Does Batson mean anything?
Foster v. Chatman presented the Supreme Court with an opportunity to clarify its ruling in Batson v. Kentucky as to what was required to show racial discrimination in the prosecution's exercise of peremptory challenges. As I explained here, Foster was a black man convicted by a Georgia jury of killing a white woman, and his lawyers subsequently obtained the notes used by the prosecutors for voir dire. The notes might as well have been titled, "How to Keep Nigras off the Jury." The black jurors' names were marked in green highlighter, they were referred to as "B#1," "B#2," and so on, and the investigator had written a report stating that "if we had to pick a black juror" -- God forbid - he recommended one in particular, "with a big doubt still remaining." All of the blacks on the jury wound up being struck by the prosecution.
The argument was last Monday. The Friday afternoon before, the Court sent a letter to the lawyers:
Counsel should expect questions at oral argument on whether certiorari in this case should be directed to the Supreme Court of Georgia or the Superior Court of Butts County, Georgia, and what significance, if any, that determination may have on the Court's resolution of the case.
If you're wondering what that even means, so am I, and I didn't achieve enlightenment from reading the first fourteen pages of the oral argument, where that was the only issue discussed. In fact, half the hour's time was consumed by debate about which court the justices would send the case back to - trial or state supreme court being the options - and what issue those courts might decide.
I'm sorry, but that's stupid.
The Court seems quite willing to express its opinion on all manner of issues, from gay marriage to Obamacare to religious freedom. At this particular time, to use procedural technicalities to ignore the issue of race and the criminal justice system seems horribly myopic.
See, here's the thing. Anybody who has handled a criminal trial knows that prosecutors don't want blacks on a jury. For the same reason that I don't want men on a rape jury, or older people on drug cases. For the same reason I do want black people on the jury: my client is usually black, so they'll have a bond with him, and they're more mistrustful of the prosecution. (One of the reasons for that being they know prosecutors are trying to get them off the jury.) Plus, they're less likely to be overly disturbed by crime. Shooting isn't such a big deal if you hear gunshots just about every night.
So is it just as fair for the prosecutor to kick off blacks as it is for me to kick off men or old people? Of course not. First, I'm not going to be able to kick off all the men or all the old people. I may diminish their number, but they'll still have a voice. It's not difficult for a prosecutor to kick all the blacks off a jury. They won't have a voice, which leads to Point Two: a defendant has a constitutional right to a jury of his peers, and in 2015 it's pretty difficult to argue that a black criminal defendant's peers are twelve white people.
The problem, of course, is figuring out when the prosecutor is kicking off a black juror for racial reasons. That's what Batson is designed to figure out. The first step is the prosecutor seeks to remove a member of the defendant's racial group. If the defense objects to that, the prosecutor has to come up with a race-neutral explanation for the strike. In the third step, the defendant has to show that the reason is pretextual.
That's a nice test, and it's the kind of test one might expect from the Supreme Court, from justices who, for the most part, have never participated in or presided over a criminal trial. Anyone who's had that experience knows that any prosecutor who hasn't recently experienced a major head injury will be able to come up with something other than, "I don't want blacks on the jury."
Well, that's pretty much what the prosecutors in Foster did. Oh, they came up with plenty of race-neutral explanations, many having apparently dawned on them well after the trial. But the entirety of the record, coupled with the prosecutor's closing argument that a death sentence would send a message to "the people in the projects," leads inexorably to the conclusion that if this isn't a Batson violation, Batson is meaningless.
And therein lies the difficulty. That's one of the problems of winning a case because you've got great facts: there'll be a tendency to attribute the victory to those facts. A prosecutor will have any easier time making the case for a race-neutral reason because it won't be anything close to Foster.
But I don't think it will work that way. Just reminding courts - and prosecutors -that there is such a thing as a successful Batson challenge will help. Frankly, I'd settle for that.
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Don't get the idea that a Batson challenge is hopeless. I ran across this on the Internet, and it presents the basic law on Batson, and some good ideas on making a challenge. One of them, for example, is to take good notes on the demographic makeup of the jury. This went a long way toward allowing Foster's lawyers to show the "race-neutral" reasons were rubbish. When the prosecutor tells the judge that he wants to dismiss a black juror because she's got a 19-year-old son, and the defendant is 20, it's nice to be able to point to the fact that six white jurors have sons between 17 and 22.
One other thing: challenge the first peremptory of a black juror. A lot of people believe that you have to show a pattern of strikes of blacks. This case says you don't. You'll lose that challenge, but you reduce the chances of the prosecutor trying to remove any other blacks by 90%.