Convictions : Batson

Snyder, Peremptory Challenges, and Race

Nancy Gertner — Fri, 21 Mar 2008 22:18:00 GMT

[Nancy Gertner] Kenji Yoshino asks whether it is better to eliminate peremptory challenges altogether rather than risk their use in a discriminatory fashion. I understand the problem; Snyder, the Supreme Court's recent peremptory challenge case, dramatized it. Still, because of what I know of the real world of criminal trials, I would not throw out peremptory challenges.

Peremptory challenges are more likely to be based on stereotypes of all kinds where the voir dire process has been inadequate. The more information you have about someone the less likely you are going to stereotype him or her. The problem is that voir dire in federal court is usually limited. (State courts are different; some, like Connecticut, have a long tradition of elaborate voir dire. Some federal courts mirror the more elaborate voir dire of the states in which they are located, but that is the exception not the rule.) Typically, a juror's self-assessment of partiality or impartiality is the end of the analysis. So, until courts recognize the significance of a searching voir dire, lawyers will never be able to ask the kind of questions that really elicit bias on the part of the juror. (When I was a practicing lawyer, the only mandated question about race in the courts of Massachusetts was, "are you sensible of any bias or prejudice you might have " a question often asked to the jurors as a group. It was an approach hardly likely to elicit a meaningful response from the jurors. In fact, it reminded me of an AA meeting; the jurors were expected to stand up and say, "My name is John Smith and I am a racist." Happily, the Massachusetts has changed its jury selection procedures.)

Of course, one might say if we had a more searching voir dire, why would we ever need peremptory challenges. The only answer is that peremptory challenges represent the system's safety valve—because the very process of jury selection may alienate a juror, because there may not be enough time to ask all of the relevant questions of a juror, because in high profile cases one may suspect a juror to have been influenced by 24/7 news coverage but the juror denies it, etc.

I recognize the contradiction—if after lots of questioning you don't have a rational basis for a cause objection, you are more likely to challenge a juror based on hunches, gut feelings, and of course, bias. Still, the very possibility of a Batson challenge has an impact on the exercise of peremptory challenges. In addition, perhaps after Snyder the courts will do a better job of monitoring. For every Snyder there were a thousand cases where courts have been unwilling to second guess the prosecutor. It was enough if the prosecutor offered any old reason so long as it was ostensibly race neutral; it didn't have to make sense. (The Supreme Court literally said that in a 1995 case, Purkett v. Elem.) This included "I got the feeling that the juror didn't want to be here," or another where the juror seemed "squishy on the death penalty," or made a funny face, or looked bored.

Whether Snyder augurs a change is an open question. It was, after all, a death penalty case. At times it appears that there is death penalty jurisprudence and then all other criminal prosecutions. In addition, as we have seen to a degree in sentencing, there are Supreme Court pronouncements which are effectively ignored by the lower federal courts.

Caught out?

Diane Marie Amann — Wed, 19 Mar 2008 23:51:00 GMT

Adam, have you never heard of a catchy lede? Extracting from eye the thumb not put there: I think we agree -- we have a coming together -- that the majority opinion is an unusual appellate application of the Batson doctrine. Diane

What Snyder did not say about race

Diane Marie Amann — Wed, 19 Mar 2008 20:42:00 GMT

by Diane Marie Amann

Today the issue of race divided conservatives in America.

In Snyder v. Louisiana, the U.S. Supreme Court reversed defendant's capital conviction for murder of his estranged wife on the ground that the exclusion of a single potential juror -- an African-American student teacher -- violated the Equal Protection Clause of the 14th Amendment to the Constitution. The 7-2 judgment is remarkable. That's not only because the majority included 3 persons typically identified with the Court's conservative wing: Justice Samuel A. Alito, Jr., the author; Chief Justice John G. Roberts, Jr.; and Justice Anthony M. Kennedy. Also remarkable is the brevity of the opinion. Attorneys who have litigated Batson motions, as I have, no doubt will remark on the quick certainty with which the Court concluded that there had been a sufficient showing that the state acted "in substantial part by discriminatory intent" (pp. 12-13) simply by comparing the treatment of the student teacher with that of 2 white veniremen.

The Court left unsaid what well may be a prime source of that quick certainty: Snyder had come to be known as the O.J. revenge case, a case in which the prosecution struck not 1 but all potential jurors of African-American heritage. It was a case in which the prosecution alluded in his penalty-phase closing to the then-recent acquittal of O.J. Simpson on charges of murdering his ex-wife, and suggested to jurors that they should not let the defendant before them "get away with" it. All 3 of the members of Louisiana's highest court who dissented from affirmance of the conviction cited this overall context -- as 1 put it, "this injection of racial issues, and the fact that the prejudicial arguments were made to an all-white jury" (942 So.2d 484, 501) -- as evidence that exclusions of potential jurors were racially motivated.

The U.S. Supreme Court is to be commended for what it did in Snyder. But on this day when America ponders Sen. Barack Obama's profound unmasking of the issue of race, it seems proper to question the decision of the Court to leave so much unsaid.

(prior Convictions posts on Obama's speech here and here)