Mimesis Law
17 January 2021

A Batson Cure Worse Than The Disease (Update)

Aug. 6, 2015 (Mimesis Law) — When there is a problem in the legal system, people rush to find a cure, usually the most obvious thing possible. The problem is that the legal system has been constructed bit by bit over forever, creating what is best described as a Rube Goldberg machine, where each piece connects to another piece in awkward and inexplicable ways. Change one and ten other parts of the ridiculous machine fail.

Or to put it otherwise, the cure is often worse than the disease. This is why Linda Greenhouse’s New York Times proposal to “fix” the Batson problem is just a horrible idea.  The Supreme Court, in Batson v. Kentucky, held “that prosecutors could be required to provide a race neutral explanation when their use of peremptory challenges to strike black potential jurors raised an inference of discrimination.”

There’s a racist undertone to Batson, the assumption that jurors of a certain race will vote, or at least by more understanding, to defendants of their own race, like Clarence Thomas sitting in Thurgood Marshall’s chair at the Court. But stereotyping seems to be acceptable in one direction, if not the other.  It’s unclear that it’s true, but empirical analysis of jurors’ sympathies has always been notoriously bullshit.

Greenhouse notes that the Supreme Court has granted cert in the case of Timothy Foster, a particularly flagrant example of a prosecutor kicking all the black potential jurors off the case and proffering the most nonsensical reasons for doing so. The judge nodded dutifully, said, “well, okay then,” and was the end of Batson.

In a criminal case in Floyd County, Ga., the prosecution struck all four black potential jurors. Responding to the judge’s questions at the “Batson hearing” that followed the defense lawyer’s objection, the prosecutor claimed to have struck one woman because of her “age being so close to the defendant.” She was 34 and the defendant was 19. Another black potential juror was struck for having a son who was once convicted of stealing hubcaps from a car — “basically the same thing that this defendant is charged with,” the prosecutor explained to the judge. The charge against the defendant was capital murder.

Pretty much everybody agrees that this was a flagrant example of what’s wrong with Batson, stock excuses and judges disinclined to call prosecutors out for using them.  But the prosecutor in Foster was lazy, his excuses were facially nonsensical and even other prosecutors cringe at the fact that the trial judge, and appellate judges, shrugged.

But suppose Mr. Foster does win his case. What then? If the justices treat what happened in this case as an extreme outlier — a fact-bound path of least resistance — it’s possible they will avoid rather than confront the systemic problem that the post-Batson experience demonstrates. The problem is deeper than prosecutors gaming the system. It lies with the system itself.

What about prosecutors who come up with more facially reasonable justifications for striking black jurors? Problem solved?  With a little bit of effort, a decent lawyer ought to be able to come up with a race neutral excuse to strike pretty much anybody. It’s just not that hard.  So Greenhouse offers a “thought experiment.”

What if we abolished peremptory challenges? There is nothing in the Constitution that requires them.

She explains at length that peremptory challenges aren’t magic, but gut.

Peremptory challenges — for which, typically, no reason need be given — are anchored deeply in the English common law tradition, which invites lawyers to shape a jury based on strategy and instinct. The problem, as Mark W. Bennett, a senior federal district judge in Iowa, pointed out in an article in the Harvard Law & Policy Review, is that relying on instinct almost inevitably means acting on the basis of implicit bias, about which researchers have learned a great deal in recent years.

To reject the prosecutor’s explanation of his or her actual motive, the judge has basically to find that the prosecutor is lying, hardly a welcome task for a judge who is most likely elected, and who will be seeing the same prosecutor in case after case.*

Nothing personal, Judge Bennett, but judges with life tenure aren’t very good at smacking prosecutors who lie either. But I disgress.  Picking jurors is voodoo wrapped in a bow, as if asking a laundry list of questions, assuming the judge gives us time and allowance, will let us peer into their nasty, prejudiced minds and ferret out their inner bias.  It’s malarkey, but we do it because it’s all we can do to try and find jurors who aren’t inclined to listen patiently before offering to push the plunger themselves.

But Greenhouse has never picked a jury.  There is an industry of experts at jury selection, limited to very wealthy defendants because they charge a fortune for their services, who claim to be able to pick the jurors most inclined to be sympathetic to the defense. It’s nonsense, both in the sense that they have special mind-reading powers and that the defense gets to pick jurors it wants.

The sad reality of jury selection is that we strive to eliminate from the jury those who appear most sympathetic to the other side. We don’t get good jurors. We just get rid of bad ones, if we can.

How does that happen? Meet our bestest friend ever, peremptory challenges. Aside from those potential jurors whose spouses and best friends are cops, there are very few jurors stricken for cause. Almost no one announced that they cannot be fair, hate blacks, or believe everyone arrested is guilty.  Some crime victims say they can’t do it, and they’re let go, but of the remainder, almost all utter the right words to be good jurors.

Except for that woman, who swears she will be fair, wearing the Sandra Day O’Connor frilly collar without a black robe, whose eyes are burning with hate as she looks at your client. No cause to strike her, but if she could leap over the rail and strangle the defendant she would.

“The defense uses a peremptory challenge to strike juror number 4.” Poof, she’s gone.

Take that away and the defense is dead. There are far more jurors who side with the prosecution than will ever side with the defense, and without peremptories, they will be the jury. Forget the stereotypical racism that assumes all blacks are inherently sympathetic, but don’t take away my peremptories. It’s the only tool there is to rid the jury of those potential jurors who, to the extent I can tell, want to hang the defendant.

And Jeff Gamso has some thoughts of his own on this misbegotten idea.

*  Judge Bennett has informed me that this quote, which comes directly from Greenhouse’s New York Times op-ed, is not accurate.

4 Comments on this post.

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  • Nick Mikulicich Jr.
    6 August 2015 at 11:05 am - Reply

    Has Ms. Greenhouse ever tried a case in her life?

    • shg
      6 August 2015 at 11:40 am - Reply

      It wouldn’t appear so.

    • Jeff GAMSO
      6 August 2015 at 12:57 pm - Reply

      I don’t think she’s actually a lawyer.

  • Jury VooDoo and Racial Politics | Simple Justice
    17 August 2015 at 9:28 am - Reply

    […] the insidious effects of racial discrimination, my response was that they’ll have to pry peremtories out of my cold, dead fingers.  Adam Liptak has picked up on the issue, and offers a conflicted […]