When Linda Greenhouse proposed that we rid jury selection of peremptory challenges to eliminate the insidious effects of racial discrimination, my response was that they’ll have to pry peremptories out of my cold, dead fingers. Adam Liptak has picked up on the issue, and offers a conflicted vision.
Jeff Adachi, San Francisco’s elected public defender, said peremptory challenges promote fairness.
“You’re going to remove people who are biased against your client,” he said, “and the district attorney is going to remove jurors who are biased against police officers or the government.”
Abbe Smith, a law professor at Georgetown, would go further.
“Simply put,” she wrote last year in The Georgetown Journal of Legal Ethics, “prosecutors have abused the privilege of exercising peremptory challenges and should lose it.”
Now if only prosecutors lost peremptories, I wouldn’t necessarily take issue, as that would be great for the defense. But anyone who thinks peremptories for me but not for thee would ever happen is batshit crazy. Plus, there are legitimate reasons why prosecutors should have peremptories for the purpose of picking a jury that is viable for conviction of bad dudes who do really horrible things. Let’s not forget, all defendants are not as innocent and wonderful as the ones I’ve been blessed to represent. /s.
In the name of ending discrimination, it’s really not all that hard to see legislators reacting, “well, if peremptories are evil, let’s get rid of them, like the “experts” are demanding. Problem solved.” On the other hand, Jeff Adachi nailed a subtle but critical point, that much as we might like to pick a jury favorable to our side, what we really hope to accomplish is to pick a jury that isn’t biased against us.
In other words, the best we can reasonably expect is neutral. A jury that favors our side is pie in the sky.
What explains the difference in perspective? The experience in the trench of actually picking juries.
There’s a great Star Trek episode, The Squire of Gothos,* where an alien watches Earth from his planet. He prepared a feast that looks spectacular, but upon chowing down, Spock and McCoy engage in this witty repartee.
MCCOY: You should taste his food. Straw would taste better than his meat, and water a hundred times better than his brandy. Nothing has any taste at all.
SPOCK: It may be unappetizing, Doctor, but it is very logical.
MCCOY: There’s that magic word again. Does your logic find this fascinating, Mister Spock?
SPOCK: Fascinating is a word I use for the unexpected. In this case, I should think interesting would suffice.
You see, while the guy can see food from a distance, he can’t taste it, so he may know what it looks like but not its flavor. This analogy always comes to mind when someone’s “expertise” comes from watching from a distance rather than doing.
I raised my problem in a twit at Liptak, Stop asking lawprofs to explain shit they know nothing about. The conduct of voir dire isn’t of merely academic interest to trial lawyers. It’s real. Our clients get acquitted or convicted based on what juries do, and we don’t need these Squires of Gothos telling us how something tastes when they’ve never tasted it.
Some lawprofs got the point. Others got their panties in a twist.
— David Ziff (@djsziff) August 16, 2015
Putting aside that Ziff misrepresents what I said, words are better spent dealing with the big issue than picking at the scab of academic butthurt. You’re free to say whatever you like about racism in voir dire, provided you don’t represent yourself to have any more knowledge than anyone else who has never actually tasted voir dire. When Liptak calls for comment, tell him that you have strong and deeply held opinions that are no more real than my views on quantum physics.
Yes, actual experience matters. I know, that hurts your scholarly feelings, because when you read all about stuff like jury selection and racism, it’s almost the same as being right there in the well, having to actually pick one person over another to sit in judgment of your client. Almost.
It’s true that this puts a damper on the ability of academics to do what they most desire in the world, see their name in the New York Times next to the word “expert” or “scholar,” but you’re playing with fire. My fire. Other trial lawyers’ fire. People’s lives. And your fragile feelings aren’t worth fucking up the only tool we have to try to get rid of the folks who are drooling to hang the defendant.
You disagree? Who cares. You don’t get a vote. Most academics don’t even know how the mechanics happen, assuming that jury selection goes on as long as necessary so that lawyers can make thoughtful inquiry of potential juror after juror, probing their innermost thoughts and, if artful enough, bringing forth their hidden prejudices.
In federal court, a jury is picked in a few hours. The judge does 80% of the voir dire (asking such critical questions as, “can you be fair?”), then turns it over to the lawyers to question the panel in, say, a half hour tops. That’s twelve potential jurors, plus four alternates, in a half hour. Do the math. I’ll do it for you: that’s less than two minutes per person.
I’ve long called voir dire voodoo, as we base our decision to exercise peremptories on gut instinct and gross stereotype. Poor reasons indeed, and certainly prone to racial discrimination both ways. But when you catch that guy in seat 7 giving the defendant the eye, and yet he swears he will be fair and unbiased, you want him off your jury. That’s peremptories.
So prosecutors have a cheat sheet to explain their race neutral reason to strike blacks? To tell you the truth, it’s not all that hard to come up with a racially neutral reason for pretty much anything.
“Stupid reasons are O.K.,” said Shari S. Diamond, an expert on juries at Northwestern University School of Law. Ones offered in bad faith are not.
Absolutely true, but this is beyond obvious. The problem is figuring out which is which. And unlike the leisure of 10,000 words of lawprofspeak, the judge will give us 10 seconds to argue why the prosecutor’s strike violates Batson, after which he’ll take three seconds to decide it doesn’t. Because that’s how it’s done in real life, horrible as that may seem to the scholarly academic. Go tell the judges this sucks. I’m sure they will change everything because you say so.
Until you know the reality in the well, keep your friggin’ noses out of how lawyers actually pick juries. You get your name in the paper, but we stand there watching the jail door slam shut on human beings.
As any chef will tell you, you have to taste the food to know if it’s cooked well. Looking at it from a distance means squat.
* H/T Nino Pribetic, who knows his Star Trek.