Batson Backwards

As Anne Reed has been doing a series on Batson challenges at Deliberations, which I’ve followed and enjoyed greatly, it raised the ugly subject of reverse Baton challenges.  But before I advance, allow me to digress. 

It’s long been my view that any half-competent lawyer can almost always find a race-neutral reason for exercising a challenge.  That doesn’t mean your challenge is neutral.  It just means you can come up with some rational non-discriminatory reason to get rid of the potential juror.  Mind you, that gets harder after the 12th one you bumped in a row, but that’s why lawyers have fertile imaginations.

And now, back to the point of this post.  It makes complete sense to me that the prosecution should not be permitted to exercise their peremptories to keep blacks, or women, or Hispanic’s off a jury for fear that they might sympathize with a defendant.  Indeed, the Constitution expressly provides for trial by jury, and this right has been held to include a jury drawn from a defendant’s peers.  It really says so.

And so, the prosecution may not interfere with this constitutional right by bumping all the people of the same race from the jury, and deny the defendant an impartial jury by stacking the deck against him.  So far, the reasoning is unassailable.  But Batson is grounded in the Equal Protection Clause on the reasoning that improper discrimination is subject to heightened scrutiny.  In a vacuum, this sounded good as well.

But then comes reverse Batson, where the defense is now subject to the same regulation for doing the opposite of what the prosecution is doing.  The defense cannot knock off people of races deemed antagonistic to the defendant, for example. In J.E.B. v. T.B, the Court extended the concept to hold that there is a right to serve on a jury, and the defense cannot interfere with this right.  In a broader world view, there is a certain merit to this equivalent treatment.  After all, it one side can’t do it, why should the other be allowed?

But this isn’t exactly a game with balanced rules.  The right to an impartial jury is given the defendant, not the prosecution.  After all, if the prosecution loses, they don’t go to jail.  This is consistent with the notion that a trial is a protection against the power of the State, not an exercise in bilateral fairness (despite the misguided efforts to promote this view). 

So if a defendant perceives, for whatever reasons although the reasons are almost always culturally based on anticipated prejudice, that a juror of a particular race, gender or any other suspect classification will harbor a bias against him, he should be empowered to remove that juror to fulfill the promise of an impartial jury. 

And what cause does the prosecution have to complain?  Since the entire venire consists of otherwise qualified individuals, why should replacement of a bumped white woman with an hispanic man affront the state?  Is the hispanic man not as good as the white woman?

But the courts have been smart enough not to ground their reverse Batson holdings on the state’s interest.  Instead, they have based it on a citizen’s right to serve on a jury.  The concept itself is worthy of a decent laugh, given how many people will do anything to avoid jury duty.  And yet, there are some who really want to serve and are offended to be sent home.  Go figure.  It is the rights of these individuals that the Supreme Court sought to vindicate, saying that they too should be protected from prejudice.

But to compare the right of a defendant, expressly stated in the Constitution and well grounded in the logic that he has a lot more at stake than a person called for jury duty who may or may not ever sit on a jury for a hundred different reasons, is ludicrous.  While the Constitution offers protection against government action, it was never meant to protect the individual from choices made by another individual, this time a defendant.  Is the defendant on trial part of governmental action?  If I recall correctly, I’ve never had a client who actively chose to become a defendant.  And if he didn’t ask to be there, how can we attribute his involvement in the government’s criminal justice system to government action such that constitutional protections are implicated in the first place?

More importantly, this is about a balance of power between the lone individual and the vast might of the State.  Our founding fathers decided to offer a few little things to help give the individual a fighting chance in this lopsided battle, and an impartial jury was one of them.  Now that we’ve inserted the “right” of a person to serve on a jury into the mix, a right that is nowhere stated and is undercut by the government constantly when it serves the government’s ends, the balance has shifted. 

Once again, I turn to the savior of the defendant’s constitutional protections, Justice Antonin Scalia, who stated in dissent:

In order, it seems to me, not to eliminate any real denial of equal protection, but simply to pay conspicuous obeisance to the equality of the sexes, the Court imperils a practice that has been considered an essential part of fair jury trial since the dawn of the common law. The Constitution of the United States neither requires nor permits this vandalizing of our people’s traditions.

You go, Nino.

8 comments on “Batson Backwards

  1. Sarah

    But the right-of-the-juror rationale is longstanding in Batson cases, isn’t it? My recollection is that the cases holding that a defendant can challenge the race-based exclusion of a juror who does not share the defendant’s race reasoned that the defendant was asserting a claim on behalf of the stricken venire member, who was unlikely to bring the claim him-/herself. So this rationale is nothing new, is it?

  2. SHG

    You are correct, Sarah, but that was my point in noting that there are numerous explicit constitutional rights implicated in race-based exclusion by the prosecution that justify the Batson result, and the decision to use the equal protection route was the one that lent itself to the most mischief.

    Even so, the reverse Batson issue again implicates the defendant’s right versus the ersatz juror’s equal protection rights.  Even under Batson’s equal protection rationale, the competing constitutional rights of the defendant versus the juror must tip heavily in favor of the defendant.  Bear in mind that when it’s the state versus the juror, that state has no constitutional rights and hence the juror’s rights prevail. 

    So while the rationale is not new, it’s use in reverse Batson cases perverts the constitutional balance between defendant and state and defendant and juror.  While Batson would have been a good result for numerous reasons, none of them salvage reverse Batson.


  3. Christopher Donovan

    But if “jury of peers” is the only thing that tips the right-of-the-juror balance in favor of criminal defendants, how far should that go? Does a black defendant have a right to an all-black jury? (And why is that the ‘race does not exist’ crowd all of a sudden sees no problem figuring who’s what race in situations like this?) Does a white defendant have an equivalent right?

    This essentially creates a right of exclusive racial association that runs counter to the law’s command elsewhere: I cannot say that I will not hire a person of a different race for solely that reason, for instance… but I can say that I will not take as my juror a person of a different race?

    I think the difference is explainable by the fact that racial discrimination seen as benefitting minorities is perfectly acceptable, but racial discrimination seen as hurting them is not. And with whites, it’s the opposite.

  4. SHG

    Your initial sentence, and its premise, are fundamentally wrong.  A jury of peers doesn’t top the balance in favor of the defendant at all.  That’s neither it’s purpose nor effect.  It is intended to maintain balance, neither for the defendant nor the prosecution.  There is no right to include anyone on a jury because of race, but Batson says you can’t exclude them on that basis either.

Comments are closed.