The Problem With Race As Proxy

The Supreme Court will hear oral argument today in Foster v. Chatman, an egregious case of racial discrimination in jury selection that, pretty much by sheer luck, became known to Timothy Foster’s lawyers nearly 30 years after his conviction.

This one is the blatant kind. In 2006, Foster’s lawyers got lucky when — through an open-records request — they got hold of the notes prosecutors made during jury selection in the case. To their surprise, they discovered that all the names of the potential jurors who were black were highlighted and marked with the letter B.

At the top of each juror list, a key indicated that green highlight meant the potential juror was black. Separate juror questionnaires had the word “black” circled. No black jurors sat in Foster’s trial.

It’s no stretch to say that the prosecution systematically struck blacks from Foster’s jury. Arguments to the contrary don’t pass the smell test. But so what?

His lawyer before the Supreme Court, Stephen Bright, said in a brief filed with the court that this “evidence clearly establishes purposeful discrimination by the prosecution” — particularly troubling if indeed the goal was to get the all-white jury to issue a death sentence and thus teach people “in the projects” a lesson.

Very troubling. Deeply troubling. Hell, even former prosecutors agree.

In court papers filed ahead of Monday’s hearing, a group of former prosecutors urged the court to rule for Foster because “race discrimination persists in jury selection,” and insisted that the court’s prior ruling in Batson v. Kentucky remains “an important safeguard against” abuses in the jury system.

And the New York Times, never shy about concluding the obvious, agrees.

In requiring prosecutors to give a “race-neutral” reason for excluding black jurors, the court wrote that racial discrimination in jury selection “harms not only the accused whose life or liberty they are summoned to try,” but undermines “public confidence in the fairness of our system of justice.”

So the first step in the process of eradicating the harm of racial discrimination in jury selection has achieved widespread acceptance. So what?

Peremptory challenges can, when used honestly, help both sides in a trial ensure a more impartial jury. But it is still far too common for prosecutors to exploit this tool for improper purposes. The justices should be particularly vigilant for such unconstitutional behavior, especially when it is dressed in “race-neutral” garb.

The easy answer is to eliminate the mechanism by which discrimination is accomplished, peremptory challenges.  As the Times realizes (and as every criminal trial lawyer is all too aware), proffering a race-neutral explanation for the exercise of a strike is, well, easy. Some of the time it’s real. Some of the time it’s nonsense. Both sound the same.

Linda Greenhouse called for the elimination of peremptory strikes in the name of eradicating the blight of racial discrimination in jury selection. It’s a terrible idea. Even the Times’ editorial board see this. Why not eradicate measles by killing babies?

So what are the Supremes supposed to do about it?  As Cristian Farias delightfully twitted, if anybody thinks they’re going to come up with a solution, “they’re tripping.” While reversing Timothy Foster’s conviction is itself a worthwhile result, the Supremes don’t see their job as doing the right thing, but announcing rules to be applied going forward. What rule?

The Times concludes that justices should be “particularly vigilant.” Is that supposed to be a rule? The “particularly vigilant” rule?  Are we cool with judges being a little vigilant in the performance of their function otherwise?  And if they’re “particularly vigilant,” will they then possess the magic power to distinguish between legitimate explanations and bullshit excuses?

But there is another consideration that, inexplicably, continues to fly under the radar of people who are focused solely on the use of race as proxy for what is really going on inside other people’s heads.  When selecting jurors, lawyers look to whatever they can to divine whether a juror will be antagonistic toward their case.

Contrary to the misguided belief, lawyers don’t shoot for juries that will look favorably toward their client, but ones that won’t hang him before the close of the prosecution’s direct case. That’s about as good as it gets. Strikes are used to eliminate those jurors we think are going to be bad for us, and both sides do the same thing. There are no unstrikes to prevent the other side from striking someone we want; we have no way to keep a juror because we think he will be good for us.

As the mechanics of voir dire, the process by which jurors are selected, force us to make wild guesses as to what another human being is truly thinking, we’re constrained to use proxies, things like race or gender, to assume how they will react to evidence.  We assume a black juror will share the experience of being black in the community, and so will understand the defendant’s actions differently than a white juror would. But does that potential juror have a picture of Clarence Thomas over his bed? Does that potential juror blame others of his race for the broken windows in his neighborhood?

Every lawyer tries desperately to get potential jurors talking, opening up about what they think, so a far more informed decision can be made about them without resort to the simplistic “race as proxy” reaction. To the extent this happens, great. But we’re never entirely sure. Believe it or not, sometimes jurors don’t reveal their true beliefs.

As Noel Erinjeri bottom-lined it at Fault Lines:

A defendant has his best shot in front of a jury of 12 thoughtful people who aren’t dazzled by a badge and with the smarts to know when a prosecutor is substituting the volume of his voice for the weight of the evidence. People who believe, in their guts, not just as an intellectual proposition, that a defendant is innocent until proven guilty beyond a reasonable doubt. A black defendant stands a far better chance in front of twelve white people who believe in the presumption of innocence than twelve who don’t.

How can this be achieved?  By digging deeper than race.  Which brings us back to the problem of how the Supreme Court is supposed to come up with a rule to eradicate racial discrimination without impairing the ability to go beyond race to whatever runs through the minds of human beings. Sometimes, there is no good solution. This is such a time.

8 thoughts on “The Problem With Race As Proxy

  1. John Barleycorn

    Don’t forget to sniff-un and shake um and when it’s time to preserve the errors, be bold. Or get lucky thirty years after the fact.

    Well, at least this guy doesn’t wear a tan suit when he knows the cameras are gonna be rolling but you and him could both stand to learn a thing or two about props (and I aint talking about wrist accessories).

    For instance a horned viking helmet could have been used to accentuate the obvious that isnt so obvious a time or two when this guy gives his two cents about his two percent.

    How the heck are you gonna look like an original ganster, when wearing a pastel tie, if you forget to bring your viking helmet?

    P.S. You and thus guy could go places as a video podcast team if you hired a few comedy writers and drank PBR’s from a styrofoam styrofoam cooler, with county sherrifs bumper stickers pkastered on it, while recording in various highway rest stops across the nation along stretches of interstate that are notorious for asset forfeiture.

    1. SHG Post author

      Viking helmets were big in my fraternity in college, but I was never comfortable wearing one. I preferred my real horns.

      1. John Barleycorn

        There you have it! Bring that guy from Nebraska along and have him ride past in the background of each podcast on a black horse dressed up as a shaman.

        If he can pull off the “voodo grin” in rehearsals and get comfortable with the dreadlocks extensions that will make his chrome top look like a super nova the three of you could educate the masses!

        1. John Barleycorn

          On third thought you are gonna need a prosecutor to play some sort of roll too. I am thinking he/she could be the leader of a band. Preferably a horn band.

          So here’s the deal I know prosecutors read your front pages but I am unaware that any of them appear In your back pages to point at your horns and giggle or otherwise attempt to adjust your perception conduits.

          So if any prosecutor steps forth (anom is cool but they have to vet with you) and contributes at lest one back page comment a month, I will give them a free subscription to popular mechanics for a year and
          never attempt to weave in an opera refrence ever again.

          Now, I will go mind my own business and stop trying to start up a justice rock band in your back yard even though the country could use one.

          The sounds of a new justice genre are pirkulating, tell me it isn’t so…

          A new Fab Four with you and Teaxas on the styrofoam cooler, a decent band leader from the prosecution, and a shaman judge on a black horse with a weird grin might be the first real deal breakout sound since that chairman of the Senate Judiciary Comimitee had his first kiss.

          And it’s an election cycle. What more could you ask for?

          1. SHG Post author

            There’s a few prosecutors here. They aren’t usually thrilled with my hugs, but they comment once in a while to let me know I’m WRONG!!!

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