Challenging Peremptories

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Justice Thurgood Marshall praised his colleagues when the U.S. Supreme Court moved to end racial discrimination in criminal trials by banning prosecutors from using per­emptory challenges to cover racially motivated strikes of black jurors.

“The court’s opinion cogently explains the pernicious nature of the racially discriminatory use of peremptory challenges and the repugnancy of such discrimination to the equal protection clause,” Marshall wrote, concurring in the land­mark decision in Batson v. Kentucky, 476 U.S. 79 (1986).

Still, Marshall voiced trepidation about judges’ ability to identify and remedy illegal prej­udice through a complex test the court set up. The test, which was designed to enforce Batson at the trial level, is supposed to enable the judge to determine whether a juror’s dismissal was racially mo­tivated.

Nearly 20 years later, Justice Stephen G. Breyer resurrected Marshall’s fears, concurring this spring in the case of a black inmate on death row in Texas who won a new trial because prosecutors used peremptory challenges to stack his jury with whites. Miller-El v. Dretke, 125 S. Ct. 2317 (June 13).

Seat-of-the-Pants Process

Both Breyer and Marshall would have fixed the problem by eliminating peremptory challenges entirely, which also would remove opportunities to use them as fronts for discriminatory motives.

But that proposal is unlikely to come to life anytime soon, leaving the courts to continue deciding challenges under Batson by the seat of their pants, as several jurists have described the process.

Equally unresolved is the problem of a remedy, as litigators on both sides of the bar scan the horizon for the next Batson case to catch the Supreme Court’s fancy. De­fense lawyers and prosecutors agree that the defendant in Miller-El will get a new trial. But the lawyer representing the defendant in a Batson case from California decided the same day isn’t so sure his client will get a complete do-over.

Oakland defense lawyer Stephen B. Bedrick expects prosecutors will ask only for a new Batson hearing, presumably reconstructed from the record of the first trial of Jay Shawn Johnson, a black man convicted of the second-­degree murder of a 19-month-old white child. The Su­preme Court tossed Johnson’s conviction on an 8-1 vote, holding that California’s standard for proving prejudice was too rigid. Johnson v. California, 125 S. Ct. 2410.

Bedrick fears that on remand the temptation to fill gaps in a sparse record with favorable material will prove too much for prosecutors to resist.

“This is an invitation to imagination and prevarication,” Bedrick says. That’s precisely one of the problems feared by Breyer–and Marshall before him–in calling for the flat-out elimination of peremptories, which would root out the problem at its source.

“The right to a jury free of discriminatory taint is consti­tutionally protected–the right to use peremptory challenges is not,” Breyer wrote.

Nor are prosecutors in criminal cases and prospective black jurors the only ones affected. Batson principles have spread throughout the jury system to cover bias in the selection process based on sex, as well as discrimination practiced by criminal defendants, by private par­ties in civil cases, and by prosecutors in situations where a defendant and excluded juror are of different races.

‘Deeply Ingrained’

For all of Batson’s weaknesses, peremptory challenges so far have proved unmovable, despite the lack of constitutional support that Breyer noted.

“It’s just too deeply ingrained,” says Charles L. Hobson, who is a lawyer with the Criminal Justice Le­gal Foun­da­tion, a group based in Sac­ra­men­to, Calif., that backs prosecutors.

The foundation filed an amicus brief supporting the state in John­son.

“It’s hardwired into our justice system,” Hobson says. “Even if you were to adopt Justice Breyer’s opinion, you would see an expanded number of for-cause challenges. … I can understand his frustration, but I think the cost would be considerably higher than the benefit.”

No new law arose from the case of Thomas Joe Miller-El, a black man sentenced to die for the brutal 1985 murder of a white Dallas hotel clerk in a robbery that left another clerk paralyzed.

Rather, the decision ended a tug-of-war between the Supreme Court and the New Orleans-based 5th U.S. Circuit Court of Appeals.

After the 5th Circuit refused to grant relief practically ordered by the justices, the Supreme Court in a rare move took the case once more and gave Miller-El another chance. This time, the justices by a 6-3 vote decided the matter on the merits themselves and ordered a new trial for Miller-El, who had compiled massive evidence of unconstitutional discrimination at his first one.

Three-Pronged Test

Despite the lack of law coming from Miller-El, Justice David H. Sou­ter, writing for the majority, did offer a how-to guide for judges to use when deciding discrimination complaints lodged under Batson.

In Batson, the court established a three-part test in which the defendant first must make a prima facie showing of racial motivation behind the prosecutor’s use of a peremp­tory strike. The prosecutor then offers a racially neutral explanation for the challenge. It’s up to the judge to decide whether to believe the prosecutor or to dismiss the reason as a pretext for discrimination.

First, Souter cleared up some confusion by revitalizing an earlier test for proving discrimination through broad patterns and practices followed by the prosecutor’s office. Swain v. Alabama, 380 U.S. 202 (1965). After the court adopted the individualized test in Batson, questions arose about the continued relevance of Swain’s use of historical evidence.

“Although the move from Swain to Batson left a defendant free to challenge the prosecution without having to cast Swain’s wide net, the net was not entirely consigned to history,” Souter wrote.

A judge confined to Batson’s case-by-case approach may have no way to evaluate a prosecutor’s answer without looking to cases beyond the one at trial, Souter explained. Thus was Miller-El able to introduce a 1960s manual– though out of use by the time he was tried in 1986–that ordered prosecutors in the Dallas County Dis­trict Attorney’s Office to keep blacks and other minorities off juries “no matter how rich or well-educated.”

But the key to the decision came when Souter compared blacks kept off Miller-El’s jury with whites who were seated, and noted the similarity in their responses when asked their feelings about the death pen­alty.

“If a prosecutor’s proffered reason for striking a black panelist ap- plies just as well to an otherwise similar nonblack who is permitted to serve,” Souter wrote, “that is evi­­dence tending to prove purposeful discrimination.”

Analyzing Analysis

That type of comparative analysis is something that prosecutors in California likely will attempt to avoid on remand. The California Supreme Court bans comparative analysis for all practical purposes, while the 9th U.S. Circuit Court of Appeals at San Francisco allows it, making the issue a candidate for U.S. Supreme Court consideration if the next Batson remedy case comes from the Gold­en State.

Indeed, in Miller-El, California filed an amicus brief “in support of neither party,” urging the Supreme Court against endorsing comparative analysis at the appellate level. “The cold record may not even reveal the race of the jurors challenged or retained, let alone body language or demeanor,” the state argued in its brief. “A reviewing court is simply unable to evaluate important extra-record evidence necessary to determine whether the jurors are truly comparable.”

Souter’s comparative analysis in Miller-El didn’t help him merely to conclude that prosecutors discriminated against excused black jurors. It also revealed accounts by prosecutors that changed significantly as the case rambled through the federal courts for 17 years. That, defense advocates say, is the real trap California wants to avoid.

“Comparative analysis adds a layer of complexity to the Batson process,” acknowledges Elisabeth Semel, death penalty clinic director for the Boalt Hall School of Law at the University of California-Berkeley. Semel filed an amicus brief supporting Miller-El on behalf of a dozen former judges and prosecutors.

“It also unmasks the pretext, which is what prosecutors don’t want,” she continues. “They want to be able to stand there and say, ‘That’s our answer, and that ought to be good enough for you.’ ”

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