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Monday, June 21, 2010

Batson, or What the F*ck?

From a June 2, 2010 story in the NY Times, page A14:

In late April in a courthouse in Madison County, Ala., a prosecutor was asked to explain why he had struck 11 of 14 black potential jurors in a capital murder case.

The district attorney, Robert Broussard, said one had seemed “arrogant” and “pretty vocal.” In another woman, he said he “detected hostility.”

Mr. Broussard also questioned the “sophistication” of a former Army sergeant, a forklift operator with three years of college, a cafeteria manager, an assembly-line worker and a retired Department of Defense program analyst. The analyst, he said, "did not appear to be sophisticated to us in her questionnaire, in that she spelled Wal-Mart, as one of her previous employers, as Wal-marts."

The NY Times story goes on to discuss a new study by the Equal Justice Initiative which examined race in jury selection in eight Southern states: Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee.  Perhaps not surprisingly, the study found that the practice of excluding blacks and other racial minorities from juries remains widespread.  The study notes:

We identified counties where prosecutors have excluded nearly 80% of African Americans qualified for jury service.  We discovered majority-black counties where capital defendants nonetheless were tried by all-white juries.  We found evidence that some prosecutors employed by state and local governments actually have been trained to exclude people on the basis of race and instructed on how to conceal their racial bias.  In many cases, people of color not only have been illegally excluded but also denigrated and insulted with pretextual reasons intended to conceal racial bias.  African Americans have been excluded because they appeared to have “low intelligence”; wore eyeglasses; were single, married, or separated; or were too old for jury service at age 43 or too young at 28.  They have been barred for having relatives who attended historically black colleges; for the way they walk; for chewing gum; and frequently, for living in predominantly black neighborhoods. 

Assuming the study is accurate, I can’t say I’m surprised.  In fact, I doubt anyone’s really surprised.  There’s a reason this story appeared on page A14 of the NY Times, and that the study hasn’t generated more press than it has: nearly twenty-five years after Batson v. Kentucky was decided barring racial discrimination in jury selection, we know this still goes on.  To complicate matters, we also know that race discrimination happens on both sides.  In a trial against a black defendant, prosecutors may use their challenges to strike blacks from the jury, but the defense lawyer is likely playing the game too, using strikes to ensure the presence of blacks on the jury.  Both sides are using race.  At a time when society often claims that we are in a post-racial era, how we select juries suggests otherwise.

For me at least, several questions present themselves.  Is Batson just window dressing?  Put differently, is Batson just a way to give the illusion that our justice system is fair, that Justice is blind, when in fact it isn’t?  After all, any creative lawyer can circumvent Batson by simply coming up with a race-neutral explanation for her decision.  (My students do this.  In fact, we practice it in class to expose Batson’s impotence.)  Or if Batson really does have teeth, as Laura Appleman argued in her article Reports of Batson’s Death Have Been Greatly Exaggerated, can those teeth really address implicit biases?  Can Batson handle intersectionality: e.g., the prosecutor who strikes black women from the jury, but does not strike black men?  And why have we been so reluctant to take up the idea, advanced by Adam Gershowitz for one, of publicly shaming lawyers who engage in racial discrimination?  How can we reconcile our disdain for racial profiling in jury selection with our acceptance of other types of juror profiling?  (Every prosecutor knows to exclude teachers and social workers and other “liberals.”  After one of my trials, a federal judge once told me that prosecutors should also exclude anyone who “looks” extreme.  The judge then explained that I should have excluded an overweight person from the jury, because the juror’s weight made the juror extreme.)  And what about Justice Marshall's contention that we should just get rid of peremptory challenges entirely?  But mostly, when I think of the study about the continued pervasiveness of racial discrimination in jury selection, and the judicial response, the question that really comes to mind is this: What the fuck? 

Posted by Bennett Capers on June 21, 2010 at 09:20 AM | Permalink


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Even when they're not racial, peremptory challenges are discriminatory... and not in anyone's best interest. Just look at how military defense attorneys use their peremptory challenges: Almost invariably against any current commanding officer, and if none are on the panel against anyone with substantial command experience. Sadly, in my experience (career officer myself -- challenged off of over 30 panels!), commanding officers are those most likely to listen to the evidence and give a fair verdict, particularly in the Air Force and Navy.

Instead, loosen the standard for what constitutes "cause" and get rid of peremptory challenges. Then, if someone really does "seem hostile" or "insufficiently sophisticated," an attorney can make the case for that in front of the judge at the time of the challenge, and not with a post hoc rationalization to "remove all of the Canadians from the jury pool."

Posted by: C.E. Petit | Jun 21, 2010 1:41:52 PM

I have long been an advocate for retaining peremptory challenges. But, the time has come, I think, to abolish peremptories for the prosecutor. I am still unwilling to deny the defense side the challenges. True, the defense may (and does) sometimes exclude African-Americans on the basis of race, but the problem is far greater on the prosecutor's side. When I weigh the importance of a defendant's rights against the importance of ridding the trial court system of racism, I come down on the defense side. But, I admit it makes me uncomfortable to do so.

Posted by: Joshua Dressler | Jun 21, 2010 1:02:24 PM

The continual presence of racism seems to be a "f!" moment, not a "what the f!" moment, the latter suggesting surprise.

Justices Breyer and Souter (see, Rice v. Collins) believe that Marshall just might be right.

Posted by: Joe | Jun 21, 2010 10:58:54 AM

Pretty much the most astute commentary on race in jury selection ever: http://www.comedycentral.com/videos/index.jhtml?videoId=11926&title=celebrity-trial-jury-selection

Posted by: BL1Y | Jun 21, 2010 10:41:58 AM

I've recently read three works dealing with facets of our criminal justice system in which my initial reaction could fairly be described as "What the f*ck?" They are:

Angela J. Davis' Arbitrary Justice: The Power of the American Prosecutor (2007), Deborah L. Rhode's Access to Justice (2004), and Sasha Abramsky's American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment (2007).

Needless to say, questions of race loom large as a causal variable in all three books (which is not to say it's the sole or invariably most important variable).

Posted by: Patrick S. O'Donnell | Jun 21, 2010 9:42:48 AM

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