Race Neutral Reasons When Nothing Is Race Neutral

Andrew Fleischman is such a killjoy.  Deeply passionate people are kvelling over the Supreme Court’s 7-1 opinion in Foster v. Chatman, where the Court held that Georgia prosecutors exercised peremptory strikes to remove all blacks from the jury.

Among other tactics, the prosecutors had highlighted the name of every prospective juror who was black and marked it with a capital B, with an explanation at the top of the juror rolls indicating that the letter signaled the juror’s race.

Roberts took pains to parse all this evidence and noted that it did not comport withBatson v. Kentucky, a 1986 case that established the test defendants must use when challenging prosecutors’ racial motivations during jury selection.

“Despite questions about the background of particular notes, we cannot accept the State’s invitation to blind ourselves to their existence,” Roberts wrote, adding that circumstantial evidence about the trial in question must be subject to a “sensitive inquiry.”

Fleischman hates racism. So why is this killjoy not doing his happy dance? Because the win in Foster breaks no ground, changes no rule, offers no guidance.  The happy people like the outcome. The killjoys, like Fleischman, suck the joy (hence the name) out of the win. The reason is that it tells prosecutors to stop putting a “capital B” next to the names of the jurors they plan to strike, so as not to make a hard record of their racism, and then they’re home free.

There is, perhaps, a message sent to trial judges, to take a much harder look at why the prosecution removed all the blacks from the jury, but the duty of Batson is to seek a race neutral reason for the strike.  Even a lousy reason can be race neutral. There is no duty to have a good reason to strike. A weird feelz, “I didn’t like the way she looked at me,” is good enough. Why? Because that’s the whole point of peremptory challenges, to remove someone from a jury, despite the absence of a challenge for cause, when they just don’t feel right.

Looking at Foster through the lens of the day, this might seem worse than nonsensical, but impossible. Racism is systemic. Racism is pervasive. Everything is racist. And there is a deeply passionate, jargon-filled explanation to support the view, which makes perfect sense if you squint and accept Chaos Theory. Except this rationalization may serve well on doctoral dissertations and twitter rants, but not law.

The point was driven home in Thurgood Marshall’s* dissent in United States v. Sokolow, as noted by another mean, old lawyer, Jeff Gamso, in the context of how excuses work when it comes to a cop explaining why someone fits the profile of a drug courier.

Compare, e. g.,United States v. Moore (suspect was first to deplane) with United States v. Mendenhall (last to deplane) with United States v. Buenaventura-Ariza (deplaned from middle); United States v. Sullivan (one-way tickets) with United States v. Craemer (round-trip tickets) with United States v. McCaleb (nonstop flight) with United States v. Sokolow (case below)(changed planes); Craemer (no luggage), with United States v. Sanford (gym bag) with Sullivan (new suitcases); United States v. Smith (traveling alone), with United States v. Fry (traveling with companion); United States v. Andrews (acted nervously) with United States v. Himmelwright (acted too calmly).

For those who are dot-connecting-impaired, the message is you can come up with a credible explanation for pretty much anything if you put in a tiny bit of effort and are inclined to not think very critically.

So when a prosecutor decides to strike a black person from the jury, his options are to admit his racism or blame their shoes, or hair, or smirk, or anything other than race. Fleischman, the killjoy, offers the basic colloquy.

Defense Counsel: “Your Honor, the State has used literally all of its strikes on black jurors, and now only white jurors remain on the panel.”

Judge: “Alright, prosecutor, I need to hear your racially neutral reason for using all of your strikes on black jurors.”

Prosecutor: Sure thing, Your Honor. Well, one of the jurors had unkempt hair. Another did not appear to be listening closely. A third had his shoelaces untied. The fourth one gave me a bad feeling. And the rest of them I struck because they raised their hands when I asked if anyone felt that there was still racism in our justice system.

Defense Counsel: Your Honor, that can’t be right. Several whites on the panel also raised their hands to the racism question.

Judge:  I hereby find that the prosecutor’s racism is not obvious enough to be noticed by a higher court. We will proceed.

Despite his youthful snark, that pretty much sums it up. And there is nothing in the Foster decision that changes this calculus.  Does that mean nothing can be done?  Not exactly, as Cristian Farias reports on Stephen Bright’s reaction to his win at SCOTUS.

Stephen Bright, the noted death penalty lawyer who represented Foster before the Supreme Court, said in a statement that the only way to prevent discrimination in jury selection was by reducing or eliminating altogether a lawyer’s chances to exclude jurors for any reason.

“Jury strikes motivated by race cannot be tolerated,” he said. “The exclusion of black citizens from jury service results in juries that do not represent their communities and undermines the credibility and legitimacy of the criminal justice system.”

A moving argument, for sure, as Bright offered in a respite from his speech to Yale Law School grads, where he told them to fight racism. Because Yale.  But while his contention may grab some for whom the crisis of racism is the predominant concern about jury service, that would mean the defense also loses its ability to strike that perfectly fair and reasonable juror with the swastika tattooed on his forehead, “a youthful indiscretion he explains.”

That the Roberts Court reversed Foster is great, not because it deprived black jurors of their right to be bored for days on end (as Batson held, giving way to the insanely misguided “reverse Batson” problem) but because it entitled a defendant to a jury of his peers (as Batson did not hold, because it would have opened the door to the creation of a right that could have had disastrous consequences, a fair trial plus oodles of challenges to the constituency of the jury).

But was this a win in the battle against racism in jury selection? At best, to the extent that judges shouldn’t buy the shoe argument without a follow-up question or two. Beyond that, everything is a good reason to strike a juror, as long as the prosecutor can come up with an excuse that doesn’t involve a capital B.

*After Marshall’s death, his seat on the Supreme Court could have gone to someone who shared his experience and judicial perspective. Instead, it went to someone who shared his skin color, Clarence Thomas.

7 thoughts on “Race Neutral Reasons When Nothing Is Race Neutral

  1. Richard G. Kopf


    In criminal cases, why not take peremptory challenges away from the government only? It is not a question of fairness to the government; the government does not have the same need for peremptory challenges as the defense.

    After all, the government through the judiciary initially controls the selection of potential jurors by whatever jury summons method it elects to use. One of the strong theoretical reasons for giving peremptory challenges to the defendant at the bar is to ensure that the government is not selecting only the King’s friends to sit in judgment. Since the government lacks that worry, it doesn’t have the same need for peremptory challenges as does the defense.

    All the best.


    PS Relatedly, remember Scalia’s illusion to striking only ugly jurors. Batson is a fraud, for among other reasons, ’cause far too few beautiful people make it on to juries due to far too many ugly lawyers/defendants.

    1. SHG Post author

      As I learned from Andrew, in Blackstone’s time, that was the rule, a measure of mercy from the sovereign to the accused, that only the accused had peremptories as the sovereign had no need (nor excuse) for them. I’m all for it. Now if we can only convince Congress, state leges and the public that there is no fairness in parity for the government, we’re golden.

    2. Robert Beckman


      In what game where one side forces another to play, and chooses the time of the game, the rules under which it plays, and controls the referee, ever wanted balance?

      It’s not that such a good thing can’t happen (like me winning the lottery), but that it won’t happen (like me winning the lottery), because I understand the incentives in the game for each player (which is why I don’t play the lottery).

    3. John Barleycorn

      Rule 24 is long overdue for some tweaking.

      (1) Capital Case. Each side has 20 peremptory challenges when the government seeks the death penalty.

      (2) Other Felony Case. The government has 6 peremptory challenges and the defendant or defendants jointly have 10 peremptory challenges when the defendant is charged with a crime punishable by imprisonment of more than one year.

      (3) Misdemeanor Case. Each side has 3 peremptory challenges when the defendant is charged with a crime punishable by fine, imprisonment of one year or less, or both.

      P.S. You would pretty cool on the cover of Vanity Fair at sunrise, atop the second rail of a horse corral overlooking two dozen mustangs with your Chevy S10 in the background Judge and the cut away photos of you in your chambers within the article are destined to change judical fashion forever.

      You best get to practicing your roping strategy for the inurgral post on the subject.

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