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Monthly Archives: November 2015


The Supreme Court takes on jury selection

There is much to be said for the adage that hard cases make bad law, but there may be less to be said for the claim that easy cases make good law, at least at the Supreme Court level. Exhibit A: Monday’s oral argument before the Court concerning race-based uses of peremptory challenges in voir dire, or jury selection. The case offers as clear-cut an example of racial discrimination in jury selection as one is likely to encounter, yet it is precisely that characteristic that threatens to diminish the case’s utility with respect to combating such discrimination.

First, a brief primer on peremptory challenges: Unlike challenges for cause, which require counsel to articulate a reason why a challenged juror cannot decide the case free of bias, peremptory challenges allow potential jurors to be struck for any reason or no reason. This device enables the removal of potential jurors who are believed to harbor prejudices against one’s side, even though they don’t say anything directly revealing their prejudices. The exercise of peremptory challenges reflects an attorney’s hunches, based on such considerations as body language and vocal tone. But it can also reflect stereotyping about particular groups of people and their beliefs. More specifically, peremptory challenges have a long and ignominious record of being used to single out African-American jurors for removal, based on the stereotype that they are unwilling to convict African-American defendants.

The Supreme Court, in Batson v. Kentucky (1986), attempted to curtail the use of race as a primary factor in striking jurors, though it did not rule the use of peremptory challenges unconstitutional in and of itself. Once a defendant has claimed that the prosecution’s use of peremptory strikes was driven by racial considerations, the prosecution must then demonstrate that the strikes had a race-neutral basis, such as age, income level, or occupation. The judge then determines whether these proffered justifications are legitimate or mere pretexts for discrimination. This last stage is where Batson has failed to live up to its promise, as judges typically accept even the flimsiest justifications as valid. One can understand why judges might hesitate to single out prosecutors, with whom they work on a day-to-day basis, as being both bigots and liars about said bigotry. But the result is the frustration of Batson‘s purpose; if any dubious post-facto justification can pass muster, then blatant discrimination will go unpunished.

The prosecution behavior in the Georgia case just heard by the Court seems, based on its cartoonishness, as it were designed to test the Court’s willingness to label any behavior a Batson violation:

In notes that did not surface until decades after the trial, the result of a public records request, prosecutors had marked the names of black prospective jurors with a B and highlighted those names in green.

They circled the word “black” where potential jurors had noted their race on questionnaires. They ranked the black prospective jurors in case “it comes down to having to pick one of the black jurors,” as the prosecution’s investigator put it in a draft affidavit at the time.

Had the defendant’s attorney not attained access to the prosecution’s notes by invoking the state’s open records law, none of this behavior would have come to light. What was hidden in plain sight, in contrast, was the prosecutor’s request to the all-white jury to sentence Timothy Foster, an African-American accused of murder, to death to “deter other people out there in the projects.” But without the notes that had previously been unavailable to Foster’s counsel, this case would never have found its way to the Supreme Court, the prosecutor’s racially charged appeal notwithstanding.

Based on the tenor of oral argument, it’s difficult to imagine that the Court will rule against Foster. The unanswered question, however, is what victory might look like. Because most Batson claims aren’t backed by prosecutors’ notes providing explicit evidence of discrimination, any ruling that relies on the availability of such notes to make the case for a Batson violation will leave the status quo untouched, thereby allowing barely camouflaged discrimination to continue. At the same time, there has been no signal that the justices are inclined to rethink the constitutionality of peremptory challenges themselves, as Justice Thurgood Marshall argued in his concurring opinion in Batson.

If peremptory challenges are going to continue to be part of jury selection, then reform must address the willingness of trial judges to accept the purportedly race-neutral rationales provided by prosecutors. If trial judges find it too awkward to enforce Batson assertively because of their regular interactions with prosecutors, then one solution might be to impose meaningful oversight of trial judges’ Batson rulings. Under current precedent, Batson rulings receive great deference on appeal because the trial judge is able to witness the selection process firsthand, and thus is best-positioned to determine the plausibility of the prosecutor’s proffered race-neutral justifications. But videotaping voir dire could equip appellate judges to review Batson decisions more meaningfully. And appellate judges wouldn’t share trial judges’ concerns about alienating prosecutors. But it’s more likely that the Roberts Court will decide the easy case while declining to strengthen Batson to prevent discriminatory behavior that can’t be uncovered without what Foster’s attorney called an “arsenal of smoking guns.”