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.

It looks like today is Mother’s Day here at Simple Justice.  A comment left yesterday reminded me of the letters and telephone calls I have gotten over the years from a parent or spouse telling me about a loved one whose life or family was ruined at the hands of the system.  They seek someone to help and have no idea where to turn.  They refuse to give up, and keep hoping that the next call or letter will bring a different answer.

Every criminal defense lawyer of any repute gets these calls and letter.  I’ve gotten them from some fairly well known defendants.  I remember receiving a letter from Marty Tankleff, who has since become a cause celebre.  Many of these parents and spouses pray that someone, whether a news person or lawyer, will take an interest in their plight and elevate it to a cause celebre.  It happens.  But it happens rarely.  There are just too many sad stories.

As a lawyer, I try to help those who come to me.  But what I can offer is seldom enough.  Almost universally, they have no money to retain a lawyer, and thus depend on the kindness of strangers.  If they once had funds, they are long since depleted.  They have been reduced to beggars, but are happy to put their dignity aside for a chance at justice.

They have already been through the system.  These are individuals who have gone through the various normal stages of criminal proceedings, only to come out the other end without solace.  They have lost.  They have lost again. And again.  The reached the end of the road, but “justice”, by which I mean the outcome they desire, has never been achieved.  Their heads cannot grasp it.  It is so wrong, to the bottom of their souls, that they cannot accept it.  There MUST be something else they can do, for no benevolent god would allow this to happen.

When you speak with these moms and dads, their voices quiver.  Often, the begin to cry.  They use a lot of legal jargon in their explanation of their loved one’s fate, but show a limited understanding at best.  They try very hard to sell their hope and despair.  Sometimes, their pleas are so far off the mark that you want to shake them and tell them that it is NOT the most horrible thing in the world that junior, who almost killed some innocent child, has suffered the unbearable harshness of being convicted by the testimony his rat-bastard lying best friend, who actually told the truth this time.

But other times, the stories are indeed horrible.  They run the gamut from mistaken IDs, junk science, concealed evidence, lying cops, hanging judges.  Somehow the system failed them time after time, just like the system fails so many others.  Frequently, they hired a lawyer to represent their loved one, but didn’t have the money to hire a good lawyer and ended up with some low-rent sweet-talking lawyer who sucked them dry and then pled’em out. 

These are people who were, before the day that their baby got busted, law-abiding citizens.  They supported the cops and the system.  They were vested in the American way.  They believed the platitudes and the TV commercials that told them that our system was the best, something worth fighting for.  And they did, often giving up their sons and daughters to serve their country.  And they were proud to do so.

But the private criminal defense bar cannot provide the service that this surprising large group of loving parents and spouses require.  We may be able, and willing, to help one or two from time to time, but our rent still comes due and our children want to eat too.  Every day.  And we practice law for a living.  We want to be Don Quixote, but are not always up to the task.

And so, to Mother Carolyn, my most recent commenter, I offer the following answers:

1.  The system is not fair.  It works sometimes.  It fails others.  It works more often than it fails, but that is of little comfort if you are in the minority.

2.  Don’t give up.  I don’t know if you will achieve a meaningful end, but voices like yours are all we have to challenge a system that is far less than perfect than most people would believe.  Most people don’t realize it now, but if you stop speaking, then there will be no one to remind us.

3.  Bring the fight to your government and your elected officials.  They are vested in the system, as it pays their salaries and brings them personal prestige.  They need to believe that they are on the side of truth and justice to bolster their lagging self-esteem.  Let them know that they are not doing a good job, and that you hold them responsible for their failure to stand up for justice.  Many will laugh at you the minute you walk out the door, but maybe a couple will think about what you had to say.  It’s a couple more than we have now.

4.  The system can be better.  It has always had the potential to be better.  But it swings like a pendulum to reflect the mood of the public and the transitory fears that public voices love to use to keep the natives in line.  When the public demanded justice, the tone changed.  But the public rarely demands justice.  The public is far more concerned for their personal safety and welfare.  The sad truth is that too few human beings care about anything other than themselves.  At least today.  Let us hope that this will change.

Nicole Black at Sui Generis brings us a great video of a police encounter out of Ohio.  For so many years, stories about how police used their shield for their own purposes have abounded, but were easily dismissed because it was the cops word against the perps, and we all know painfully well how that story goes.

But in a world blanketed in video cameras, we are now able to view events for ourselves.  While these videos hardly prove the cops wrong every time, they do show us enough to bring a better understanding to generations of Law and Order watchers.

A few things stand out to me in this video, that the commentary fails to address.  First, the cop involved was apparently the one who, moments before, paid for his meal with what he insists was a $20.  In other words, he is not there as a detached agent of law enforcement, but as a man with a gun and shield who thinks he was beat out of $10. 

Whether rightly or wrongly, we all feel that we have been subject to some wrong from time to time.  What distinguishes our situations from this one is that we don’t have the outward signs of lawful authority to command others to do as we say upon pain of arrest or force.  We give cops guns and shields to do their job, not to vindicate whatever personal issues may arise during the course of the day.  Yet, according to the video commentary, this cop’s conduct was determined to be proper.

Moreover, the manager of the fast food joint, obviously upon the complaint of the cop, checked the cash register and found no twenties there at all.  This, of course, precluded the possibility that the cop was correct and the young girl was wrong.  For most of us, that would have been the end of the discussion.  We might yell and demand our money, but upon the manager’s reasoned conclusion, the issue was over.

Not when the person making the complaint is a cop.  Note that within seconds, the cop was back behind the counter where no mere customer may go.  Can you imagine if you and I tried that?  We’d be tackled, thrown to the floor and the (ahem) cops would be called to separate us from the rest of the free world.  Not so when the complaining party is in uniform.

This speaks volumes about the phenomenon of “submission to the shield.”  Tough guys crumble in the face of a cop.  Here we have a fast food manager as the first line of defense.  What’s he going to do to keep this irate cop from coming behind his counter?  Do you think he’s ready to put his life on the line here?

Wait, you say.  Life on the line is a “little overwrought?”  Perhaps, but who really knows how things develop when you say no to the police.  Is it possible that a firm “no” will do the trick?  Yes, it is.  But it’s also possible that it will result in further infuriating the cop, causing him to escalate his use of force from verbal demands to physical violence.  Pepper spray is a start.  But a nice baton to the head or worse is hardly out of the question.  If you are working at the local fast food joint, do you really want to find out?

But the most striking aspect of this video was how ordinary the police officer seemed.  He didn’t project a tone of some animal, or some cowboy rogue cop as TV likes to show when they portray a cop gone bad.  He seemed utterly ordinary.  But despite his regular guy demeanor, he lost control.  He abused his authority and attacked a child.  All to serve his own, personal ends.  All over his (mistaken) belief that she shorted him $10.  Can you imagine what might have happened if it was a $50?

All the while, the young girl working the cash register held firm to the belief that her mother would save her.  To me, as a parent, this was painful to hear.  We believe that we can protect our children from bad things.  We do so because we want so badly to believe it’s true.  What if this girl was your child, and you were confronted with the harsh reality that as soon as they go out into the world, even doing something as positive as working, we were putting them at risk of physical injury? 

Should we lock them away in the house?  Of course not, but we cannot help but be left with a sense of our impotence at protecting our children from the many sources of harm that our world has to offer.  But of all the threats that we fear might cause harm to our children, who would have thought that the anger of an armed and irate police officer would be the one that would happen that day? 

The fact that the police determined this officer’s conduct to be proper should strike fear in the heart of every law-abiding citizen and every parent. 

UPDATE:  Simple Justice now officially lives, according to the ABA website (with the help of my friends).  Now, if all of you could just go there and click on Simple Justice once or twice (or as many more times as you would like), it would be greatly appreciated.  This isn’t cheating.  It’s affirmative action. 

The ABA has launched its new website!  This is almost as exciting as the day Avvo came out, but without the numbers.

Being primarily concerned with the welfare of humanity, I immediately went to see if Simple Justice was listed in the blawg directory.  135 Criminal Law Blawgs!  Woo Hoo!  Scroll, scroll, next page, next page.  Nothing.  Zip. Nada, zero.

Simple Justice isn’t there.  A lot of others are there.  But not Simple Justice.  So how did they list all those other blawgs and not me?  Well that can make you feel a bit inconsequential.  They’ve got Eric’s Blawg, and Andrew’s Blawg and Nicole’s.  They’ve got Grits.  They’ve got Gideon’s.  Maybe they misspelled it?  Nope.

But there’s a button on the site to submit a new blawg.  Well, here goes nothing. Ping.  “Error: You are not authorized…”  What, even their computer doesn’t like me?  Oh my god, this is bad.  This is worse than just being ignored.  Now I’m being shunned.  And blackballed.  They want nothing to do with me.  The shame.

So should any of you feel compelled to use the ABA’s new website in search of a blawg or a topic, and you just happen to notice that your favorite blawg isn’t there, well…don’t make me beg.  Ignored again.  Bummer.

It disturbs me to write this, but I am beginning to understand selfishness.  In the past, I commuted to my office in Manhattan daily on the Long Island Rail Road.  I drove a car perhaps 3000 miles per year, and that was mostly on Sundays, in nice weather, in my 1964 Austin Healey.  It was a sufficiently unusual car that people gave me a relatively wide berth.  I was a courteous driver.

Lately, I’ve been driving much more.  And in a real car instead of my little toy.  And my eyes have been opened.  I believe that this may be a Long Island phenomenon, so if it doesn’t pertain to wherever you are, I understand.  And please don’t tell me that what follows is not your experience.  I pray that my experience is not universal, but don’t rub my nose in it.

People drive offensively.  It’s as if they aim at you, daring you to hit them.  Running stop signs is routine.  By women in SUVs with a gaggle of children in the car.  Of the most remarkable things I’ve seen lately, cars making K-turns on 55 mph roads with a ton of traffic driving at 70 mph, totally oblivious to the mayhem they are about to cause.  If you don’t drive right on the tail of the car in front of you, some truck will squeeze in leaving a hair between it and you. 

But mostly, I’ve learned that if you aren’t dangerously and inappropriately aggressive, you are left without options.  I sit there at a light, after it’s turned green, because I know that at least 5 more cars will run it.  If I don’t make a right on red into a steady stream of traffic, the car behind me will honk incessantly, creep up until our bumpers touch, and start screaming curses. 

I must be wrong.  I must be.  Because everyone else cannot be wrong.  And everyone else disagrees.  No one lets anyone go first anymore.  If there’s the slightest hesitation, you are guaranteed that someone else will bulldoze their way through.  I used to think that they must all be in a bigger rush than me, because I wasn’t in enough of a rush to risk my life or anyone else’s.  But I’ve since learned that this has nothing to do with it.  They have no place to go.  They are just too important to wait.  That’s it.

Is it kids?  Yes.  And women?  Yes.  Men too?  Yes.  Rich people? Sure.  Poor people? You betcha.  Old timers?  Absolutely.  It defies classification.  It’s everyone.  And most have a lot to say, as well, since they are on their cellphones.

When I last appeared in a traffic court, I wondered to myself, “How is it possible that these people got caught?”  What could they have possibly done that is different than what everyone else is doing?”  You see, if the whole world breaks a law, then it can’t be wrong.  Now it’s obvious that they know more about it than I do, since I am firmly convinced that I am totally out of the loop.  But cops, and traffic court judges, surely they know better.  So what must a person do that is so heinous that in a place where no one adheres to the law, they stood out?

I got my answer that day in traffic court.  A cop I knew pretty well was there, awaiting whatever it is that cops await when they stand around at traffic court (I’m tempted here to make a joke about donuts, but that would reflect a certain prejudice about police and I am above such things).  I asked the cop, what happened that you actually felt the need to issue a summons to somebody? 

The cop pointed toward a beautiful woman, maybe early 20s (as if I can tell anymore).  A pretty face, in a blond-haired, blue-eyed sort of way.  But a body worthy of Baywatch, if you know what I mean.  “So what did she do?”  I inquired.  With a sparkle in his eye, he answered, “nothing.  I just wanted to get her name.”  Selfishness.

The Feerick Commission was born of the public’s lack of confidence in judicial elections.  Having had the dubious honor of giving testimony before it on behalf of the New York State Association of Criminal Defense Lawyers (a name that just slips off the tongue), and having listened to the glimmers of brilliance that shown bright between the endless hours of sheer and utter crap spouted by bar leaders across New York, I was fairly impressed that it arrived a few reforms that had the potential to actually help.

And so what became of it?  Well, the Legislature ignored the Commission Report completely, since there wasn’t a single vote to be milked out of it.  But Chief Judge Judy Kaye picked up the ball and ran with it.  Of course, she’s a bit old and couldn’t run too far. 

Kudos to Newsday columnist Rick Brand who, for reasons otherwise unexplainable, happened to remember that the commission once existed and actually decided to remind people what a miserable botch this reform turned out to be.  In NY judicial election panels fall short of plan, via Judicial Reports, Brand picks apart the Kaye revision of the Feerick reforms.

Feerick’s commission urged that “no candidate may be found qualified for judicial office” if they lacked “one or more of the criteria or if the candidate has been found by the court to have violated the standards of professional conduct, or is presently subject to a court proceeding involving professional misconduct or has been found guilty of a misdemeanor or a more serious crime.”

Kaye’s order totally dropped such limits.

So, the good news is we now have judicial screening committees in each judicial department, and Judge Kaye actually did something when no one else in New York government even bothered to read the report.  What’s the bad news?

First, the scope of the screening is limited to the bare bones.  Instead of looking for the best qualified, they do not better than set the low bar for qualifications.  And that bar is indeed set low.  But that’s not the worst of it.
Candidates for judicial office are not required to go before the screening committees.  So let’s say you have some nasty ugly skeleton in your closet that may prevent you from passing muster under the absolute lowest possible criteria.  What to do?  Avoid screening at all costs and put your face on telephone poles!  Now there’s a confidence booster.  But no, we’re not done yet.

What if some candidate for the secret society of black robed individuals is so lacking in sound judgment that, despite the fact that they can’t reach the lowest rung of the ladder, they still apply.  Well, the good news (for them) is that the whole process is secret.  Not only are the screening committees forbidden from mention who has chosen to go and not go before it, but

“There shall be no communication to the public regarding those candidates who did not participate in the commission’s evaluation process or who are not found qualified.”

There’s the bottom line.  As Rick Brand says, “a real confidence booster.”  While this would seem to reduce the screening committees to just below joke status, you’ve got to appreciate how and why such rules are imposed.  This secrecy reflects a deep concern by the sitting judiciary (not to mention the political party leaders across the State), that these committees might find a sitting judge unqualified.  Can you imagine the embarrassment that would cause a whole bunch of very important public officials? 

One of the positions taken before the Feerick Commission, by a sitting judge who shall remain nameless, was the fear that some big shot yahoos might be put on a screening committee who would stick it to some sitting judge, whether for good reason like a gross lack of judicial temperament, sheer lack of intelligence or (in one instance that I painfully remember from a trial) the inability to speak English, or a bad reason like payback for some unpleasant experience on a case.  The judge would be put in a position where the canons precluded response or reaction, leaving the judge a sitting duck and a career in potential shambles.

But this defensive posture by the sitting bench is both cynical and, frankly, a bit of a stretch.  These are committees, so one angry man isn’t going to be in a position to hang his personal enemy out to dry.  And most people who are appointed to these types of committees are more inclined to bend over backwards to offend no one.  After all, people aren’t appointed to committees because they are bright, hard-working and forthright.  They get there because they have managed to avoid offending anyone along the way.  It’s like doing an interview with Larry King.  There’s no better way to minimize the potential for an unpleasant question.

But one thing is for sure.  Public confidence in judicial elections has now been addressed, and we need not waste any more time thinking about that little problem.

I’ve been a big fan of discovery channel for some time, but now there’s a new reason to watch.  Starting August 13, a new series will begin called Guilty or Innocent?  The description of the series is

No matter how precise the U.S. legal system is, verdicts often rely on circumstantial evidence or “reasonable doubt.” Prosecutors and defense attorneys may plead their case to the best of their abilities and jurors may use their keenest judgment in formulating a verdict, but it remains an imperfect system. Guilty or Innocent? presents a breakthrough series that looks at real-life criminal investigations in which the public still questions a criminal’s guilt or innocence. From O.J. Simpson to Michael Jackson, for many, the question lingers: are they Guilty or Innocent?