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Negotiating peremptory challenges.

TABLE OF CONTENTS

INTRODUCTION

I. THE CONTESTED FUNCTION OF THE PEREMPTORY CHALLENGE

 A. The Origins of the Challenge
 B. Justifications for the Challenge
 C. The Peremptory Challenge in America
 D. Responses

II. THE TROUBLE WITH BATSON

 A. Unwieldiness
 B. The Problem of Implicit Bias
 C. Misunderstanding the Attorney's Role
 D. Batson's Failure to Remedy the Exclusion of Minorities
 from Juries

III. NEGOTIATING PEREMPTORY CHALLENGES

 A. The Mechanics of the Proposal
 B. The Benefits of a Negotiation Model
 C. Critiques and Rebuttal

CONCLUSION


INTRODUCTION

"[I]n criminal eases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without sh[o]wing any cause at all; which is ealled a peremptory challenge: a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous."

--William Blaekstone (1)

Of all the contests of wit and will involved in trial practice, none are as fraught as jury selection. If the trial--the impassioned closing argument or the devastating cross-examination--has pride of place in public mythology, jury selection holds that honor among lawyers. Sometimes said to determine the outcome of a trial even before the first witness is sworn, (2) it is a procedure regarded with a peculiar blend of reverence and suspicion. It can consume weeks of court time and hundreds of thousands of dollars of consultant fees. But the primary source of ambivalence about jury selection coalesces around the peremptory challenge and the complicated, counterintuitive scaffolding we have erected around it to prevent its misuse.

Peremptory challenges, also known as peremptory strikes, enable litigants to remove otherwise qualified prospective jurors from their jury panel without any showing of cause. Empirical study--consonant with common intuition--has long revealed that both prosecutors and defense counsel use peremptory challenges to rid the jury of the types of jurors they find most threatening, and that these types correlate with age, gender, and particularly, race. (3) This means that not only do nonwhite defendants frequently have to face trial without any of their peers on their jury but also that substantial numbers of citizens, who have survived challenges for cause only to be summarily dismissed, are denied the opportunity to participate in an important aspect of civic life.

The framework established by the Supreme Court's 1986 decision in Batson v. Kentucky and its progeny tried to remedy the most obvious abuses of the peremptory challenge based on race, and later, gender. (4) The Court thus required that strike proponents give a "race neutral" reason for the strike and directed the trial courts to assess the credibility of the explanation. But the Batson regime has proved largely unsuccessful. Lawyers are often inhibited from raising Batson claims for fear of antagonizing their opponent or the judge, and judges are inhibited from granting Batson motions because of the implied judgment that the strike's proponent is either a racist, a liar, or both. The requirement of a race-neutral explanation for peremptory strikes has not ended racial discrimination in jury selection, nor does it adequately safeguard the rights of the excluded jurors. And it is embarrassing to everyone because it is a pretense--everyone is forced to assert, under pains of violating the Constitution, that race was not a factor in their decisions.

While the Batson framework relies on apparently commonsense assumptions about human behavior, these assumptions are contrary to what we know about human mental processes and the influence of race on decisionmaking. (5) The behavioral theories that seem to undergird Batson are that (1) considerations of race can be purged from the jury selection process, (2) lawyers will be aware of their motivations for striking particular jurors and will report these reasons honestly, and (3) judges will be able to distinguish between honest and dishonest explanations. (6) But these theories are inconsistent with recent advances in cognitive social psychology. While long suspected, there is now substantial empirical evidence that most of us labor under some amount of implicit bias against racial minorities, even when we believe ourselves to be unbiased. (7) The Batson framework operates as if implicit bias barely exists when it almost certainly is a significant factor in jury selection and one that is not amenable to self-report. It is time to subject Batson to behavioral realism--the demand "that the law account for the most accurate model of human thought, decisionmaking, and action provided by the sciences." (8)

There has been no shortage of proposals aimed at remedying racial discrimination in jury selection, ranging from "affirmative strikes" to establishing racial quotas on trial juries. (9) Ultimately, the most effective alternative to Batson would also be the simplest: the abolition of peremptory challenges. Proponents argue that eliminating the challenge would put an end to invidious discrimination, cut down on wasteful litigation, and free lawyers from the contortions of trying to deny all influence of race on their decisionmaking. (10) But abolition presents two problems. First, however compelling the arguments, they cannot override one simple truth: American lawyers like peremptory challenges. Many litigators view peremptory challenges as essential tools for sculpting a jury that will give them and their clients the most favorable audience. As one former litigator has observed, trial lawyers "would sooner dispense with a few amendments to the Constitution than give up peremptory challenges." (11) Accordingly, no U.S. jurisdiction has ever eliminated peremptory challenges. (12) Second, there is an intrinsic value to the peremptory challenge that would be lost if it were eliminated. Peremptory challenges allow litigants to participate in the creation of the factfinder, free from interference by courts. This value of autonomy should not be lightly discarded.

So we find ourselves at an impasse. We can keep tinkering with the formula. We can keep issuing impassioned, but doomed, calls for abolition. Or we can recognize that jury selection, at the discretionary, peremptory challenge stage, simply should not be constitutionalized. It may be time to admit that the Batson experiment has failed because stereotyping in some form is the essence of jury selection. (13) But that does not mean we need to revert to the bad, old days of institutionalized racism, where many prosecutors' offices had policies of systematically purging jury panels of African-American jurors. (14) Instead, we should consider a different approach for using peremptory challenges: that they be allowed only on consent.

If implicit bias is indeed a pervasive fact, the question then becomes how to prevent it from dictating outcomes in a discriminatory way. Having parties swear that no considerations of race entered their minds in deciding which jurors to strike does not provide the moral message we think it does. Instead of sending a clear signal that racial discrimination will not be tolerated, the Batson hearing is usually a far more degrading exercise and one that does not prevent minorities from being summarily excluded from jury service. When explanations such as "he looks like a drug dealer to me" (15) are accepted as "race neutral," the message is effective tolerance of racial bias.

Drawing on empirical studies, psychological research, and the emerging school of behavioral realism, I suggest that courts should abandon the failed constitutional experiment of trying to divine attorney intent. Social science research strongly suggests that such an undertaking is futile and only encourages specious explanations. Instead, we should focus on what really matters: increasing the opportunities for all Americans to participate in jury service, allowing defendants a greater chance to have peers on their jury, (16) and protecting the dignity of all participants, litigants and prospective jurors alike. We should therefore jettison the procedurally unwieldy, inherently unstable world of Batson and replace it with a system in which the parties could determine which prospective jurors should be challenged through negotiation.

Under this proposal, voir dire would proceed as usual. (17) Lawyers would raise any challenges for cause, on which the court would rule. Then, each side would be presented with a panel of twelve qualified, impartial jurors. But instead of each side only conferring with her client or co-counsel to decide which jurors to strike peremptorily, the adversaries would confer with each other. Neither party would have exclusive power to decide, and any strikes would be the product of mutual consent. If the parties agreed to a shortlist of jurors to strike, they would then present their choices to the court. The struck jurors would not know which side had struck them or if the strike was the product of a joint decision. The lawyers would not have to make excuses for their actions. If the parties failed to reach an agreement, they would end up with the first twelve jurors on the panel. Abolition, therefore, would be the default position, the price to pay if the parties failed to come to terms in any given case.

While negotiation may seem to be a counterintuitive solution to the problems raised by peremptory challenges, it is closer to a challenge-based system than might initially be apparent. Notwithstanding the juror-centered conception of rights promoted by the Batson line of cases, enforcement of these rights is largely a matter of adversarial preference. While judges have the authority to raise Batson objections sua sponte, they appear to exercise this power extremely rarely. (18) So whether a peremptory strike is subject to the Batson analysis in the first place is typically dependent on attorney choice. (19) Negotiation just provides another means of expressing party preferences.

Some of the benefits of this proposal would be similar to those gained by eliminating the peremptory challenge: less litigation, a more robust safeguard against racial discrimination, and potentially broader participation by prospective jurors. But unlike simply eliminating peremptory challenges, negotiation would better preserve party autonomy and the acceptability of verdicts by maintaining some ability of the parties to sculpt a jury of their own choosing.

Part I of this Article briefly sketches the history of the peremptory challenge and the theoretical and practical justifications for its use. It argues that, of all the reasons given in support of the peremptory challenge, the only justification that is specific to the peremptory challenge, as opposed to the challenge for cause, is party autonomy and independence from the court. This Part details how the Batson regime changed, in some important ways, the nature of the peremptory challenge and infringed on the most justifiable reason for its existence.

Part II reviews the reasons why an alternative to the Batson structure is desirable, even necessary. This Part considers the claims in the literature and by practitioners and judges that the Batson framework is not effective at eradicating racial discrimination and examines some of the reasons why this is so. It argues that the Batson line of cases fundamentally misunderstood attorneys' motivations and rested its entire framework on unsupported assumptions about human behavior. As the most recent cognitive science points in just the opposite direction, this Part contends that the Batson doctrine needs to come to terms with empirical reality.

Part III outlines the proposal of negotiating peremptory challenges in more detail and explores the ways in which negotiation would provide a more robust shield against discrimination, protect the original purposes of the peremptory challenge, and preserve the dignity of the court and the participants. This Part considers the potential doctrinal and practical critiques of the proposal, particularly the concerns that the proposal would not protect the rights of the absent jurors, that it would enable lawyers to engage in collusion, and that it would unfairly benefit the defense. The Article concludes that, despite certain inevitable shortcomings, negotiating peremptory challenges would be a significant improvement over our current regime.

I. THE CONTESTED FUNCTION OF THE PEREMPTORY CHALLENGE

The process of jury selection involves two related but distinct inquiries: a search for qualified jurors and a shaping of the jury through peremptory challenges. (20) To begin, prospective jurors are questioned in a process known as voir dire. (21) If a prospective juror appears to have prejudged the case or seems biased for any reason, she can be challenged for cause, and that motion will be ruled on by the court. (22) In addition, the parties may exercise a set number of peremptory challenges and remove any jurors without cause. (23) The twelve (24) who remain, not counting any alternate jurors, are then sworn and become the trial jury. This Part considers the historical origins of the peremptory challenge, the justifications for this practice in the modern justice system, and how its complexion has been transformed by Batson and its progeny.

A. THE ORIGINS OF THE CHALLENGE

The peremptory challenge, the Supreme Court has observed, is "an arbitrary and capricious right, [which] must be exercised with full freedom, or it fails of its full purpose." (25) Unlike a challenge for cause, which only "permit[s] rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality," (26) a peremptory challenge may be "exercised without a reason stated, without inquiry, and without being subject to the court's control." (27)

In the early fourteenth century, the English Parliament abolished the Crown's right to challenge jurors simply by claiming the challenge was being exercised in the King's name. (28) Thereafter, "for more than five hundred years, use of the peremptory challenge was the exclusive right of the defense lawyer as a means of protecting the fair trial rights of an accused." (29) While defendants were entitled to have up to three dozen peremptory challenges, (30) these rights appear to have been rarely exercised. (31) Over the next centuries, the number of challenges was gradually reduced until England abandoned the peremptory challenge entirely in 1988. (32)

Conversely, the peremptory challenge flourished in the United States. (33) Towards the end of the nineteenth century, jury selection procedures expanded, lengthening the process "to a tedious and exasperating extent," as one contemporary commentator griped. (34) More importantly, the challenge took on a new significance in the face of an increasingly heterogeneous jury pool. Before the Civil Rights Act of 1875, the racially motivated use of peremptory challenges did not arise because, in most states, African-Americans were rarely called to jury service. (35) But as Albert Alschuler observed, as eligibility for jury service broadened, "manifest[ing] democratic faith in the popular administration of justice, the peremptory challenge manifested countervailing doubt, mistrust, and ambivalence." (36)

B. JUSTIFICATIONS FOR THE CHALLENGE

The justifications for the peremptory challenge have changed very little since Blackstone described what, in his view, were the two primary reasons for its use. The first reason is that such a challenge could be an arbitrary prerogative: a litigant may simply have been seized with a sudden dislike for a juror, and "the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike." (37) Second, the peremptory challenge could protect a defendant from the resentment engendered in a prospective juror by a failed challenge for cause. (38) The most convincing justifications for the challenge rest on notions of party autonomy and participation--the theory that, by giving the litigants the chance to select their own juries, they are more likely to see the result reached by that jury as fair.

1. Impartiality

Impartiality--or at least its appearance--is the value most often invoked in support of the challenge. "The function of the challenge," wrote the Supreme Court in Swain v. Alabama, is primarily "to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise." (39) The peremptory challenge has therefore been celebrated as "a suitable and necessary method of securing juries which in fact and in the opinion of the parties are fair and impartial." (40)

But this account is unconvincing. (41) "In the exercise of peremptory challenges," writes one commentator, "the lawyers, of course, seek not an impartial jury, but rather jurors most favorable to their client's interests." (42) Given the fact that removing biased jurors is the role of the challenge for cause, the most plausible argument is that peremptory challenges enable the parties to "eliminate extremes of partiality on both sides," (43) effectively canceling each other out. (44) The prosecution can strike all of the most pro-defense jurors, the defense can strike all of the most pro-prosecution jurors, and the remaining jurors are expected to cluster at the crest of the bell curve of neutrality. This idea is long-standing--as Barbara Babcock described the process in 1975:
 [N]either litigant is trying to choose "impartial" jurors, but
 rather to eliminate those who are sympathetic to the other side,
 hopefully leaving only those biased for him. But the interplay of
 the efforts of both sides to accomplish the same end should leave
 surviving jurors who are, as Lord Coke described them, "indifferent
 as they stand unsworn." (45)


In practice, this means that "[t]he police officer's brother and the flower child will be among the first casualties in the striking process." (46)

Of course, whether the two sides' strikes really cancel each other out depends on the number of favorable jurors in the pool to begin with; sheer mathematics will benefit the side whose favorable jurors are more numerous. In a study of capital juries in Philadelphia, researchers found that the prime targets for prosecution strikes--typically, young, African-American male jurors--appeared in jury pools in far fewer numbers than the prime targets for the defense--typically, older, white male jurors. "As a result of this disparity in the sizes of their respective target groups, the [State] was more effective than defense counsel in depleting target group members from the pools of death eligible cases that each side considered." (47) The mechanics of peremptory challenges therefore favor the side with the most to gain from majority participation, tilting the balance against the litigant whose most favorable jurors are few. (48)

Finally, embedded in the idea that the challenge can eliminate "extremes of partiality," leaving only the most "indifferent" jurors, is the assumption that an impartial jury is equivalent to the sum of its parts--that the twelve blandest jurors (often those who simply gave the fewest answers during voir dire) will form the most impartial jury. Another arguably more persuasive view is that a truly impartial jury is one, not from which strong opinions have been purged, but whose impartiality is the fruit of the deliberative process. Impartiality might more properly be seen as a perspective forged by the confrontation of diverse points of view rather than an immutable quality possessed by twelve separate people. (49) On this view, the peremptory challenge does more to hinder impartiality than to champion it.

2. Compensating for the Challenge for Cause

Peremptory challenges are also valued for their ability to repair any injury caused by unsuccessful challenges for cause, particularly when the juror is aware that she has been challenged--and by whom--and then takes a rather jaundiced view of that party. (50) Peremptory challenges defuse this fear and encourage a full and free voir dire (subject, of course, to the goodwill and patience of the judge, which typically flourish in inverse proportion to the length of the examination). (51)

Peremptory challenges thus provide "a margin of protection for challenges for cause." (52) Not only are they quick and easy to use, (53) but they also support the goal of impartiality by lessening the risk of error incurred by a challenge for cause improperly denied. (54) But this idea of the peremptory challenge as "an essential fallback" (55) is less a function of any innate quality of the peremptory challenge than a comment on the failings of the challenge for cause. Worse, the very availability of the peremptory challenge seems to remove any incentive to improve the functioning of the challenge for cause. As one state court judge noted, "Peremptory challenges have made all of us lazy--judges included--when it comes to challenges for cause." (56) Indeed, the existence of the peremptory challenge allows judges to sidestep the unpleasant task of ruling on whether a juror is credible when she assures the court that she can be fair. (57) It is easier simply to leave the juror on the panel and let the lawyers dismiss her peremptorily.

It is true that when challenges for cause fall short, peremptory challenges can be profitably employed to fill any gaps. But if challenges for cause are used too parsimoniously or inhibit the lawyers' abilities to question the jurors, surely this could be ameliorated. Perhaps courts could implement a new norm of expanded challenges for cause or procedures that excuse jurors neutrally (by the clerk of court, say). Bar associations could improve lawyer training so that they can conduct effective voir dire without offending prospective jurors. (58) Whatever steps are taken, it hardly seems unreasonable to consider ways in which to improve the challenge for cause, rather than leaving it in an unsatisfactory state and relying on the peremptory challenge to mop up after it.

3. Autonomy and Participation

In the end, the most persuasive argument in favor of the peremptory challenge is that it protects the parties' autonomy by allowing them an active role in choosing their fact finder, beyond the court's control. It is this quality of free choice that enables a litigant to "have a good opinion of his jury, the want of which might totally disconcert him." (59) The capriciousness of the original challenge gave a defendant the unreviewable power to sculpt the jury as he saw fit, without having to explain or even "being able to assign a reason for such his dislike." (60) Even today, in a criminal justice system that can reduce defendants to near-powerlessness, the challenge's arbitrariness can give participants a sense of control--they can get rid of jurors simply because they develop a spontaneous dislike for them based on no more than "sudden impressions and unaccountable prejudices." (61) For one brief moment during jury selection, even the humblest litigant can wield the autocratic power of the Queen of Hearts, dismissing anyone who displeases her. (62)

In addition, some scholars contend that participating in the creation of the tribunal is valuable in itself. One of the principal functions of the peremptory challenge, writes Barbara Underwood, is "to provide the parties with an opportunity to participate in the construction of the decision-making body, thereby enlisting their confidence in its decision." (63) This function is pedagogical: the challenge "teaches the litigant, and through him the community, that the jury is a good and proper mode for deciding matters and that its decision should be followed because in a real sense the jury belongs to the litigant: he chooses it." (64)

The autonomy and opportunity for participation provided by the challenge may also enhance the acceptability of verdicts to the parties and the public. Certainly, being judged by a jury that one had some role in creating, as opposed to one that has simply been imposed on the litigant, may provide the litigant some solace. (65) Regardless of conviction, the respect for one's autonomy and freedom to choose may help legitimize the jury's verdict in the eyes of the litigants.

Most importantly, the challenge allows the parties a measure of independence from the judge. "[T]he best--indeed, after Batson, the only--justification for peremptory challenges," writes Charles Ogletree, "is that the trial judge should not necessarily have the sole power to determine who can sit on a jury...." (66) In a system without peremptory challenges, the only way to construct the jury would be through challenges for cause, which are decided by the court. Therefore the judge alone could be responsible for determining who served on the jury. (67) This is not a trivial concern. For nearly fifty years, it has been an article of faith that the constitutional guarantees of trial by jury "reflect a fundamental decision about the exercise of official power--a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges." (68) The peremptory challenge therefore provides a systemic advantage, preserving a sphere of action in jury selection over which the court has limited control.

C. THE PEREMPTORY CHALLENGE IN AMERICA

The story of the peremptory challenge in America is inextricably linked with racial discrimination and the Supreme Court's efforts to counteract it. As discrimination evolved from explicit statutory bans on African-American participation in jury service (69) to strategic but no less blatant uses of peremptory challenges, (70) the Court was forced to come up with a way to reconcile the peremptory challenge's arbitrary and capricious nature with the requirements of equal protection.

1. Before Batson

While the Supreme Court has frequently described the peremptory challenge as "necessary" for a fair trial, it has always stopped short of characterizing the peremptory challenge as a constitutional requirement. (71) "Challenge for cause is doubtless a constitutional right," a Massachusetts federal circuit court noted in 1857, "as without its exercise the prisoner might be deprived of an impartial jury, but the peremptory challenge is a privilege conferred by law, which may be enlarged, abridged, or annulled by the legislative authority." (72)

The first real challenge to the peremptory's free exercise came in Swain v. Alabama, over a century later. Robert Swain, an African-American sentenced to death for the rape of a white woman, had been convicted by a jury from which every African-American had been peremptorily struck. (73) In a fairly uncomfortable opinion, the Swain Court struggled to reconcile the dictates of the Equal Protection Clause with the "arbitrary and capricious" nature of the challenge. The Court had no trouble with the broad strokes, reaffirming the fact that "a State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause" (74) and condemning such practices as antithetical to "'our basic concepts of a democratic society and a representative government.'" (75)

Yet the Court could not bring itself to abandon the Blackstonian vision of the peremptory challenge. Justice Byron White, writing for the Court, waxed eloquent on the challenge's long and venerable history, its persistence in the face of criticism, and its extensive use. (76) The Court declined to examine the reasons that might have motivated the prosecutor to strike all six African-American jurors from the panel, (77) averring that the challenge "'must be exercised with full freedom, or it fails of its full purpose.'" (78)

Faced with the tension between the Constitution and the peremptory challenge, (79) the Court chose the challenge, concluding that "[t]o subject the prosecutor's challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge." (80) And that the Court refused to countenance. (81)

2. Batson v. Kentucky and Thereafter

Unrestricted by the commands of equal protection, the peremptory challenge after Swain endured as "the last bastion of undisguised racial discrimination in the criminal justice system." (82) Batson v. Kentucky was therefore an important step in deterring the blatant and unapologetic use of race in jury selection. James Kirkland Batson, an African-American, was charged with second-degree burglary and receipt of stolen goods. (83) At trial, the prosecutor used his peremptory challenges to remove all four black prospective jurors, and Batson was consequently convicted by an all-white jury. (84) For the first time, the Court held that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." (85)

To guide the lower courts, Batson established a three-step framework for determining whether a peremptory strike had been exercised in violation of equal protection. First, the defendant had to establish a prima facie case of purposeful discrimination. (86) Once the defendant made this showing, the burden shifted to the prosecution to "come forward with a neutral explanation for challenging black jurors." (87) The Court emphasized that this explanation "need not rise to the level justifying exercise of a challenge for cause," but warned that the prosecutor could not rebut a prima facie case by stating that he had acted on the assumption that the struck jurors "would be partial to the defendant because of their shared race." (88) At the third step, the Court directed trial courts to determine whether the defendant had established purposeful discrimination. (89)

Despite Batson's own insistence on racial commonality between the defendant and the prospective jurors, (90) the Court soon changed its focus from the exclusion of nonwhite jurors from nonwhite defendants' cases to protecting the rights of the excluded jurors, regardless of the race of the defendant. In Powers v. Ohio, a case in which a white defendant objected to the exclusion of black jurors, the Court held that "the Equal Protection Clause prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race, a practice that forecloses a significant opportunity to participate in civic life." (91)

Accordingly, the right to make a Batson claim was extended to defendants who did not share the race of the excluded jurors, (92) to civil litigants, (93) and to the prosecution. (94) Protected categories expanded to include gender and ethnicity. (95) The end result was a jurisprudence that changed the nature of the peremptory challenge, prompting Justice Sandra Day O'Connor to muse that "as we add, layer by layer, additional constitutional restraints on the use of the peremptory, we force lawyers to articulate what we know is often inarticulable. In so doing, we make the peremptory challenge less discretionary and more like a challenge for cause." (96)

Demanding litigants to give a reason for their exercise of an "arbitrary and capricious right" makes little sense, as Chief Justice Warren Burger, dissenting in Batson, pointed out. "It is called a peremptory challenge, because the prisoner may challenge peremptorily, on his own dislike, without showing of any cause," (97) wrote the Chief Justice, exasperation seeping through every line. "Analytically, there is no middle ground: A challenge either has to be explained or it does not." (98)

What we are left with today is a "quasi-peremptory challenge" that sort of has to be explained. (99) The requirement of an explanation undermines the values of autonomy and free choice that the challenge represented. Yet the explanation does not have to be "persuasive, or even plausible," (100) so long as the trial court finds it credible. (101) Meanwhile, the Court has given the trial courts very little guidance as to how, exactly, they are to determine an attorney's credibility. And "without clearer standards, Batson asks trial judges to read attorneys' minds," (102) something they are singularly ill-equipped to do.

D. RESPONSES

What we have now is the worst of both words: persistent concerns about racial discrimination paired with a peremptory challenge that does not function properly. The chorus of criticism has not been lacking--Batson's standards have been dubbed "a shameful sham," (103) "a disingenuous charade," (104) and a possible "invitation to hypocrisy." (105) Finding ways either to improve the Batson framework or to eliminate peremptory challenges has spawned its own cottage industry of academic and judicial proposals to "fix" jury selection. All these proposals share a common goal: to lessen the race-based use of peremptory challenges. But short of mandating affirmative selection or a quota system, the only truly effective way of ending the race-based use of peremptory challenges would be to eliminate the peremptory challenge entirely--a solution unlikely to happen and that raises problems of its own.

1. Tweaks, Quotas, and Affirmative Selection

Proposals to improve the current regime fall into two camps: either a complete overhaul of jury selection procedures or a strengthening of the Batson framework. The most ambitious proposals have advocated for affirmative selection, which would allow litigants to designate certain jurors to remain on the panel, (106) or racial quotas to ensure some demographic diversity on jury panels, particularly at trials of nonwhite defendants. (107)

There have been proposals to give litigants cumulative voting rights borrowed from the corporate sphere (108) and to develop a "peremptory block" system, where each side would submit to the judge a confidential list of venire members they designated as "blocked"; if the other side then attempted to strike that juror, the juror would be automatically seated on the jury. (109) Others have called for voir dire to be conducted entirely by jury questionnaire, so that selection would be "blind" rather than influenced by group status, (110) or for proposed ethical rules that would prevent attorneys from exercising their challenges on the basis of race. (111)

Commentators have also suggested modifications to Batson's framework (112) in an attempt to strengthen the notoriously weak second prong of the test. (113) Some propose that trial courts should avoid making any determination of the striking attorney's subjective intent, (114) or advocate for an expansion of attorney-conducted voir dire, (115) or urge courts to reject explanations that betray a mixed motive. (116) But these proposals do not address the fact that some lawyers are reluctant to raise Batson challenges in the first place, often for fear of being "Batsoned" in return. And many other litigants never get to step two of the Batson test. (117)

However ingenious some of these suggestions, there is no indication that any have ever been adopted. Some may have been too complicated to implement. (118) Some merely shifted the standard slightly. And most did not give sufficient assurance that they would effectively remediate racial discrimination in jury selection or help resolve the tensions between the Batson framework and the value of the peremptory challenge.

2. Abolition of Peremptory Strikes

The only truly effective curb on racially motivated peremptory challenges is to eliminate them entirely. Since they are not constitutionally mandated, there is no obligation to keep them. Indeed, England, the birthplace Of the peremptory challenge, abolished the challenge some twenty-five years ago. (119) In the United States, ever since Justice Thurgood Marshall warned in his Batson concurrence that "[t]he decision today will not end the racial discrimination that peremptories inject into the jury-selection process," and suggested that only elimination of the challenges could do so, (120) there has been a steady chorus of calls for abolition from scholars, judges, and Supreme Court Justices. (121) Yet no U.S. jurisdiction has to date eliminated the peremptory challenge. (122)

The foremost reason that peremptory challenges have survived seems to be a lack of political will: Trial lawyers value peremptory challenges and are unlikely ever to agree to their abolition. (123) Some litigators see them as an essential protection for their clients' rights. "To take away that tool, especially from that most benighted soul--the unpopular criminal defendant who is black, who is Latino, who is a pariah," wrote one criminal defense attorney, "is, in and of itself, a criminal and amoral act." (124) Other lawyers simply "love peremptory challenges because they are fun." (125) Either way, lawyers are not likely to part with their challenges anytime soon. (126)

Even so, abolition is not an optimal solution. Without the peremptory challenge, the judge alone would have final say over who serves on the jury. (127) "If we were to abolish peremptory challenges altogether, parties would be totally dependent on the goodwill and sensibilities of the particular trial judge," cautioned one commentator. "Systemically, that would put an enormous amount of largely unchecked power in the hands of one individual." (128) Beyond serving an error-correcting function for the challenge for cause, the peremptory challenge can provide genuine protection against the "compliant, biased, or eccentric judge" (129) making a final ruling on the challenge for cause.

Judges are no more immune to implicit biases than anyone else. (130) Even under an expanded regime of challenges for cause, the judge may still sympathize more readily with one side's argument than the other. (131) The peremptory challenge, which allows the litigants rather than the judge to shape the jury, may be necessary to the jury's democratic function. This Article's proposal, therefore, seeks to preserve the best of the challenge--its ability to give the parties autonomy to make their own decisions and independence from the judge--while erecting an effective block against its most invidious uses.

II. THE TROUBLE WITH WATSON

Despite its logical incoherence and the enforcement difficulties it presents, Batson's framework would be worth the price if it significantly helped remedy illegal discrimination in jury selection. But Batson has not fulfilled its promise of remedying the exclusion of minority jurors from jury service. Instead, it has created cumbersome procedures and appeals of Dickensian length, all because the Batson Court failed to recognize two fundamental truths. First, cognitive biases will doom any framework based on self-reporting. Second, the Batson framework is in tension with lawyers' obligations of zealous advocacy. The end result is that Batson has failed in its mission of protecting the right of democratic participation by all.

A. UNWIELDINESS

Without making an appreciable difference to lawyers' strategies (although no doubt successfully driving them underground), Batson has proved to be an "enforcement nightmare" at all levels of the court system. (132) The problems with Batson are built into its unwieldy structure. First, the protection relies on the aggrieved party to raise it, and lawyers often fail to raise Batson objections. (133) This seems to be less a result of attorney incompetence than simple strategy: on the evidence, "the two sides tolerate one another's discriminatory use of peremptories to reduce the risk that a successful retaliatory claim will be brought by the other side." (134) Given the number of collateral attacks for which defendants claim they received ineffective assistance of counsel because their attorneys failed to raise Batson issues, at least some legitimate claims are not raised in the first place. (135) Finally, now that prosecutors can make "reverse Batson" claims against defendants under Georgia v. McCollum, (136) Batson has proved to be a far more effective sword against defendants than a shield to protect them, as "reverse Batson" claims appear to enjoy a far higher success rate at trial than defendants' Batson claims against prosecutors. (137)

Another great disadvantage is that Batson's standards are inconsistently applied and interpreted, generating a large quantity of ultimately unedifying litigation. (138) If the actual Batson process during jury selection is often fairly quick and informal--one lawyer objects, the judge directs the other lawyer to respond--the appellate process can drag on for years. (139) Batson claims at trial are frequently denied, as "[t]he current framework makes it exceedingly difficult for judges to reject even the most spurious of peremptory strikes." (140) But there are many technical reversals, as trial courts misinterpret how Batson should be applied or fail to maintain an adequate record. (141) As a result, cases are remanded and re-appealed, with defendants in limbo and victims denied closure. All of the post-trial challenges, counterchallenges, and reopening of old records take up an enormous amount of time and resources. A Batson violation at trial can lead to automatic reversal on appeal, but the success rate is quite low. (142) Instead, a far more likely outcome is a strange beast variously called a Batson hearing or a "reconstruction hearing," (143) which requires parties to testify years later to what they were thinking in the split seconds during which they made strikes, based on little more than dim memories and scrawled handwritten notes. And then the claim is usually denied. (144)

In the face of all this, it would be hard to improve on one commentator's observation that "[i]f one wanted to understand how the American trial system for criminal cases came to be the most expensive and time-consuming in the world, it would be difficult to find a better starting point than Batson." (145)
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Title Annotation:Introduction through II. The Trouble with Batson A. Unwieldiness, p. 1-30
Author:Morrison, Caren Myers
Publication:Journal of Criminal Law and Criminology
Date:Jan 1, 2014
Words:6651
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