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Litigation Journal

Summer 2022 | Experience Black

Sua Sponte: A Judge Comments

Gregg Jeffrey Costa


  • Batson has failed to capture even blatant intentional discrimination
  • Half measures like Washington’s General Rule 37 won’t do.
  • The only way to eliminate discrimination in the use of peremptory strikes is to eliminate peremptories.
Sua Sponte: A Judge Comments
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Batson is broken. Thirty-five years in, racial discrimination still pervades jury selection. The court of appeals on which I serve, which includes the two states with the highest percentages of Black residents, has only twice found a Batson violation. Outside our circuit, things are much the same. According to a study aptly titled Thirty Years of Disappointment, as of 2016, North Carolina appellate courts had never found that a prosecutor violated Batson! So I laud efforts to find a better way to combat the persistent plague of discrimination in jury selection.

But half measures like Washington’s General Rule 37 won’t do. My experience in trying cases, then presiding over trials, and now reviewing them on appeal confirms that Justice Marshall was right: The only way to eliminate discrimination in the use of peremptory strikes is to eliminate peremptories.

Rule 37 correctly recognizes that the biggest impediment to a successful Batson challenge is the intentional discrimination standard. But it is not just a matter of that standard’s failure to capture unconscious bias. Batson has failed to capture even blatant intentional discrimination. Consider a case in which many of my colleagues refused to recognize discrimination despite overwhelming statistical (and other) evidence. The prosecution struck seven of the first eight Black venire members, yet accepted seven of the first eight whites; for the entire jury selection, the prosecution struck twice as many Black jurors as it accepted, while accepting four times as many whites as it struck. The chance that race-neutral strikes would result in that disparity? One in 100.

Why didn’t the court recognize the discrimination those numbers revealed? As mathematically challenged as lawyers can be, more was at work. Judges don’t like saying that lawyers discriminate. That aversion is unfortunate because it undermines the guarantee of equal protection, but it is understandable. Judges have relationships with lawyers who appear before them. In some jurisdictions, those lawyers are a source of votes and campaign funds. And judges favor collegial courtrooms free of personal criticisms. Batson’s failure to eradicate discrimination thus is largely a problem of judicial mentality and courage.

The unwillingness to recognize intentional discrimination also reflects a misunderstanding about that standard. Intention is not motive. A peremptory strike can violate Batson even if it isn’t motivated by racial animus. A decision to strike jurors of a certain race may be a strategic choice rather than a racist one. As Georgetown’s Paul Butler has explained, given well-known racial differences in how people view the criminal justice system, “[t]here are cases in which it would come close to legal malpractice for either the prosecutor or the defense to ignore race.” Consider death penalty cases. Survey after survey shows that Black citizens are less supportive of capital punishment than white citizens. So in a capital case, a Black prosecutor might want to strike Black jurors, while a white defense lawyer might want to strike white jurors. Such strikes violate Batson—the lawyer is striking the juror because of race—but that doesn’t mean the lawyer is racist. Yet, judges and lawyers seem to view Batson violations as charges of racism, a misperception that substantially contributes to Batson’s underenforcement.

Rule 37 may alleviate these related Batson problems—an unwillingness to attach stigma to lawyers and thinking the stigma is greater than it actually is. The rule requires only a showing that one “could” view race as contributing to the strike. But I’m skeptical. The notion that upholding a Batson challenge means the striking lawyer is racist is so ingrained that I doubt the lesser Rule 37 standard will capture what its framers hope, just as the Batson standard has hardly captured intentional discrimination. Rule 37 may root out more discrimination than Batson, but it is unlikely to come close to eliminating it.

There is a reform that would: eliminating peremptories. Why has this obvious solution not gained wider acceptance? Mostly, I think, because of something the supporters of Rule 37 saw in the opposition their more modest reform faced: Lawyers don’t like changes that make lawyers less important. Lawyers believe they can use strikes to pick favorable juries; eliminating strikes removes that opportunity. There is another concern: Eliminating peremptories may result in more hung juries. And then there is Justice Holmes’s observation that “[m]ost of the things we do, we do for no better reason than that our fathers have done them or our neighbors do them.” Peremptories’ common-law heritage dates back almost a thousand years to England (they were even used in Roman trials). Yet, in 1989, even England eliminated peremptories to ensure its juries would reflect the country’s increasing diversity.

There is finally movement in that direction here. This year, Arizona became the first state to eliminate peremptories.

Perhaps the Washington experiment will prove more effective than I predict while also retaining the peremptories that lawyers love. But the surefire way to cleanse the stain of discrimination from our jury system is the full measure of eliminating peremptories. Only then will juries—the voice of “We the People” in our judiciary—reflect a cross-section of our communities.