The Supreme Court is hearing argument today on Snyder v. Louisiana, another case where a prosecutor struck all the black jurors in a death penalty trial. Batson v. Kentucky says the prosecutor needed racially neutral reasons for rejecting these jurors, and the Court will decide whether the purported reasons are good enough, especially after the prosecutor invoked the O.J. Simpson case in closing argument after having promised he would not do so.
There's a larger question looming, though: whether peremptory strikes will survive at all. "I believe it necessary to reconsider Batson's test and the peremptory challenge system as a whole," said Justice Breyer in his 2005 Miller-El v. Dretke concurrence. In Rice v. Collins in January 2006 he concurred again, repeating that sentence, this time joined by Justice Souter. It seems unlikely that three more justices have come to this view in the almost-two years since Rice, but the issue isn't going away.
"The most famous murder case, and all of you have heard about it"
Whatever you think of peremptory challenges in general, the Snyder case makes them look pretty bad. Scotuswiki's terrific essay on the case explains what happened:
After Snyder had been charged with murder, the prosecutor, before the trial began, made a number of public comments comparing the case to the O.J. Simpson case, in which the former pro athlete was charged with murdering his wife and a friend of hers; Simpson was acquitted. Snyder’s defense lawyer filed a motion to bar such comparisons in future comments by the prosecutor, and was turned down, but the prosecutor said he would not mention the Simpson case during the trial itself – a vow he reportedly broke.
In the jury selection process, there were nine blacks in a pool of 85 eligible potential jurors. The state removed four for stated causes, and the remaining five by peremptory challenge – with the defense objecting to some of those strikes on Batson grounds. One of the results: an all-white jury.
The O.J. Simpson case was not mentioned by the prosecutor during the guilt phase. In closing argument during the death-sentencing phase, the prosecutor said this case “made me think of something. Made me think of another case, the most famous murder case in the last, in probably recorded history, that all of you are aware of... " At that point, the defense objected, unsuccessfully. The prosecutor went on: “The most famous murder case, and all of you have heard about it, happened in California, very, very, very similar to this case. The perpetrator in that case claimed that he was going to kill himself as he drove in a Ford Bronco and kept the police off of him, and you know what, he got away with it.” The jury returned with a sentence of death.
Use it well or lose it
This isn't just about criminal trials of black defendants, though. If trial lawyers ever do lose the right to strike jurors without giving a reason, the stereotypes and errors that make up a lot of the "common wisdom" about jury selection may have to share the blame with prosecutorial racism. Justice Breyer collected citations in his Miller-El concurrence:
[T]he use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before. See, e.g., Post, A Loaded Box of Stereotypes: Despite 'Batson,' Race, Gender Play Big Roles in Jury Selection., Nat. L. J., Apr. 25, 2005, pp. 1, 18 (discussing common reliance on race and gender in jury selection). For example, one jury-selection guide counsels attorneys to perform a "demographic analysis" that assigns numerical points to characteristics such as age, occupation, and marital status--in addition to race as well as gender. See V. Starr & A. McCormick, Jury Selection 193-200 (3d ed. 2001). Thus, in a hypothetical dispute between a white landlord and an African-American tenant, the authors suggest awarding two points to an African-American venire member while subtracting one point from her white counterpart. Id., at 197-199.
For example, a bar journal article counsels lawyers to "rate" potential jurors "demographically (age, gender, marital status, etc.) and mark who would be under stereotypical circumstances [their] natural enemies and allies." Drake, The Art of Litigating: Deselecting Jurors Like the Pros, 34 Md. Bar J. 18, 22 (Mar.-Apr. 2001) (emphasis in original).
For example, materials from a legal convention, while noting that "nationality" is less important than "once was thought," and emphasizing that "the answers a prospective juror gives to questions are much more valuable," still point out that "[s]tereotypically" those of "Italian, French, and Spanish" origin "are thought to be pro-plaintiff as well as other minorities, such as Mexican and Jewish[;] [p]ersons of German, Scandinavian, Swedish, Finnish, Dutch, Nordic, British, Scottish, Oriental, and Russian origin are thought to be better for the defense"; African-Americans "have always been considered good for the plaintiff," and "[m]ore politically conservative minorities will be more likely to lean toward defendants." Blue, Mirroring, Proxemics, Nonverbal Communication and Other Psychological Tools, Advocacy Track--Psychology of Trial, Association of Trial Lawyers of America Annual Convention Reference Materials, 1 Ann. 2001 ATLA-CLE 153, available at WESTLAW, ATLA-CLE database (June 8, 2005).
For example, a trial consulting firm advertises a new jury-selection technology: "Whether you are trying a civil case or a criminal case, SmartJURY™ has likely determined the exact demographics (age, race, gender, education, occupation, marital status, number of children, religion, and income) of the type of jurors you should select and the type you should strike." SmartJURY Product Information, http://www.cts-america.com/smartjury_pi.asp (as visited June 8, 2005, and available in Clerk of Court's case file).
"Only weakly and inconsistently related"
"The 'scientific' use of peremptory challenges," Justice Breyer concluded, "may also contribute to public cynicism about the fairness of the jury system and its role in American government."
It may and often does, and the sad part is that broad demographic stereotyping of jurors is almost always factually mistaken. Despite half a century of assiduous research into juror demographics, "juror demographic characteristics have been only weakly and inconsistently related to juror verdict preferences," say Dennis Devine and the other authors of "Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups," a comprehensive literature review in the March 2000 issue of Psychology, Public Policy, and Law. The sole exception is the simple fact at issue in Batson and Snyder: "jury demographic factors interact with defendant characteristics to produce a bias in favor of defendants who are similar to the jury in some salient respect." Jurors' experiences and attitudes are highly relevant to trial lawyers, but tossing jurors into demographic categories alone sheds little light on those.
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Notes:
- Among the best resources on Snyder v. Louisiana are Scotuswiki, an amazing new resource; the amicus brief for the Constitution Project at Wilmer Hale's web site; the ABA's preview; the Los Angeles Times article pointed to in Sentencing Law and Policy Blog; yesterday's USA Today article; and How Appealing's link to the Christian Science Monitor. More certainly will be said.
- Prior discussion on the peremptory strike on this blog is, or is linked to, here.
Updates:
- ScotusBlog recap of oral arguments.
- Transcript of oral arguments, also via ScotusBlog.
(Photo by dbking at http://www.flickr.com/photos/bootbearwdc/20109566/; license details there.)
