Just my luck. I leave town for two days, away from the Internet for once in my life, and the blogosphere decides to spend the whole time talking about peremptory challenges to potential jurors.
Peremptory strikes, the cons and pros (and pros and pros)
It started with an article by Nathan Koppel in the Wall Street Journal, discussing proposed reforms to the peremptory challenge system, including eliminating them altogether. The reformers point to a problem that's real: knowing they aren't allowed to strike jurors because of race, gender, or ethnicity, lawyers contort their explanations in ways that seem to be either ridiculous excuses or transparently racial code. One of the casualties is the credibility of the whole justice system.
Bloggers on trial law took note. The WSJ Law Blog simply reviewed the article, and Juries used a long quote. But Walter Olson at Overlawyered said he's long supported getting rid of peremptories, and was tempted too by one reform idea in the WSJ article, limiting them to three per side, no matter what kind of case or where.
Defenders of the peremptory strike ran to their keyboards and wrote one terrific post after another. It may have been the best two days for jury blogging in history. There were two posts from Mark Bennett (here and here), Scott Greenfield of course, two different authors from the blog Popehat (Patrick and Ken), and in his great new blog JuryVox, consultant Dennis Elias weighed in.
I favor peremptory strikes. I'm a practicing lawyer, not a theorist, and I know that in the courtroom, the peremptory system adds to the fairness and efficiency of trials, even when so many lawyers use it poorly. And I can't imagine a thing I could say in favor of peremptory strikes that wasn't said more cogently in one of those great posts last week.
The problem with Batson
One thing does seem worth adding, though — a thought that isn't really part of the discussion, but instead about the reason we're having it. It isn't just clumsy, racially motivated lawyers who have driven us to have to defend peremptory strikes. It's Batson itself, the case that prohibited racially motivated strikes in the first place.
Is Batson wrong? Not in its intent, or its immediate result. In Batson's trial — and many others, then and sometimes now — the jury selection was simply racist. The Batson court was right to end this shame. But the court's reasoning left us with a false choice that is itself tainting jury selection today.
The Batson court divided the universe of peremptory strikes into two categories: those with a "racially discriminatory purpose," and those that are "racially neutral." If we can infer from your strikes that you're "discriminatory," the only way to save them is to convince the judge you're "neutral." The literature, case law, and blog posts on Batson for the most part accept this distinction without question — like last week's WSJ article, which talked about "the tricky question of when peremptory challenges cross the line into discrimination."
But the distinction is wrong. You know it's wrong. Consider:
- You're defending a black man in a knife assault case. A black prospective juror says two of her family members have been assaulted with knives in separate incidents. She and her extended family all live in a high-crime neighborhood that is almost entirely African-American, and she has started an anti-crime program on her block.
- You're defending that same case and a white prospective juror says she avoids driving through the inner-city neighborhood where the assault happened, and has never known anyone who was arrested for a serious crime. She lives in an affluent white neighborhood.
- You're defense counsel in a medical malpractice case involving medical research studies, and an African-American prospective juror tells you she is highly suspicious of doctors and tests. You're aware of the studies (here's one) showing that many African-Americans feel deep distrust of medicine and medical research.
In each case, is your peremptory strike meant to be "racially discriminatory," or is it "racially neutral"? It certainly is not meant to discriminate, and I'd argue strongly that each of those strikes is appropriate. But neither is it "neutral," in any sense except the way that courts applying Batson have come to redefine that word as they try to shoehorn strikes into one label or the other. It's something we need another word for, like "racially complicated."
Americans spent most of the election year 2008 teaching ourselves every day that race matters — in ways we expect and in ways we don't, in the way we influence each other in groups and the way we think privately. It matters because race, and the economic and social status that often come with race, are among the primary forces shaping each person's experiences. That lesson has made our conversations about politics a lot more interesting — but when we talk about other issues, like jury selection, it's as though we paid no attention at all. "Discriminatory or neutral?" is a question with no right answer, and when we make lawyers answer it anyway, we shouldn't be surprised when the responses sound silly.
Related posts here:
I thought the 2008 presidential election was also about whether the “rule of law” had any place in American society. It’s clear that to the major news media and the blogers, that is does not. It is a quaint, antique of an idea to be rolled out on the Fourth of July and then quickly forgotten.
Ask yourself, what is more important, Baston peremptory strikes or the Bush Doctrine of Preemptive war? If our top lawyers do not care about the rule of law, then why should anybody else? Once again, the media fails the people and fails them big time.
Doing criminal defense, I often wished to do away with peremptories altogether. There would be three potential jurors on the panel that I really wanted on the jury, who I thought would really take “beyond a reasonable doubt” seriously, and the State would strike them for, I presume, the same reason I wanted them there.
I would have gladly allowed a couple pro-prosecution jurors to stay, in order to keep the ones I wanted. I think it would lead to a much broader cross-section of the community serving on juries, too.