If you think those “Twelve Men” were angry, imagine all the women who should have been in that room! The movie was made in 1957 and it wasn’t until 1973 that women could be on juries in all fifty states. While African Americans had been allowed earlier, various means still kept them off. Batson v Kentucky, 476 U.S. 79 (1986) set out to correct this shameful injustice. Batson prohibited striking jurors in criminal trials because of race. It was extended to civil trials and to sex. With legislation passed last August, Illinois largely extended protection to other groups.
However, Batson became a huge problem for trial judges. The problem is the competing right to peremptory challenges. Before, Batson, trial lawyers were allowed to strike prospective jurors for any reason. Since Batson, that reason excludes race or sex. The trial judge is supposed to ferret out the true reason for a peremptory, deny the strike and even sanction a lawyer trying to remove a juror for race or sex. The hard truth is that Batson may simply be irreconcilable with peremptory challenges.
Justice Marshall wrote about this in his Batson concurrence.Others have also. Still, no serious steps have been taken to end them. Peremptories also are seen as crucial to preventing bias. The right to a trial free of bias unequivocally requires voir dire which is little use without peremptory challenges. Bias may equally stem from a judge. As long as we have trials by jury, it seems contradictory to give judges complete control over who is on the jury.
Even the best judges don’t get every cause ruling right. A judge may not see the bias and that’s tough to appeal. Judges have other aims as well. They have to get juries empanelled in a timely manner. They cannot allow phony claims of bias. Further, at the voir dire stage, trial judges never know the case as well as the lawyers. The lawyers know the trigger points. Peremptories act as a limited check on a few adverse for-cause rulings.
Given the fact of peremptory challenges, it’s reasonable to ask if Batson really works. Consider:
- No one agrees on how to apply the Batson test. Confusion and disagreement is common. The test has three steps with a shifting burden of proof. The goal is to discover the true motive for a challenge. However, whether it’s three or five or ten steps, there is no real way to gauge the sincerity of a “race-neutral” explanation. Arguments get very strange (was the juror really smiling, dozing, mumbling, frowning, brusque, expressive, nervous, confused, making no eye contact, rolling his eyes, “ringing”, dressed odd?) The racial neutrality of allowable factors like family criminal history, education, English fluency, distrust of police, and employment is hotly debated.
- It’s never that simple. There is no clear standard for what must be shown. Cases have discussed “absence of a legitimate reason,” “mixed motives,” “inference of discriminatory purpose or intent,” “disproportionate,” “pattern,” “based on,” “substantial factor,” “disparate treatment,” “purposeful,” “motivating factor,” or even “sole factor.” People are not that simple. Everyone’s background is too variegated for classification merely by race or sex. There could be ten reasons a lawyer exercises a peremptory and race or sex could be the least of it. The lawyer may not even know the reason.
- What is race? The Census Bureau defines race as “a person’s self-identification with one or more social groups.” Ethnicity is an entirely separate concept: “Race is not defined biologically, anthropologically or genetically.” At present, there are five recognized races covering fourteen regions of origin and the list is expanding. According to the Pew Research Center, “a growing percentage of Americans don’t even select a race category provided on the form.” Millions of Americans fill in the census form saying, “some other race.”
Since first permitted in Census 2000, the number of people who identify with more than one race is growing. Since then, home DNA testing has made for a lot of surprises and a lot more nuance in racial identification. People may identify with three or four races and numerous regions of origin. Asked their race, many will say, “I don’t know” or “that’s complicated.”
In the very worst of racial bigotry, Batson may ask the trial judge to find a challenged juror or a retained juror or a prospective juror is or is not “enough” of a particular race to allow or disallow a strike.
- Even if it were agreed what race is, how can a judge know the race of a challenged juror or compare it to the races of the other jurors? When it comes to race, people self-identify. Nothing on our juror cards asks for a juror’s race. Such notations by a court have been soundly criticized. Trial judges must silently guess.
And that guess is not just for the challenged juror but for the entire venire, even the entire community. The race of parties, witnesses and lawyers may also be considered in deciding a Batson challenge.
A transcript might say, “Yes, but you struck Juror #16 who looked only slightly African American and Juror # 34 who looked sort of Asian or maybe a bit Hispanic. Or Pacific Islander. Challenge disallowed.” (See, e.g., People v. Ortega, 62 N.Y.S. 3d 879 (2017)(“He looks pretty black to me, Judge”. . .“I was thinking Hawaiian”).
- Even determining sex is less clear than it used to be. The bathroom wars show people do not necessarily identify with their birth-assigned sex. If discrimination by sex is forbidden, the trial judge must make judgments about sexual identification based on—on what? Appearance? Manner? We’re asking judges to make snap judgments on superficialities.
- States are expanding the list of protected classes. Effective Jan 1, 2018, Illinois 705 ILCS 305/2 Ch. 78 para 2, provides that no juror may be excluded on the basis of race, color, religion, sex, national origin or economic status. It certainly sounds right. But can judges actually compare jurors’ colors? Imagine those arguments. Interior decorators may be called on for expert testimony. Sun tans are constitutional issues. The record will be a nightmare. How will an appellate court review a decision to disallow a strike based on color? How will judges know jurors’ national origin or economic status or religion and how will they find purposeful discrimination on those bases? And will the list continue to expand, including consideration of protection for age, politics, ethnicity, disability, military service and profession?
And, after all, maybe that’s a good thing. Maybe our world is changing. Maybe despite everything we read in the daily paper, race and gender divisions are slowly dissolving and people are quietly coming closer together. Maybe a decision using race to right race should be hard to apply. And maybe we’re not as far from not needing Batson as it may seem.