Sunday, November 1, 2015

The End Of The Peremptory Strike?

Oral arguments are tomorrow in Foster v. Chatman, a case involving legal issues of race and the use of peremptory challenges (or "strikes"). When the Supreme Court of the United States (SCOTUS) originally agreed to take the case I was excited. As I have read the briefing on the case, I have now come to the conclusion Foster encapsulates most of racial shortcomings of the American criminal justice system.

Let us start with the race based jury selection basics. In 1986 SCOTUS decided a case, Batson v. Kentucky standing for the proposition that the Federal Constitution (14th Amendment Equal Protection Clause) forbids states from using strikes based on race in criminal jury selection. Batson started a process known a "Batson challenge" when a defendant contends a juror was struck because of race. It is a 3 step process which ends, essentially, with the State having to provide the trial judge a "race neutral" reason for the strike.

This process has led to all sorts of problems in process. They seem to all be present in Foster. Again, knowing relevant facts about the specific case give proper context: The victim was Queen Madge White, a 79-year-old widow and retired elementary school teacher. There is no real dispute she was brutally killed by Foster. Queen Madge White, the victim, was white, Timothy Tyrone Foster, who took her life, African American.

At his Georgia capital murder trial in 1986 - yes this case is 30 years old -  the State used 4 of it's 9 peremptory strikes to eliminate all the African Americans on the jury panel. The jury that was ultimately selected was all white and sentenced Foster to death.

A quarter century later the prosecution notes, unavailable at trial to the defense, revealed African Americans were designated B1-B3, and highlighted in green, There were also notes prioritizing the African Americans on the jury panel in the event the State was forced into having to accept one on the jury. There is more, but you all get the drift.

When called upon at the original trial to give race neutral reasons for the strikes, the State prosecutors gave sufficient reasons for the trial judge to deny the defense Batson challenge. The information above related to the highlighting, designation of African American jury panel members and the priority list only came after a public records request.

In the briefing at SCOTUS, the State has used essentially the same arguments that the Supreme Court of Georgia found persuasive in denying Foster a new trial: The Batson decision itself was only months old when Foster's original trial began, and the State was preparing for what it knew would be a challenge to exclusion of any African Americans from the jury. Their designation of African American jurors was a precautionary measure to ensure they had them identified in light of the challenges they knew would be made by the defense.

Dahlia Lithwick's Slate podcast Amicus has an excellent discussion about the case, featuring Stephen Bright who will argue the case for Foster and Glenn Ivey who, along with a group of former prosecutors, including the author of the acclaimed novel "Presumed Innocent," Scott Turow, filed an amicus brief supporting Foster. The following sentence contained in their Amicus Brief was emphasized in the podcast:
Failing to find purposeful discrimination under these extreme circumstances would strip Batson of its meaning. 
I don't know. After listening, particularly to Ivey, a system like ours will inherently encourage discrimination. In fact, but for the newness of Batson at the time of Foster's original jury selection, it could be jadedly and cynically argued the biggest mistake the Georgia prosecutors made was leaving a paper trial.

After listening to the podcast, and reading the briefing in Foster, I went back and read Justice Thurgood Marshall's concurrence in Batson. It turns out his skepticism of the Batson challenge process (Marshall was the only member of SCOTUS at that time to be a former trial lawyer) was prescient:
The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.
Twenty years later, in 2005, still sitting Justice Stephen Breyer echoed Justice Marshall's skepticism in Miller El v. Dretke:
In [Batson], the Court adopted a burden-shifting rule designed to ferret out the unconstitutional use of race in jury selection. In his separate opinion, Justice Thurgood Marshall predicted that the Court’s rule would not achieve its goal. The only way to 'end the racial discrimination that peremptories inject into the jury-selection process,' he concluded, was to 'eliminat[e] peremptory challenges entirely.' Today’s case reinforces Justice Marshall’s concerns. (citations omitted).
Lithwick's Amicus podcast listed the many ways prosecutors and defense lawyers haver resisted ending the use of peremptory strikes. I have long counted myself among those so resisting. The podcast also pointed out how trial level judges who deal with prosecutors every day in their courts are reluctant to make the findings required by Batson that not only did those prosecutors engage in purposeful racial discrimination, but then tried to cover it up with a fabricated race neutral reason.

I have made many Batson challenges. A few have been granted, many more denied. It was plain in each the judge was anguished about having to make the finding.

For those who do not really care how the death penalty decision was reached, consider this: It is not just about Timothy Tyrone Foster. Instead, it is about every African American, Hispanic, Jewish and other civic minded ethnic jury panel member who shows up for for jury service and then is denied that right for no other reason than their ethnicity. That is why the best remedy for a Batson violation is not mistrial - it is to replace the last juror selected with the minority panel member improperly struck.

I understand that eliminating peremptory strikes would bring about their own practice and process problems. instead of strikes the battleground would move to disenfranchisement of minority jurors and disqualification of jury eligibility based on criminal record. I have, however, come around to thinking Justices Marshall and Breyer may be right.

I will be listening closely tomorrow.

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