The New York Times‘s Adam Liptak writes (falsely) that prosecutors can get away with making racially biased challenges to potential jurors, by advancing implausible and unpersuasive reasons for the challenges:
In Batson v. Kentucky in 1986, the United States Supreme Court tried to put an end to the practice of excluding jurors based on race. The effort has failed, and it is time to consider doing away with peremptory challenges.
In Batson, the court recognized an exception to the general rule that peremptory challenges are completely discretionary. Race, the court said, cannot be the reason.
But all a prosecutor needs to do if challenged by the defense about the rationale for striking a prospective juror is to offer a neutral explanation. That reason, the Supreme Court has said, does not have to be “persuasive, or even plausible.” Here is one reason the court found sufficient: a prosecutor did not care for a potential juror’s long hair, mustache and beard.
That is a very different standard from the one courts use in evaluating requests to remove jurors for cause. If lawyers can persuade a judge that a juror will not be able to hear and weigh the evidence in a case fairly and impartially, that juror ought to be removed.
Liptak’s explanation is technically true, as far as it goes . . . but is so incomplete that the overall effect is a rank distortion — a description of the law that is highly misleading in its implications. Liptak insinuates that the inquiry ends the second the prosecutor offers a race-neutral reason, even if it is not “persuasive, or even plausible.” So a prosecutor can dismiss a juror based on race, offer an unpersuasive and implausible reason, and the inquiry ends there? Wow, that really does sound bad!
Except that, of course, that’s not the law. Here is how it actually works, as described in the Supreme Court case quoted by Liptak, Purkett v. Elem. As you read this quote, note how badly Liptak has distorted the relevant legal requirements. Liptak strongly implies that a prosecutor can defeat a claim that his peremptories were racially biased by offering justifications that are not “persuasive, or even plausible.” Nonsense; the Supreme Court quote you’re about to read says precisely the opposite: that “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.”
Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race neutral explanation (step 2). If a race neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. The second step of this process does not demand an explanation that is persuasive, or even plausible. [Patterico sez: this is apparently where Liptak stopped reading. Don’t make that mistake! Read on.] “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”
The Court of Appeals erred by combining Batson‘s second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, i.e., a “plausible” basis for believing that “the person’s ability to perform his or her duties as a juror” will be affected. It is not until the third step that the persuasiveness of the justification becomes relevant–the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.
(Italics in original; bold emphasis is mine.)
My only question is whether Liptak knows how badly he misrepresented the Supreme Court’s position in this area.
The point of Liptak’s misleading screed is to rail against peremptory challenges, which he argues should be eliminated. This is an ivory tower argument that would not work in reality, as I explain in the extended entry.