Batson Redux: Can We Ever Eliminate Racially Motivated Peremptory Strikes?

A recent case out of Dallas, Texas has caught the attention of the the Dallas Morning News. (DMN recently published an excellent three-part series (1 2 3)on race and jury selection.) Mike, a blawger on the Crime and Federalism site, cites to a transcript on the Dallas Morning News website concerning a trial in which Kerry New, at that time a Dallas prosecutor, struck one juror because of missing teeth, and another for not being sufficiently feminine.

In addition, she struck one black man because he had earrings and gold teeth, and a "head covering," which he resisted removing prior to jury selection.

The State claimed the missing teeth were a problem because they indicated that the juror was from a "certain socioeconomic level that is not a favorable juror for the State." Ms. New went so far as to admit that she was relying on a stereotype for exercising that strike - a stereotype she described as "honest and genuine."

Defense Attorney Clark Birdsall stated that Ms. New's logic was so paper thin that she was "knitting a parachute out of thin air." He correctly noted that "by that line of reasoning, anybody who'se poor is against the State. And if it just so happens that any major ethnic group falls into that poor category, then, by the State's reasoning, they can strike people from that group any time they want to."

The woman who was not dressed with sufficient femininity was "indivative of a liberal lifestyle, which the State would not prefer as a juror."

Turns out that the toothless juror in fact had his teeth.

The point is: what is the State doing striking jurors based on their dress and/or their dental work? I had earlier pointed out that all Batson (the rule that racial stereotypes cannot constitutionally be used in the exercise of peremptory strikes) has accomplished was to make liars out of lawyers (an accomplishment many would think and already been achieved). A potential juror can be stricken for having the same hair-style, manner of dress, or coming from the same neighborhood as, the defendant.

According to Ms. New's logic, a juror can also be stricken for being insufficiently feminine, for having bad teeth, or just for being poor.

When will we hear of a juror being stricken for having the same blood type as a defendant? Or perhaps, in an unpublished case, that has already occurred.

THURGOOD MARSHALL WAS RIGHT

In Batson, Justice Thurgood Marshall argued that the only way to eliminate racist peremptory strikes was to eliminate peremptory strikes. Prosecutors like Kerry New will find no difficulty in rationalizing a good reason to strike every potential black juror who finds their way into court. Clothing, demeanor, tone of voice, attitude, inattentiveness, excessive attentiveness, hair style, poverty, etc., are all available. Moreover, any decent lawyer can ask questions of a juror in such a way that they appear to change their mind, waffling.

Miller-El changed very little, if anything, other than the complexity of the dance steps that must be used to evade justice and the Constitution.

Perhaps a more modest suggestion would be to reduce the number of peremptories available in a felony case from their current levels (as many as fifteen per side, depending on the jurisdiction) to a more modest number like three? In that circumstance, lawyers will be very careful not to base their peremptories on "head coverings," bad teeth, or clothing style, but will look for action signs of real-world bias.

So long as both sides retain an ample number of peremptories, they will "play the odds" using stereotypes once all jurors who've demonstrated legitimate signs of bias are removed. Race, like it or not, will always be one of the most powerful stereotypes available -- and attorneys will always find a way to rationalize their racist strikes.