Does Adam Liptak Really Get Paid to Write About Legal Matters?? (Plus a Defense of Peremptory Challenges)
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.
In Batson itself, Justice Thurgood Marshall wrote that the decision “will not end the racial discrimination that peremptories inject into the jury selection process.” That goal, he said, “can be accomplished only by eliminating peremptory challenges entirely.”
(As an aside, I note that Liptak is wrong to say that Justice Marshall wrote that “[i]n Batson itself.” Actually, Justice Marshall wrote that in a concurring opinion, which does not have precedential value, as contrasted with statements of majority opinions. If Liptak tried pulling that in a legal brief, the judge would slam him.) Moving on with Liptak’s argument:
Two years ago, in the Miller-El case, Justice Stephen G. Breyer appeared to endorse that view, saying that “peremptory challenges seem increasingly anomalous in our judicial system.” Justice Breyer noted that England has eliminated peremptory challenges but “continues to administer fair trials based largely on random jury selection.”
Peremptory strikes are an odd and arbitrary historical artifact. Unlike equal protection, they are not guaranteed by the Constitution, and in capital cases — where race matters most — they would not be missed.
This argument against peremptory challenges is not new to the pages of the New York Times. The case against peremptory challenges was articulated in an op-ed by Morris B. Hoffman in the New York Times last year. I have to wonder whether Morris B. Hoffman, Stephen Breyer, or Adam Liptak have ever tried a criminal case to a jury, where twelve citizens must be unanimously convinced of the defendant’s guilt beyond a reasonable doubt.
(In my limited research, I believe the answer is “no.” Liptak has been a commercial litigator, among other things. Morris Hoffman appears to have been a commercial litigator and civil trial judge. Breyer was an assistant special prosecutor on the Watergate Special Prosecution Force, but I can’t find any evidence showing that he tried any criminal jury trials while holding that position.)
The problem, which these commentators don’t appear to grasp, is that jurors often tell you in a hundred subtle ways that they can’t be fair to your side — but don’t always do so in a way that amounts to legal cause (or at least that the judge you’re in front of believes is legal cause). Indeed, it is common for jurors that you know could never be fair to your side to claim that they could be.
Let me give you a not-so-hypothetical situation. You are a prosecutor picking a jury, and on your panel are the following two jurors:
Juror No. 1 is a male who claims that he has been harassed by the police numerous times, as have many of his friends. He has so many close friends and relatives who have been arrested and/or prosecuted for crimes that he can’t count them all — indeed, he doesn’t even know where to start. These friends and relatives have been convicted of robbery, grand theft auto, etc. You name the crime, and this guy has a friend or relative that has been convicted of that crime. The potential juror also knows many people who are suspected gang members.
But in your case — a case where all the witnesses are police officers and the defendant is a gang member — he claims that he can be fair.
Juror No. 2 is a woman who has sat through the entire jury selection process with a sour look on her face, as if she were sucking on a lemon. The reason for her discomfort finally becomes apparent: she has a niece whom (she claims) has been unfairly prosecuted for a drug crime. Her niece, she says, was treated unfairly by the system and by the police. She is close with her niece, and believes all the bad things her niece has told her about her treatment at the hands of the police. This juror thinks that if she heard a trial with testimony from police officers, her niece’s experience would always be at the back of her mind.
But, all that said . . . she says that she could be fair.
I’ve been doing this for a while, so trust me on this: in a case that depended heavily on the testimony of police witnesses, you would never, ever, ever get a conviction with either of these two on your jury. I don’t care how credibly the officers testified. I don’t care how well they hold up under the defense’s cross-examination. None of that would matter. With either of these people on the jury, the case would hang (at best), because they would never, ever be able to believe any police officer that took the stand.
But without a peremptory, one or both might end up on your jury.
Juror #1 didn’t even provide a colorable basis for a cause challenge, and no judge would grant one. He said he could be fair, and never gave any hint to the contrary. Of course, you would likely be highly skeptical that he could put aside all the negative experiences he and almost everyone else in his life has had with the police. But that alone is not sufficient to challenge him for cause. Sure, he is an almost certain “not guilty” vote, no matter the evidence — but absent a peremptory challenge, you would be stuck with him.
Juror #2 is a closer case. Depending on the judge, Juror #2 might conceivably be challenged for cause. Her statement that her niece’s experience would “always be at the back of her mind” might cause some judges to find she couldn’t be fair. Other judges, more leery about granting cause challenges, might put more emphasis on her statement (however unbelievable) that she thought she could be fair. Without a peremptory, you would be at the judge’s mercy as to whether you would have to try the case to a jury containing this woman. And if the judge didn’t grant the challenge, the case would be lost (at least hung) before you put on a single witness.
I can hear the liberal hand-wringers already, saying that it’s important to have people who have had bad experiences with police judging police credibility. Let me flip the hypo around for you folks. Let’s say you’re a defense attorney, and through some freakish coincidence, every one of the 12 potential jurors knows someone who has been a victim of the same type of crime your client is accused of committing. Many of them were themselves victims of similar crimes. You notice a number of the potential jurors eyeing your client suspiciously, but they say they can be fair. You don’t believe them — but the judge does, and refuses to excuse them.
Would you feel comfortable with a system that allowed such jurors to sit in judgment of your client?
The bottom line is that peremptory challenges are a critical component of a fair trial, for both sides — particularly in a system that allows relatively minimal questioning of jurors for bias, and that has judges who are reluctant to excuse jurors for cause.
I know there are some of you out there who don’t care if prosecutors ever get convictions. I’ll never convince those folks of anything. But the rest of you should think long and hard before you support a system that takes away peremptories — especially due to flawed and legally unsound arguments like those advanced by Adam Liptak.