Laying Down a Challenge

On Monday, the U.S. Supreme Court did the right thing in overturning the murder convictions of black defendants in California and Texas after determining that, in both cases, racial discrimination played a role in jury selection. But the court could have done itself, and the judicial system, a service by taking an additional step and embracing Justice Stephen G. Breyer’s concurring opinion, in which he called for the abolition of so-called peremptory challenges, which allow lawyers to strike a number of otherwise qualified jurors.

Some jurors can be struck “for cause” -- bias, say -- by a judge. But peremptory challenges, which allow lawyers to remove prospective jurors without stating a reason, turn jury selection into a classic game that is supported by a massive industry of consultants peddling dubious theories (jurors who wear green favor defendants, etc.). Since 1986, however, a serious constitutional principle has been at stake. In that year, the Supreme Court ruled in the case of Batson vs. Kentucky that potential jurors could not be excluded on account of their race.

If racial discrimination can be inferred from prosecutors’ moves to strike jurors, they can be forced to offer race-neutral reasons for their decisions. A defendant can then question the validity of these ostensible reasons, all of which leads to bickering about such issues as a juror’s “demeanor.” The conceit is that a semblance of objectivity can be imposed on a subjective art.

Former Justice Thurgood Marshall was perceptive in pointing out the hopelessness of this endeavor in his concurrence to the Batson decision, in which he also called for the elimination of these challenges.

It isn’t as if they serve any higher public good. They merely empower trial lawyers and feed the myth of a trial as simply a courtroom showdown between two all-powerful attorneys. Weighed against the constitutional rights of prospective jurors and criminal defendants, they are revealed as an antiquated tradition. The 6th Amendment, establishing the right to trial by an impartial jury, says nothing about the right of lawyers to pick their own jurors.

In the case out of California, the court’s 8-1 ruling held that this state’s highest court set too high a burden of proof to trigger a review of whether a peremptory challenge was discriminatory. In the 6-3 ruling on the Texas case of Thomas Miller-El, the court expressed some exasperation at the failure of state courts and the conservative U.S. 5th Circuit Court of Appeals to apply the law properly.

Miller-El was tried for murder in 1986, the same year Batson was decided. There will be too many more cases like this, unfortunately, until a majority of Supreme Court justices side with Breyer and Marshall and agree to strike down peremptory challenges themselves.