As I noted last night, the lone Blago holdout juror listens to liberal talk radio. In a politically charged case like Blago’s, she is objectively a disastrous juror. So why did the Government keep her?
In a comment to my post about the lone holdout juror in the Blago case, Beldar has a theory:
It’s not unreasonable to wonder, too, whether hypersensitivity to Batson concerns might have played a role as the prosecutors decided how best to exercise their peremptory strikes. Fair or not, the risk of a case being substantially complicated and a verdict put at risk — by later claims of racism during jury selection — is something prosecutors (and to some extent, all courtroom lawyers, civil and criminal) have to weigh.
This is an important point.
Any defendant (even a white defendant) can bring a motion accusing the prosecutor of racism in jury selection. What Beldar is saying is that, because of these motions, a prosecutor might be tempted to bend over backwards to accept a black juror that he would have kicked in the normal course of business.
Let me tell you a story to illustrate the concept.
Earnest Earl is appointed manager of the Scranton branch of a large paper company. His assignment is to clear out the deadwood, because the previous manager had been running the branch into the ground. He is told he must fire 30 of his 100 employees. Earl sets up a personal interview with each and every employee, and vows to come to a fair decision on layoffs, based on merit, after reviewing the employees’ records and speaking with them personally.
As employees start coming in for their interviews, Earl makes a few easy decisions right off the bat. He fires Johnson and Peterson for embezzling after examining their books and realizing they have been skimming money for years. He fires Smith after seeing Smith with his feet on his desk, all day every day, for a week. He fires Jackson because his sales records have consistently been the lowest in the branch for several years running.
Earnest Earl considers these to be easy decisions. But then he gets an anonymous note, saying: “We notice that you’re firing a bunch of black people. Better watch it, or you may end up getting sued.” You see, Johnson, Peterson, Smith, and Jackson all turn out to have been black. They were hired by the previous manager, who was a black racist who hired any black who applied regardless of their qualifications.
Unlike the previous manager, Earnest Earl doesn’t have a racist bone in his body. He acknowledges the history of oppression of blacks in America. At the same time, he has a job to do, and he takes pride in his work. He had promised himself before he came in that he would make his decisions in a completely colorblind manner. Only merit would count.
And yet, today, he has an appointment with Williams. And Williams is black. And Earnest Earl finds himself hoping that he can keep Williams.
He reviews Williams’s file. Williams is not a great employee. Relatively low sales. Not particularly reliable. Objectively, he would probably be one of the 30 worst employees at the branch. If he were white, Earnest Earl would fire Williams without hesitation.
But Earnest Earl thinks of the note. He wants to stick to merit — but he finds himself straining to find good aspects about Williams’s performance. It’s not like Williams embezzled money, or wasted an entire week of work with his feet on his desk, or has the very worst sales record in the office. Maybe, he decides, maybe we should keep Williams after all.
Earl ends up keeping Williams. He tells himself it’s not because of the threat of a lawsuit.
And even if it was, that would be bad for the branch too, right?
Beldar is suggesting that maybe, just maybe, the government lawyers in the Blago case rationalized keeping an objectively bad juror (one who listens to liberal talk radio, in a politically charged case involving a Democrat crony of Obama’s!) because of the fear of being judged racist for kicking her.
We weren’t there, so we don’t know. But it’s not impossible. Not at all.