June 13, 2016
I usually address my posts to attorneys with suggestions concerning jury issues. But today, I want to address trial judges (and attorneys) in light of the recent decision in Foster v. Chatman, 136 S. Ct. 290 (2016), concerning the discriminatory use of peremptory challenges.
Foster v. Chatman: Poster Child for Discriminatory Purpose
First, some basic facts. Timothy Foster, a black man, was convicted of capital murder in Georgia in 1987, months after the landmark Batson v. Kentucky, 476 U.S. 79 (1986), decision banning discriminatory use of peremptory challenges based on race. While five blacks were qualified during voir dire, none made it on the jury. One black potential juror, Shirley Powell, was removed for cause the day peremptories were to be exercised (she came in to court and notified the court that she had a close friend who was related to Foster). The prosecutor used four of its challenges to remove the remaining black jurors. The defense raised a Batson challenge setting in motion the three-step Batson procedure: (a) the defense presents a prima facie case that a peremptory challenge had been exercised based on race; (b) the prosecution must provide “race neutral” explanations for its disputed exercise of peremptory challenges; and (c) the judge decides whether the defendant has shown purposeful discrimination. It was this last step that was at issue in this case. While all four black potential jurors were removed by the prosecution, only two black potential jurors, Marilyn Garrett and Eddie Hood, were subject to Batson claims. The prosecution made a number of justifications (sometimes contradictory) for its exercise of peremptory challenges over the course of years of litigation that followed. For Ms. Garrett, the prosecution listed 11 “race neutral” reasons for its challenge, including that she worked with disadvantaged youth, looked at the ground during voir dire questioning, gave short answers during questioning, appeared nervous, was too young, misrepresented her familiarity with the crime scene area, was divorced, and that the defense did not ask her questions on critical trial issues such as insanity, alcohol use, or “much questions” on publicity, among other factors. In addition, the prosecutor claimed that he had not decided to remove Ms. Garrett until Ms. Powell (the black woman who was removed for cause that morning) was replaced with an acceptable (white) potential juror.
Hmm . . . sounds reasonable . . . except for (a) the prosecutor already had Ms. Garrett’s name on the “definite NO’s” list, which consisted of those jurors to be struck <No original intention to strike—false>; (b) the defense asked her several questions on each of the critical trial issues as reflected in the trial transcript <failure of defense to ask critical questions—false>; (c) the prosecution failed to strike three of four divorced white potential jurors <did not want divorced jurors—false>; (d) the prosecutor failed to strike eight white potential jurors who were under 36, two of which served on the jury, with one of these being 21 years old <too young—false>; (e) the prosecution failed to strike a white juror who lived a half mile from the murder scene and who worked 250 yards away and gave a similar answer to the familiarity question as did Ms. Garrett <lied about familiarity with area—false>. Hence, not one, but several, factual misrepresentations were made by the prosecution.
As for Mr. Hood, after claiming that he was exactly what the prosecution was looking for (to keep), the prosecutor gave eight reasons for why he was struck, with one reason (having a son the same age as the defendant who had been convicted of a similar crime) being suggested as the “only reason” for the strike. This emphasis on age later was replaced with a concern for Mr. Hood’s religious affiliation. Mr. Hood’s membership in the Church of Christ (and the supposed—according to the prosecutor—Church’s position opposing the death penalty) was now the chief concern and that other Church of Christ jurors had been removed for cause because of anti-death-penalty views.
Again, these “race neutral” factors sound reasonable . . . until we discover that (a) the prosecution accepted two jurors with sons about the defendant’s age; (b) Mr. Hood’s son had not committed a similar crime (stealing hubcaps at the age of 13 and five years before this trial) as the defendant (the brutal sexual assault and murder of a 79 year-old widow); (c) the prosecutor’s own notes state that the Church of Christ has no position on the death penalty; and (d) while the prosecutor claimed that three white Church of Christ potential jurors were removed for cause because of their opposition to the death penalty, the trial transcript revealed that none of these white jurors expressed anti-death penalty views and that they were removed for other reasons, whereas Mr. Hood expressed four times that he could impose the death penalty.
Both at the hearing at trial and subsequent hearings on the Batson issue, the defense was unable to convince the trial court and appellate courts of the validity of its claims. During the years following Foster’s conviction, the defense used the Georgia Open Records Acts to secure parts of the prosecutor’s file pertaining to jury selection. The file was replete with references to race, including (a) black jurors being highlighted in green on the lists; (b) all black jurors had “N” (for “no”) or “B” (for black) associated with their names; (c) on a list of “definitely NOs”—the top five “definitely NOs” were the black jurors; (d) three black jurors were listed as “B#1,” B#2,” and “B#3”; and (e) notes referring to not wanting members from a black church (i.e., “No BLACK Church”). It was the discovery of this file and the actions of the Georgia Supreme Court (denial of Certificate of Probable Cause) that opened the door for consideration by SCOTUS.
Even though the prosecutor’s actions in Foster happened almost 30 years ago, we are not dealing with echoes of the past. Today, we see that prosecutors (and other attorneys) may exercise peremptory challenges in a discriminatory manner. This practice needs to stop. Cases such as Foster have led some commentators to call for a drastic reduction in the number of peremptory challenges or their elimination entirely. Putting on hold for now a defense of the value of peremptory challenges, there is something missing in the clamoring over Batson issues. That missing piece is the role of trial judges in the process.
Role of Trial Judges
Judges play a critical role in the voir dire and jury selection process and, as a result, in guarding against discrimination-based peremptory challenges. Judges control the parameters of voir dire (its breadth, scope, and content). They decide the ultimate issue of whether a Batson violation has occurred. Trial judges are accorded great deference to their findings regarding the credibility of the attorneys who offer “race-neutral” explanations. Hernandez v. New York, 500 U. S. 352, 365 (1991). Finally, the trial judges’ power over this situation is further enhanced by the fact that judicial review of the actions of trial judges concerning Batson challenges is governed by a “clearly erroneous” standard. Snyder v. Louisiana, 552 U. S. 477 (2008). Meaning, in practical terms, their rulings in this area are rarely overturned. Trial judges really are the last line of defense (barring appellate intervention) in fulfilling the promise of Batson.
Why Are Judges Having a Problem Policing Batson?
To be sure, attorneys who practice discrimination are the root of the problem. Whether it is based on ignorance, fear, archaic notions of jury behavior, institutionalized discrimination, implicit bias, or just plain racism, attorneys are the ones who decide how to exercise their peremptory challenges. The policing function of the trial judges through their findings in Batson challenges is a key counterbalance to discrimination. However, judges face several challenges when exercising this policing function.
First, race has been shown to be a consideration in the exercise of peremptory challenges, particularly with prosecutors, as reflected in court decisions, archival data, and empirical studies. One study looking at all reported federal and state Batson challenges from 1986—1993 found that 62% of Batson challenges survived the prima facie hurdle, while approximately 18% of Batson challenges were ultimately successful. The more successful challenges in this study (resulting from unsuccessful attempts to provide race-neutral reasons) involved a Batson respondent having engaged in disparate treatment of target jurors (e.g., minority jurors rejected while white jurors accepted based on the same characteristic), insufficient voir dire (engaging in insufficient questioning to establish the asserted fact/reason but providing the rationale just the same), and no explanation being offered (e.g., denial of improper motive).
Second, when faced with having to provide reasons, particularly of the race-neutral variety, such answers come easily and rarely include race. For example, in a 2006 experimental study showing the influence of race in decisions regarding peremptory challenges, the authors found overwhelmingly that race-neutral reasons were given even when no indication was given that the reasons should be race neutral. Thus, even if you don’t know that race should not be a consideration, you either fail to recognize its influence or refuse to acknowledge it through the reasons offered. In terms of the most blatant examples of discrimination, e.g., Foster, it is not a matter of a failure to recognize any implicit race-based nature of the selection strategy, but a failure to admit to it.
Third, judges are in a difficult position. They must rule on whether the proffered race-neutral reason is truly race neutral and not just a pretext for a discriminatory challenge. This can be a difficult task, given the myriad reasons that attorneys can offer. Add to this the nature of the task judges face. They are to decide the truthfulness of the assertions by attorneys. Research has shown that laypersons and professionals alike are not very good lie detectors. In addition, research (article for purchase) further indicates that judges (as compared to attorneys and jurors) rely too heavily on the confidence exhibited by jurors when giving assurances that they can be fair, and this is likely to apply to judges’ evaluations of attorneys as well.
Fourth, judges may be concerned, overtly or subconsciously, with the label they are applying to attorneys who are found to have violated Batson. Are they labeling the offending attorney a racist? Did the attorney even know his or her actions were influenced by the race of the juror? Will the attorney be subject to ethical/legal sanctions as a result of the finding of a Batson violation? This is not a point of idle speculation. In a rare moment of candor, a state judge expressed to me at a legal conference just these concerns over the findings of a Batson violation.
Here are some ways in which trial judges (and attorneys) can help minimize discriminatory practices.
First, expand the content, scope, and usefulness of voir dire. A major reason that attorneys rely on stereotypes (which is the domain in which Batson violators traffic) is that the information gained as a result of the voir dire process is often compromised by the limitations the courts place on voir dire. As a result, attorneys may use broad generalizations or stereotypes in an attempt to predict subsequent behavior by jurors. It is important to recognize that allowing attorneys to pursue more in-depth questioning during voir dire under improved voir dire conditions serves to lessen the need for attorneys to rely on stereotypes. (See a discussion of these improvements in my book.) Not only will attorneys be able to make more informed decisions on their use of peremptory challenges, but judges will have the information they need to evaluate whether strikes are made on a truly race-neutral basis or are more likely a result of discriminatory intent. Inconsistencies and “pretextual” reasons are more likely to come to light as a result of a robust and effective voir dire process.
Second, fight the “confidence bias” when making evaluations of discriminatory intent. Don’t take at face value confident assertions of fact or the lack of discriminatory intent. Seek out information to test for inconsistencies and plausibility of the reasons given. As the Court noted in Miller-El v. Cockrell, 537 U.S. 389 (2003), “Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy” (pg. 339).
Third, look for when the attorneys’ “neutral” reasons are inconsistent with the trial record or answers given on juror questionnaires. As was the case in Foster, a number of the prosecutor’s asserted reasons were contradicted by the trial record and/or the answers found on juror questionnaires.
Fourth, look for inconsistencies in the application of reasons between the disputed juror and nondisputed jurors. Miller-El v. Dretke, 545 U.S. 231, 241 (2005). A "neutral" reason should not serve as a point of rejection for a disputed juror while not serving such a function for a nondisputed juror.
Fifth, look for differential treatment of disputed and nondisputed jurors during voir dire in terms of questioning style and content. For example, disputed jurors being questioned more or less intensely or provided with more emotionally laden content in questions as compared to nondisputed jurors can reveal “pretextual” reasons. Miller-El, 537 U.S. 389.
Sixth, look for patterns of potentially discriminatory practice. While a successful Batson challenge is appropriate for a single exercise of a peremptory challenge (Snyder, 552 U.S. 477) observing a pattern of several strikes that has the common feature of the jurors' membership in a constitutionally protected cognizable group should not be ignored.
Not only must attorneys shed their reliance on stereotypes (and the discrimination that results from this practice) but also judges need to make the tough calls and protect the jurors’ right not to be discriminated against. It is the rare case where supplementary documentary evidence, as was the case in Foster, is available to provide the damning context for the strikes employed by attorneys. However, that documentary evidence indicated that the inconsistencies found in Foster were strong clues as to the discriminatory intent underlying the prosecutor’s strikes. Trial judges will need to employ more effective voir dire methods and procedures, hone their skills in recognizing "red flags" of potential discrimination, and make the tough calls on Batson issues in order to give much needed teeth to Batson and its progeny.