. After ratification of the 14th Amendment, the Supreme Court held that criminal defendants are denied equal protection of the laws when jurors of his race are purposefully excluded. Additionally, and importantly, the Court also held that striking jurors on the basis of race violate the rights of the juror to serve on a jury.

So, what remedy does a defendant like Mr. Jones have when he believes the prosecutor has unlawfully excluded jurors on the basis of race? To successfully challenge a prosecutor’s use of peremptory strikes, the defendant must explain why, under the circumstances, the prosecutor acted improperly.

The issue arises when the burden then shifts back to prosecutors to show they did not act improperly. Prosecutors don’t have to show the juror was struck because of something rising to the level of “for cause.” Rather, the prosecutor must merely come up with a race-neutral reason for striking the juror.

Literally any reason will work. Don’t like the juror’s haircut? Her shoes? His stutter? Any reason—other than race (or other protected classes)—will do, as long as the judge believes it. In other words, to survive a challenge by the defendant, the prosecutor simply has to avoid being overtly racist. In one rare case where it was determined the prosecutor improperly used race to exclude jurors, the prosecutor’s notes showed black jurors’ names highlighted in green with a “B” next to their name. Unfortunately, the notes were not discovered until decades after the trial which took place in 1987.

Does Mr. Jones have a valid claim that the State improperly excluded black jurors? As described above, absent some pretty overt evidence of racial discrimination, proving so is very difficult. If the prosecutor had any race-neutral reason for eliminating the other black jurors from the pool, Mr. Jones and others in his situation have no legal recourse under current law. Still, the governor and members of the Pardon and Parole Board can consider whatever they choose in deciding whether to grant his commutation application. If they believe the prosecutor acted wrongly, they can consider that in deciding whether to commute his sentence.