Tuesday, August 30, 2005

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 Or perhaps, in an unpublished case, that has already occurred.


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.


At 8:55 PM, Blogger rattlerd said...

I seem to remember the DMN layout about a month ago theorize that doing away with peremptory strikes might well make jury compositions more white, because whites generally answered jury summons in higher rates. How does that bear out in your experience?

At 7:32 PM, Anonymous Anonymous said...

Certainly. They are not allowed to see the potential jurors. All questions are done through audio hookup only, and using random voice pitch alteration devices so that the lawyer asking the question cannot tell the ethnic group of the person answering, or even the sex. Court witnesses will be present to show that the potential juror is answering the questions without outside aid, etc.

At 7:00 AM, Blogger Clay S. Conrad said...

In response to anonymous, remember that demeanor is part of the potential juror's response. If you cannot see someone when they answer a question, or even hear their unaltered voice, it is difficult to assess how forthcoming you believe they are being.

In response to Rattlerd, my belief is that if we notice higher "no-show" rates in some zip codes, that we should proportionately increase the number of summonses sent to those zip codes to balance out the jury pool. This is a far better way of balancing out the jury than the peremptory challenge.


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