Sure They Considered Race. What's Your Point? - UPDATED

Linda Greenhouse offers what she inaccurately calls a "thought experiment."*

What if we abolished peremptory challenges?

The subject is discrimination in jury selection.  The occasion is Foster v. Chatman, a case of pretty blatant racial discrimination where a Georgia prosecutor used peremptory challenges to kick blacks off a jury and help secure a death sentence.  

The Supremes thought, in their naiveté, that they'd abolished that sort of discrimination in Batson v. Kentucky and a string of cases applying and extending it.  They were wrong.  They were also, as it happens, misguided.

Oh, the goal, end discrimination in jury selection, is high-minded enough.  Nobody much, today, is going to be a public advocate for racial discrimination.  (Batson's been extended beyond race, but the same point applies.)  That's not really the issue, though.  Because once you start down the road you've got a problem.

When Batson simply applied to the prosecution in criminal cases, it was a sham.  (Only the hopelessly - like the berobed ones in Washington - really thought it would achieve what they claimed.)  Built into the ruling was an easy out for prosecutors:  Offer a race-neutral lie for why they were kicking this or that juror off a case.  (Juror frowned; juror smiled; juror wore green pants; juror wore no pants (!); juror once knew someone who once knew someone who heard about someone who got a traffic ticket - or didn't; the possibilities are endless.)

But when the Court went further and made clear that the goal of Batson was not to ensure that defendants got fair trials but that discrimination ended, the largely empty but plausible logic went out the window.  Batson, it turns out, isn't about the rights of the accused - not about the rights of the litigants at all.  It's about the rights of the juror who is excused based on a discriminatory peremptory. The lawyer who challenges the peremptory, acts not (the court says) in the interests of her client but in the interests of the excluded juror.

That's bullshit, of course.  As a lawyer, your only responsibility beyond upholding the basic integrity of the system by obeying the rules, is the interests of your client.  If that peremptory - racially motivated or otherwise and regardless of reason - is one you're happy the other side exercised, you're not going to complain.  It's only when your client would get screwed that you're gonna bitch.

And that's as it should be.  The theory is that when I get rid of the jurors I hate and the prosecutor gets rid of the jurors he hates, the remaining 12 are going to be pretty fair.  That theory may be nonsense in practice (jury selection is largely a matter of gut feeling rather than hard science), but it's the underlying idea.  And it works.  There are jurors who pretty obviously will be biased one way or the other but don't fall into any of the categories where exclusion for cause is allowed (brother of the defendant, witness in the case, plaintiff's lawyer in another case, whatever).  So we have peremptories to get rid of them.

Doing away with peremptories means assuming that any 12 random folks will be fair to both sides. In the real world, that ain't so.  And nobody who litigates really wants that.  We want jurors who will vote our way. Same as the other side does.  So we all get rid of the ones who surely won't.  That's the idea.  And hundreds of years of Anglo-American jurisprudence suggests that it works pretty well.

Does it allow for discrimination?  Yeah.  Can the discrimination be invidious and unfair and racist and lead to appalling decisions?  Yep.  (Think of those all-white juries in the south that routinely sentenced blacks to die for looking crooked at whites and routinely acquitted whites who murdered blacks.)  

Of course, if instead we figured out how to give teeth to what seemed like the idea of Batson when it first came out.  Prevent the government from using race to secure convictions and death sentences. Now that was an idea. 

UPDATE

Scott Greenfield also takes on Greenhouse and Batson over at Fault Lines.











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*If it were actually a thought experiment, the follow-up would be an examination of how that would (or would not) change things.  Her follow-up is to announce that there aren't enough votes on the Supreme Court to do it but that she longs for a day when there are.  Not an experiment at all.

Balance of Rights? Not in Our Constitution

When I started this blawg back in May, I wrote this as part of the initial post:

I believe that the system is out of kilter. It's designed to favor the criminally accused because of our Anglo-American tradition that it is better that guilty people go free than that one innocent person be convicted. To help ensure that, the Constitution enshrined not a level playing field for prosecution and defense but a steeply tilted one. It's supposed to be hard to convict, easy to acquit. Juries really are supposed to be damned sure that the guy is guilty before convicting, and they're supposed to have the right to acquit even those they believe the guy is guilty if the law stinks. Judges aren't supposed to fear political backlash from ruling in favor of those who are charged with committing even heinous crimes. The police and prosecutors are supposed to play by the rules, and if they don't, the penalty should be that the accused goes free. That's how we build integrity into the system.

It was a two-part point.

1. The theory of the criminal justice system is that it isn't supposed to be even with the prosecution and defense equally balanced. It's supposed to be tilted, steeply tilted, in favor of the defense.
2. The system, doesn't work, in the real world, the way the theory says it's supposed to.

I've returned to both these points repeatedly since then. But Scott Greenfield's thoughtful post this morning about people with disabilities serving on juries points me to a corollary. Scott is inspired by a post written by a self-described "high-functioning autistic" who was called for jury duty. She was concerned about her ability properly to serve. She explained it this way.

Would being a juror be something interesting? Sure, I personally think it would have been cool to serve on a jury. But not at the cost of misconstruing the wrong verdict. I, along with, I'm certsin, other people on the spectrum, have a myriad of problems, and in a trial setting it can become glaringly obvious. My own main issues include a difficulty in comparing nuances and social cues, as well as paying attention without my mind wandering off to other completely unrelated subjects (such as anime...), both of which impede on the function of a juror, which is to be an unbiased decider of the verdict. Or, me just wanting to not be sitting in the courtroom for whatever reason might compell me to leave (yes, I still have problems sitting still and will still rock in my chair, albeit rarely). I'd very likely have trouble discerning truth from fiction and would be a not-so-great or even disruptive juror.

Good for her to recognize that however much she'd have liked to serve, if her disability went unnoticed - or was thought insufficiently significant - the system would suffer because she wouldn't be able to do her job properly.

Scott heads off in a different direction, exploring why it is that although we can and should accommodate people with disabilities on juries, those with autistim should not serve.

In the balance of rights, the defendant's must prevail.

It's that balance I want to talk about. The rights of a criminal defendant don't arise out of thin air. They were specifically incorporated into the Constitution in 1791 with the adoption of the Fifth and Sixth Amendments. They rest on centuries of Anglo-American legal tradition, on the right to present a defense, and on fundamental principles of due process. Roll all that together and what you find is that in a criminal case one value must trump all others:

The defendant, the one who stands accused to face the power of the state, must not be impeded in his power to present his case by values external to the system of criminal justice.

Yes, the prosecution must have fair opportunity to prove the defendant guilty beyond a reasonable doubt. But that opportunity must be fairly exercised. More to the point, the rights of those other than the accused - except as they are directly protective of the rights of the accused, must give way.

Two examples, then, of where we've gone wrong:

Rape shield laws. These laws were adopted with the laudatory goals of protecting the victims of sexual violence and of encouraging those victims to come forward so that the perpetrators can be brought to justice. The implicit assumption of the laws and their real-world application in the courts is that rape victims don't lie. If they claim to have been raped, they have been. As a consequence, any dilution of the ability of the accused to defend himself or herself (yes, women get accused of rape, too) must give way to the right of the victim. But it's a faulty assumption and a misguided effort.

The assumption is faulty because, in fact, there are false accusations of rape. (See, e.g., here and here.) And rape shield laws often (not always, but a significant percentage of the time) make it too easy for those false accusations to grow into wrongful convictions. More important, the assumption is legally faulty, because nobody is legally guilty of a crime until after the verdict is returned.

Most importantly, the whole idea is based on the misapprehension that those harmed by crimes (for why I don't call them "crime victims," see here) are supposed to have rights within the criminal justice system. They aren't. The issue is whether the accused, the defendant should be found guilty or not guilty. There's no room in that question for asuring a degree of comfort to those who might or might not have been harmed.

Peremptory challenges. The idea behind peremptory challenges is that there are prospective jurors who cannot be fair but who slip through the system of challenges for cause. If the defense and prosecution each have the opportunity to get rid of the jurors the other side is most enthusiastic about, the result should be a jury as close to impartial as we can get.

The problem with the system of peremptory challenges is that it leads, ineluctably, to serious problems of racism that further infect a justice system already infected with racism. For decades the law had been that the state could not systematically exclude African-Americans from juries simply because they were African American. But the law had virtually no teeth. In 1986, in Batson v. Kentucky, the Supreme Court took the issue on directly and created a system, more fully worked out over several ensuing cases.

The short of it today is that nobody can exclude jurors simply because they fit into certain protected categories. Both the government and the defendant, the Court said, are acting as agents of the government when picking a jury and the government may not discriminate on the basis of race. Therefore, to protect the rights of the excluded jurors, neither the government nor the defendant may exclude jurors because of race (or other protected category).

The problem should be obvious. The person who stands accused by the government and must defend herself against the government, is not acting as the government when engaged in picking a jury. The prospective juror dismissed by the defense for reasons that would be improper in discharging an employee simply has no legal gripe against the defendant. That prospective juror's rights against discrimination must give way to the defendant's rights to due process and fair trial and to present a defense to people who will take it seriously.

The same, of course, is true of people with disabilities - whether autism or hearing loss or diabetes. Our laws say, and say rightly, that we must accomodate and not discriminate. But the defendant's right to fair trial must, always must, come first.

That's the system we set up. We don't balance the rights of the accused. We honor them.

Be a nice touch if either the originalists or the so-called liberals on the Supreme Court understood that.