Court looks again at race and peremptory challenges.

In two cases decided at the end of the term, the Supreme Court breathed new life into the Batson v. Kentucky (1) rule that peremptory challenges cannot be used to exclude prospective jurors based on race. However, the Court's very process of reaching its conclusion in one of the cases illustrates the complexity, of Batson challenges and gives impetus to the argument that the only way to solve the problem of race-based peremptory challenges is to abolish peremptory challenges altogether.

The first case, Johnson v. California, (2) was straightforward. After three African-American jurors were struck from the venire by the prosecutor using peremptory challenges, the petitioner, a black man accused of murdering a white child, was left with an all-white jury. When defense counsel objected, the trial judge--without asking the prosecutor to explain the strikes--ruled that the petitioner had failed to make a prima facie case of purposeful discrimination. Under applicable state precedent, the defendant had to show a "strong likelihood that the exercise of the peremptory challenges were based upon a group rather than an individual basis." (3)

Batson established a three-step test for determining whether a peremptory challenge has been used in a racially discriminatory fashion:

   First a defendant must make a prima facie
   showing that a peremptory challenge has
   been exercised on the basis of race. Second,
   if that showing has been made, the prosecution
   must offer a race-neutral basis for
   striking the juror in question. Third, in
   light of the parties' submissions, the trial
   court must determine whether the defendant
   has shown purposeful discrimination. (4)

The court of appeals reversed Johnson's conviction, but the California Supreme Court reinstated it, holding that the test applied by the trial court was correct. (5) The state high court said the defendant had to make the "strong likelihood" showing before it could be said that he had made the prima facie case required by the first prong of Batson.

The U.S. Supreme Court disagreed. In an 8-1 opinion by Justice John Paul Stevens, the Court held that, while the defendant bears the ultimate burden of proof, he or she is not required to meet this burden to make a prima facie case under the first step of Batson. Rather, the first two steps simply "govern the production of evidence.... 'It is not until the third step that the persuasiveness of the justification becomes relevant--the step in which the trial court determines whether the [defendant] has carried his burden of proving purposeful discrimination.'" (6)

Clearly, this is correct. As the Court notes, it would frequently be "impossible for the defendant to know" all the facts needed to prove purposeful discrimination when first raising a Batson challenge. (7) All he or she can do initially is point to the racial disparities in the prosecutor's use of challenges and call for an explanation. After that explanation is offered, then the defendant (or the prosecutor if he or she raises the challenge) (8) can try to show that those reasons are inadequate.

The second case, Miller-El v. Dretke (Miller-El II) (9), is much more fact-bound and complex--so complex that the 36 pages of opinions cannot be adequately summarized in this article. Suffice it to say that, at Thomas Miller-El's 1986 trial for murder, the prosecutor struck 10 of the 11 potential black jurors, and the case has been tied up in litigation over those strikes ever since--ending up twice before the U.S. Supreme Court.

Justice David Souter's opinion in Miller-El II, for six justices, is a detailed exegesis of the facts, both in and out of the state record. It ultimately concludes that the defendant's Batson challenge was justified, essentially because there appears to have been no convincing reason other than race for striking the black jurors. (10) In contrast to Johnson, there was no mention of any racial issue in this case; rather, there was evidence that the prosecutor's office had a general policy of striking minorities from juries. (11)

Justice Clarence Thomas, writing for three justices, as well as the "seven state and six federal judges [who] have reviewed the evidence and found no error," dissented vigorously. (12) In Thomas's view, the evidence failed to satisfy the requirement of the Antiterrorism and Effective Death Penalty Act (AEDPA) (13) that the state courts' rulings against the petitioner be "unreasonable 'in light of the evidence presented in the state court proceeding.'" (14)

Unlike the usual Supreme Court case, Miller-El II establishes no new law. Instead of weighing the relative merits of the factual arguments of the majority and dissent, it is on Justice Stephen Breyer's concurring opinion that I want to focus. He takes up where Justice Thurgood Marshall left off in Batson, arguing that "the only way to 'end the racial discrimination that peremptories inject into the jury selection process ... [is] to eliminat[e] peremptory challenges entirely.'" (15)

As Breyer points out,

   This case illustrates the practical problems
   of proof that Justice Marshall described.
   ... Miller-El marshaled extensive evidence
   of racial bias. But despite the strength of his
   claim, Miller-El's challenge has resulted in
   17 years of largely unsuccessful and protracted
   litigation--including 8 different judicial
   proceedings and 8 different judicial
   opinions, and involving 23 judges, of whom
   6 found the Batson standard violated and 16
   the contrary. (16)

Breyer further notes that "the complexity of this process reflects the difficulty of finding a legal test that will objectively measure the inherently subjective reasons that underlie use of a peremptory challenge." (17) He then cites numerous studies showing that race-based use of peremptory challenges apparently continues to be common. (18) Moreover, he cites jury selection manuals that recommend rating jurors according to race, at least in cases where race might influence the jury, such as a dispute between a black tenant and a white landlord. (19)

So why would we wish to perpetuate a system that encourages racial stereotyping and results in extensive litigation? Eighteenth-century British legal scholar William Blackstone "recognized the peremptory challenge as an 'arbitrary and capricious species of challenge.'" (20) Nevertheless, the Supreme Court endorsed peremptory challenges in Swain v. Alabama, though conceding that they were not constitutionally required. (21) It is said that the challenge

   (1) teaches the litigant, and
   through him the community,
   that the jury is a good and proper
   mode of deciding matters and
   that its decision should be followed
   because in a real sense the
   jury belongs to the litigant because
   he chooses it, (2) avoids
   trafficking in the core of truth in
   most common stereotypes by
   making unnecessary the grounding
   of challenges for cause in
   claims of group bias, thus allowing
   the covert expression of what
   we dare not say but know is true
   more often than not, and (3)
   serves as a shield for the challenge
   for cause in that questioning
   to determine the appropriateness
   of a cause challenge may
   have so alienated a potential juror
   that, although the lawyer has
   not established any basis for removal,
   the process itself has
   made it necessary to strike the juror
   peremptorily. (22)

The first reason is just window dressing. I doubt that the defendant feels any more attached to the jury, or any more likely to feel bound by its verdict, because his other attorney was able to use peremptory challenges. The second, "allowing the covert expression of what we dare not say," is now prohibited by Batson. The third reason is valid, but could be obviated by eliminating attorney-conducted voir dire and leaving it to the judge.

The peremptory challenge is little more than a tool to choose a jury that is biased in the litigant's favor. After both sides use their challenges, the result is likely to be a jury roughly the same as the one that showed up in the first place. Peremptories, and attorney-conducted voir dire, greatly prolong the voir dire process, and hence the trial. In Miller-El's trial, for example, jury selection took at least five weeks. (23) Voir dire conducted by a judge, limited to ferreting out meaningful reasons why a juror should not serve, can be concluded in a matter of hours. (24)

Worse than their inefficiency is the fact that peremptory challenges can lead to biased juries. When I was a prosecutor, we kept a "jury book" on the entire venire that sat for a month. Toward the end of the month, we knew which jurors had been on juries that acquitted, and we routinely challenged such jurors. This gave us an advantage over defense counsel who knew nothing about how potential jurors had voted in other cases that month. On the other hand, wealthy defendants who can afford jury consultants can use peremptory challenges to skew the jury in their favor. (25)

Eliminating peremptory challenges would speed up the trial, allowing time for more jury trials and reducing the need for plea bargains. It would eliminate Batson problems, which, as Breyer correctly argued, cannot be eliminated through a legal test and often lead to more litigation. Our common law mentors, the British, have abandoned attorney-conducted voir dire and peremptory challenges, (26) and they are not possible (because there are no juries) in the typical trial in continental Europe. (27)

Although Batson applies to both parties, it tends to be prosecutors who run afoul of its strictures, as in these two cases. This is not because prosecutors are likely to be racist, but rather because nonwhite jurors, from the prosecutor's point of view, tend to make poor jurors. It is hardly a secret that as a group, nonwhites are more likely to distrust the police. Consequently, since believing the police's version of events is often the key to conviction, nonwhite jurors are less likely to convict (or so prosecutors believe). From a societal point of view, it would be desirable to have such jurors sit on criminal cases, but prosecutors are interested in convictions, not representative juries.

No one seriously supposes that such prejudices can be ferreted out in voir dire such that jurors who believe that police often lie can be struck for cause. So, purely as a matter of gamesmanship, it makes sense for prosecutors to strike nonwhites peremptorily, and they will continue to do so as long as peremptory challenges are allowed. All Miller-El II will do is force them to come up with more convincing reasons for their actions. If the Court is serious about enforcing Batson, it must ban peremptory challenges. If it doesn't do that, then it should abandon Batson and the litigation that it engenders.

Federal Judge Gerard Lynch of the Southern District of New York disagrees with my proposal because eliminating peremptory challenges would place extra pressure on judges to accept challenges for cause as to certain jurors who seem obviously stupid, strange, or biased in some way that can't be proved, even though "stupid," "strange," and "bias that can't be proved" are not sound bases for challenges for cause. (28) I see no problem in allowing attorneys to have a very few unprovable challenges, if they can reasonably explain why they want a certain juror eliminated. That is, the burden should be on the attorney offering the challenge, rather than on the other side to prove that it was improperly motivated.

Notes

(1.) 476 U.S. 79 (1986).

(2.) 125 S. Ct. 2410 (2005).

(3.) Id. at 2414 (citing People v. Wheeler, 583 P.2d 748 (Cal. 1978)).

(4.) Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003) (Miller-El I) (summarizing Batson, 476 U.S. 79, 96-98).

(5.) Johnson, 125 S. Ct. 2410, 2415.

(6.) Id. at2417-18 (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam).

(7.) Id. at 2417.

(8.) Batson also applies to racially motivated peremptory challenges by defense attorneys, in civil cases, and to challenges based on gender. See cases summarized in Miller-El v. Dretke, 125 S. Ct. 2317, 2342 (2005) (Miller-El II) (Breyer, J., concurring).

(9.) 125 S. Ct. 2317.

(10.) Id. at 2337-40.

(11.) Id. at 2338-39.

(12.) Id. at 2344 (Thomas, J., dissenting).

(13.) 28 U.S.C. [section] 2254(d) (2) (2000).

(14.) Miller-El II, 125 S. Ct. 2317, 2348 (Thomas, J., dissenting) (quoting 28 U.S.C. [section] 2254(d) (2) (2000)).

(15.) Id. at 2340 (Breyer, J., concurring) (quoting Batson, 476 U.S. 79, 102-03 (Marshall, J., concurring)).

(16.) Id. at 2340 (Breyer, J., concurring). The "6" refers to the Supreme Court majority.

(17.) Id. In fact, the Supreme Court has granted yet another Batson case to be heard next year. Rice v. Collins, 365 F.3d 669 (9th Cir. 2004), cert. granted, 125 S. Ct. 2989 (2005) (No. 04-52).

(18.) Miller-El II, 125 S. Ct. 2317, 2341-42 (Breyer, J., concurring). (19.) Id. at 2342.

(20.) Id. at 2343 (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 346 (1769)).

(21.) 380 U.S. 202 (1965), overruled by Batson, 476 U.S. 79.

(22.) 5 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE [section] 22(d) (4th ed. 2004) (omitting internal quotations).

(23.) "Woods was the eighth juror, qualified in the fifth week of jury selection." Miller-El II, 125 S. Ct. 2317, 2330.

(24.) Federal Rule of Criminal Procedure 24(a) permits, but does not require, judge- conducted voir dire.

(25.) These are the reasons I have long argued that attorney-conducted voir dire and peremptory challenges should be abolished. See, e.g., Craig M. Bradley, Reforming the Criminal Trial, 68 IND. L.J. 659 (1993). Accord, Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. CHI. L. REV. 153, 199-211 (1989).

(26.) See Samuel J. Cohen, The Regulation of Peremptory Challenges in the United States and England, 6 B.U. INT'L LJ. 287, 304-08 (1988).

(27.) In France, however, there are jury trials for serious felonies in the Assize court; the prosecution is allowed four peremptory challenges, and the defense five. However, "there is no questioning of prospective jurors by the parties or by the court." Richard Frase, France, in CRIMINAL PROCEDURE: A WORLDWIDE STUDY 143, 172 (Craig Bradley ed., 1999).

(28.) E-mail from Judge Gerard Lynch, U.S. Dist. Ct. S.D.N.Y., to author (Aug. 12, 2005) (on file with author).

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at the Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].