08/26/2008
Early this month, the Pennsylvania Supreme Court rejected a challenge to a death sentence that dates back to 1988. The defendant claimed that the prosecutor, Jack McMahon, had, contrary to the rule in Batson v. Kentucky, stricken black jurors on racial grounds alone. [Justices OK Juror Challenges Involving Prosecutor From Controversial Training Tape By Amaris Elliott-Engel, The Legal Intelligencer, August 5, 2008]The journalist and her favorite in the fight, death row inmate Robin Cook, were excited by McMahon’s having been taped giving advice on how to skirt Batson. This advice from the Philadelphia District Attorney’s office, in varying forms, is circulated in the law schools as an example of naughtiness, although I remember my own unfailingly liberal professors being pretty blase about it (the ones who had practiced law, anyway). And the actual remarks are nuanced: older black men from the South, for instance, are preferable because they're more conservative and likely to convict.
But a few points. One, any attorney who’s ever tried a case, civil or criminal, in any place in America with more than one race, knows the reality on the ground: blacks and other minorities are likely to side with plaintiffs and criminal defendants, and whites (and to some extent, Asians) side with civil defendants and prosecutors. It’s so blindingly obvious that most attorneys, regardless of their personal political views, will agree to this.
One supervising attorney years ago said his own Jewish mother wouldn’t vote for his client (a frequent civil defendant), even if he were defending the case. In areas where the jury pool is predominately black, that fact alone can be the biggest driver of a personal injury case’s value, especially when the plaintiff is black. A plaintiff’s attorney with the ubiquitous Hispanic injury victim once told me, as the case languished without settling, "Well, I'll just have to hope I get some sympathetic Hispanics on the jury."
Which brings me to my second point. The rule in Batson is that a trial lawyer can’t strike a potential juror for solely — or perhaps even partly — racial reasons. In other words, "Oh, I see that Juror No. 3 is black" is not a lawful reason for striking him. There must be a "race-neutral" reason, like, his brother’s in jail, so he’s not likely to side with police and prosecutors.
But presumably, Batson would not prohibit keeping a juror solely for racial reasons. As in, "Juror No. 2 is Hispanic, and so’s my plaintiff, so I'll scramble to keep him on." (It does prevent striking white jurors solely for being white, and a former colleague was said to have brought up several "reverse Batsons"). Does this square with the spirit of "race doesn’t matter" said to inform these issues? Isn’t the "keeping attorney" engaging in the same racial generalizations as the striking attorney? Wouldn’t consistency require barring all profit from racial generalizations? Ah, well, not when the beneficiaries are black or Hispanic, you see.
As a sub-point, note that these challenges typically come up when there’s a black criminal defendant, which means that black criminal defendants have an attenuated right to a jury of as many fellow blacks as possible (courts will deny that anyone has this right, but it’s a practical result of Batson games). Do whites benefit as often, either as criminal defendants themselves, or members of society at large? Probably not, and one wonders how sympathetic white jurors are to white criminal defendants, anyway.
As another sub-point, note how nobody in any of these dramas ever questions the reality of race, a point so satisfyingly noted in Race: The Reality of Human Differences, by Sarich and Miele. I suppose a prosecutor in a jam might retort, "Well, your honor, given that various authorities have declared that 'race does not exist,' I think the burden switches to the defense to show that the juror I struck was actually black."
And keep noting: the assumption that a black juror is likely to be sympathetic to a black defendant is never questioned by lawyers or the courts, who, as Sarich and Miele observe, would be expected to question anything even remotely questionable. (Nobody ever questions this in Voting Rights Act cases, either.)
Some reformers, mindful of these games, have suggested getting rid of "peremptory" (no explanation required) juror challenges altogether, which is worth considering. But the Batson batty-ness is yet another example of the way in which we can’t, in fact, all "just get along."
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