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March 2017

Panelists call Batson a failure, offer solutions

In 1986, the U.S. Supreme Court in Batson v. Kentucky ruled that a prosecutor’s exercise of race-based peremptory challenges to jurors violated the Equal Protection Clause of the 14th Amendment. Thirty years later, according to the experts, the law has been a colossal failure.

The problem is proving discriminatory motive.

“Batson at 30: A Legacy of Partial Impartiality” was the title of a panel held Friday, Feb. 3 during the Midyear Meeting in Miami. Judges, prosecutors and law professors came together to discuss and explore the reasons and solutions to persistent bias in the justice system. Judge Bernice Donald, U.S. Court of Appeals for the Sixth Circuit in Memphis, Tenn., served as moderator of the panel. Speakers were James Stewart, former trial judge and now district attorney in Shreveport, La.; Stephen B. Bright, who argued the last two Batson cases before the U.S. Supreme Court and is president of the Southern Center for Human Rights and a professor at Yale Law School; Sanford Marks, a Miami-based jury consultant; and Barbara O’Brien, associate professor at the Michigan State University School of Law.

Under Batson, discriminatory peremptory challenges are evaluated using a three-part test. First, the defense must show that the opposing attorney used the challenge because of a discriminatory reason. Second, the prosecutor must provide a race or gender-neutral reason for the challenge. And third, the defense has the burden of proving intentional discrimination. Even though Batson challenges were originally applied to racial discrimination in jury selection they are now applied whenever gender or ethnic background is an issue.

Bright, who argued a Batson case before the Supreme Court case Foster v. Chatman in a decision that came down last May, calls Batson a “tremendous failure” primarily because of the burden of proof.

“You are asking a judge to make two findings on a Batson case, one finding that there was intentional race discrimination and then secondly, and what I think is even harder, is that the prosecutor lied and gave a reason that is not the real reason when in fact the reason was race,” he explained. “The truth of the matter is when you strike a juror there is a whole combination of reasons why a lawyer strikes a juror.”

In the Foster v. Chatman death penalty case, Bright produced evidence of a list used by the prosecutor in the case where the blacks in the jury pool had been color-coded or a letter notation used to denote their race that made it easy to strike during the selection process. He, like others on the panel, said they know of situations where lawyers are coached on how to strike potential jurors and in some instances are given cheat sheets with reasons to strike without excluding people because of race.

Batson challenges are not often raised, the panel said because of the difficulty of proof. But Stewart, a retired Louisiana trial judge who now serves as district attorney, suggests looking for patterns of discrimination in the jury selection process and that lawyers shouldn’t be afraid to raise a Batson challenge.

“Just don’t do a Batson challenge because you think the judge won’t grant it,” Stewart cautioned. “Don’t assume that trial court knows what Batson is supposed to be. Judges assume things sometimes. They are the gatekeepers, make them do their job.”

Bright said Batson has done so little to stop discrimination in the use of preemptory strikes. O’Brien, who co-wrote a study on the jury selection process in North Carolina, has the statistics to support that claim. Her research covered all of the death penalty cases in North Carolina over a 20-year period since Batson. The results showed that of 7, 421 potential jurors, prosecutors struck 56.2 percent of the eligible black jurors and only 25.7 percent of jurors of other races.

“This really shouldn’t be all that surprising given the difficulty of Batson’s burden of proof requirements,” O’Brien said. “Step three can be really difficult showing that the other party is not only using race but that they are lying about it. It’s really easy to come up with a plausible sounding reason for striking and trial judges are understandably reluctant to call someone out as being racist and a liar.”

So what are the solutions?  The panelists say lawyers need to be trained on how to pick a jury without excluding due to race, and that more data is needed to show how people are using preemptory challenges. Bright and Stewart also said there needs to be a reduction in the number of preemptory challenges, which in some jurisdictions can range between three and 22.

 “Reduce the number of preemptory strikes because you can’t do anything else,” Bright said, noting that Virginia allows each side only three preemptory strikes. “But let me caution you that if you take all the power away from the parties, you give all the power to the judge.”

The program was sponsored by the ABA Commission on Racial and Ethnic Diversity in the Profession.

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