Elizabeth Semel gave a nice talk the other day at the San Francisco Public Defender's Office on Batson error. She teaches at Boalt Hall and was an attorney for Thomas ("Thomas") Miller-El, a Texas murderer who had been sentenced to death after nine of ten blacks were dismissed from the jury by prosecutors.
The Supreme Court, in the two cases to reach it brought by Miller-El, reversed the death penalty verdicts on the ground that the prosecutor improperly used race in exercising peremptory challenges, the ones that you didn't have to give a reason for in an earlier day. Today, by contrast, if the defense, say, objects to the fact that the prosecution is kicking off minorities, the prosecution must provide non-racial grounds or risk aborting the trial or having the challenged juror recalled to the jury box.
All of which set me to thinking that the race rules governing jury selection are a but nutty.
Let's say it's my job to prosecute this case involving white cops and black robbers before a racially mixed jury panel, and it's your job to defend one of the robbers. Did I say "black" robbers? Good. Because this is where the problem arises.
Suppose that in my community, where I'm picking this jury, I happen to know that blacks and the police view each other with a certain amount of skepticism. The cops think the blacks hate them and the blacks know that the cops hate them. Now I'm supposed to pick a jury that's going to convict from a group of blacks and whites.
Who do I want as jurors?
Who do you want as jurors?
You couldn't have teed up the race issue any better than that.
But now the rule is that neither side may legally use race in exercising peremptory challenges.
But that's exactly what you and I have been forced to do whether we wanted or not.
So now we're forced, when challenged, to come up with "other reasons than race" for exercising our limited number of challenges, usually ten in California, except 20 in cases of life in prison or death, as I recall.
Other reasons typically are, "Her (the prospective juror's) answers showed hostility to an aspect of my case," or "She looked at me funny," or "He said that his cousin had been arrested by the police."
The prosecutor typically tries to tailor the racial, ethnic, or other invidious-immutable- element-constituting-illegal-group-discrimination composition of the jury to his witnesses. If the prosecutor has a black cop and a black defendant, the issue is more attitude than race. If the cop is white and the defendant black, race serves as a proxy for attitude. The prosecutor may presume that some blacks may tend to see things more the way of the black defendant than the white cop. Cases turn on such points, as witness the O.J. Simpson trial and Det. Mark Fuhrman. That case was over when it was brought in Central L.A., insuring a largely black venire.
In San Francisco, the Dan White case was over before it got started when the DA chose to ask for the death penalty on a white, blue-collar defendant who murdered a liberal mayor (George Moscone) and a gay supervisor (Harvey Milk). Why? Because the killer juries, the jurors qualfied to serve on death penalty juries because of an expressed willingness to kill murdering defendants, much as the Rev. Pat Robertson, Christian minister extraordinaire, is willing to advocate on national television the hope that Venezuela President Hugo Chavez will be assassinated by our government.
The last thing a San Francisco blue-collar death-qualified jury is going to want to do is to kill their own for killing two people they hate, a liberal and a gay. They're more likely to award Dan White a merit badge, which is exactly what they did. They acquitted of two murder charges, despite the fact that White smuggled his service revolver into City Hall past the metal detectors by climbing in a side window and reloading the revolver after murdering the mayor in order to murder the supervisor.
Instead, the blue-collar killer-jury brought in two voluntary manslaughter verdicts, with one juror explaining later that the jury hoped to reunite the community, surely one of San Francisco's Rodney "Can't we all get along?" King moments.
Had the prosecution dropped the unlikely-to-be-achieved death penalty request and gone for a jury of San Francisco liberals, the result might have been different.
The district attorney lost his job over this fiasco at the next election, his effort not aided by the failure to convict the reputed leader in the S.F. Chinatown Golden Dragon Massacre case shortly before, a case tried by yours truly after not one but two changes of venue (unpleasant publicity after the five murders, eleven woundings in a Chinatown restaurant by that name) in Santa Barbara.
In jury selection, improper racial reasons are the large pink elephant in the room that we all tip-toe around, pretending it isn't there, which we don't want to bump into, but we all sense with close to perfect clarity.
Which leads, of course, to the idea, that if race cannot be considered, then why have peremptory challenges at all? Are peremptory challenges a constitutionally mandated part of the right to a jury trial? I put that question to Prof. Semel after the discussion and she confirmed my surmise that there was no case that made peremptories constitutionally required. Misuse is one thing, but existence is another.
Miller-El v. Dretke (2005) will bring you to Miller-El v. Cockrell (2003) and Batson v. Kentucky, 476 U. S. 79 (1986), which are the leading cases on race in jury selection in criminal cases. The theory is that a defendant is entitled to have his cause decided by a fair cross-section of the community, not a jury that is skewed by the illegal exclusion of identifiable groups from the panel based on the eligibility requirements for jury service, or from the panel by illegal group discrimination through the use of peremptory challenges.
Oh, and what's sauce for the goose is sauce for the gander. The defense is not allowed to exclude all whites in the hope of getting a few blacks on the panel.
The more things change, the more things remain the same. The French have a word for it, "Plus ca change, plus ca la meme chose," as I recall.
So remember, you will do perfectly well in jury selection as long as you promise to remember one thing: Under no circumstances may you think of pink elephants!
Below is Justice Thurgood Marshall's concurrence in Batson, supra, noting that the use of race in criminal trial jury selection is so pervasive and pernicious that even the practitioners may be unaware of it, thus warranting abolition of the use of peremptories by attorneys, for which he calls.
What to put in its place? Would control over jury selection by judges be much better? Since local judges are so frequently selected from the ranks of the prosecution, they may not very likely to wish to upset the racial apple-cart of America, or at least their local apple-cart.
