Archive for the ‘Juries’ Category

Why Liberal Justices Agree that “Reverse Batson” Error Doesn’t Violate Due Process

Tuesday, March 31st, 2009

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In a unanimous decision this morning, the Supreme Court ruled that “there is no freestanding constitutional right to peremptory challenges,” during jury selection in criminal trials. So even if a judge erroneously refuses to let a defendant challenge a juror, so long as that juror couldn’t be challenged for cause, there is no constitutional violation if that juror is seated.

This was an important case, as the issue really had never been decided before. It may perhaps be surprising that even the more liberal Justices agreed with such an important and apparently anti-defendant ruling as this one. But it really makes sense if you think about it. First, a quick summary of the case:

Writing for the unanimous Court in Rivera v. Illinois, Justice Ginsburg put the issue pretty well in her opening paragraph: “If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant’s conviction?”

Michael Rivera was on trial for first-degree murder. During jury selection, each side was allowed to make peremptory challenges to potential jurors, who otherwise could not have been excluded for cause. Rivera’s lawyer, having already exercised two peremptories against women, now made a third challenge against a female.

The trial judge, said no way, finding sua sponte that the defense was excluding jurors on the basis of sex in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The juror was seated, and was then selected as the foreperson of the jury. The jury convicted Rivera, and sentenced him to 85 years in prison.

Rivera appealed, saying that the peremptory challenge should have been allowed, and that the error required reversal. The state supreme court decided that any error in seating the juror would have been harmless.

On appeal to the U.S. Supreme Court, Rivera first argued that the erroneous denial of a peremptory challenge means the jury contains someone who shouldn’t have been there, so the jury is illegally constituted, and therefore its verdict is per se invalid. The review shouldn’t be for harmless error, because nobody knows what a proper jury would have thought, and so reversal must be required.

The Court didn’t buy those arguments. Peremptory challenges aren’t guaranteed by the Constitution, but instead are permitted by individual state laws, and are merely “a creature of statute.” States can and do prohibit them altogether. So even a mistake as alleged here wouldn’t rise to the level of a constitutional violation.

The Due Process Clause of the 14th Amendment doesn’t elevate the state law to a federal concern, either, because that Clause only protects fundamental fairness in criminal trials. It does not protect the mere “meticulous observance of state procedural prescriptions.” An error of state law isn’t automatically a Due Process violation. And to hold now that a one-time, good-faith misapplication of Batson violates Due Process would probably create the wrong incentive, and make judges less likely to apply Batson in future cases.

So, focusing on fundamental fairness, Ginsburg concluded that the judge’s refusal to reject the juror didn’t have any effect. Rivera’s right to a fair trial before an impartial jury wasn’t affected, because everyone agreed that none of the jurors could have been removed for cause, and none were biased. So it doesn’t matter whether a different panel might have decided differently. All that matters is that the jury did not violate the Sixth Amendment right to an impartial jury.

The Court also rejected “the notion that a juror is constitutionally disqualified” just because she was aware that the defendant had challenged her. Rivera got a fair trial, with an impartial jury, so he got “precisely what due process required.”

The Court’s decision was not only unanimous, but strongly stated. This may have come as a surprise to Court-watchers who might expect some of the more liberal Justices to argue in favor of more rights for criminal defendants.

However, it could not have been a surprise to any who witnessed the oral arguments. Those very Justices on whom Rivera probably relied were his harshest critics. Ginsburg expressed disdain, calling the argument that a wrongly-seated jury is per se invalid “quite a stretch.” Souter pointed out that the Illinois Supreme Court gets to interpret its state law, not the U.S. Supreme Court, and Illinois had held that there wasn’t a violation in the first place. Breyer observed that Rivera’s arguments would create a huge “slippery slope” of making a constitutional issue out of every potential jury defect. Kennedy accused Rivera of making a sweeping proposition requiring massive supervision and intrusion of state courts by federal courts. Ginsburg and Souter also aggressively challenged Rivera’s interpretation of the facts and the decision below. Stevens even suggested that the Court didn’t have jurisdiction to review the case in the first place.

By the end of the argument, it was clear that Rivera was going to lose this one badly. Kennedy’s last question, to the U.S. Government’s lawyer, was essentially along the lines of “you’re going to win, but there are lots of alternative ways we could rule in your favor, so which one do you think is the most straightforward?”

Apart from the clues at oral argument, this ruling shouldn’t really be a surprise to anyone familiar with the ever-evolving law of peremptory challenges. Swain said systematically excluding members of the defendant’s race from the jury pool violates the defendant’s rights. Batson and its progeny expanded the rule to say that prosecutors who exercise peremptories to discriminate against any race or sex (not just the defendant’s) violate, not the defendant’s rights, but the rights of the public to serve on juries (though the penalty benefits not the public but the defendant). J.E.B. v. T.B. extended that rule to say defendants can’t violate the public’s rights any more than prosecutors can (the “reverse Batson” rule).

These cases show that the balance has shifted — away from protecting individual defendants from discrimination that keeps people like them out of the jury box, and towards protecting a generalized state interest in protecting society from the kinds of discrimination we don’t like.

So the Court wasn’t about to stand in the way of the arrow of history, by imposing a rule that would be a disincentive to courts, discouraging them from stopping discrimination.

Looked at that way, it’s hardly surprising that the more liberal Justices were the ones most antagonistic to the defendant in this case. Ruling in Rivera’s favor would have meant undoing liberal protections against general discrimination in society. There was no concrete reason to think Rivera’s jury was actually unfair, so there was no strong sentiment in his favor. The liberal interest in societal justice simply outweighed any concerns for individual fairness here.

Massive Rise in Hung Juries? Deal With It.

Monday, March 23rd, 2009

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Although juries have existed in one form or another since ancient times, the jury as we now know it originated in 12th-century England. At first an accusatory formality, the jury evolved into a check on governmental power. Nowadays, an accused’s right to have the evidence against him judged by members of his community is one of the most essential requisites of criminal justice. Juries also ensure a public perception that the system is just — a necessary precondition for the system to actually work.

But justice requires that juries actually make a decision. And new statistics show that they’re refusing to in ever increasing numbers.

When someone is accused of a crime, the law prescribes certain actions that can be taken by the justice system. It’s so formulaic that much of it could be done by a computer: if the defendant did X, Y and Z, then he goes to prison; if he only did X and Z, he gets probation; if he only did X, then he does not get punished. But before the law can be applied to the facts, the law needs an official version of the facts. We need it so we can move on to the next step, so defendants and victims and witnesses can get on with their lives. A computer can’t do that. It is the job of real people, the jury, to define that official version of the facts.

If a jury refuses to make a decision, justice is delayed. The accused must suffer continued anxiety and uncertainty until another trial closes this distressing chapter in his life. He must double down on the expense of defending himself, and on the stress it puts him and his family through. Victims and witnesses have to go through the trauma of testifying all over again. Another pool of jurors has to take time out of their lives.

But modern sensitivities have made the hung jury ever more commonplace. We’re not supposed to be judgmental. For decades, ethical relativism and cultural sensitivity have been a major part of our socialization. Gen-X kids like me, taught to be politically correct in college, are now entering middle age. The Millennials now entering the workforce have learned these sensibilities since birth, and for many it is viscerally wrong to pass judgment on another. This oversimplifies the matter, of course, but the fact remains that a huge portion of the population now feels significantly more uncomfortable in the role of juror.

These same generations had parents, teachers and professors who lauded the civil rights protests of the 1950s and the antiwar protests of the 1960s. Now they are more likely to use their jury service as a protest — they don’t care what the facts are, they have an agenda in conflict with their role as jurors. Maybe they simply don’t want to put another young black man in jail, and further decimate their community. Maybe they simply want to use their jury service as a vague protest against an oppressive system. We’ve seen plenty of those kinds of jurors, too.

The results have been dramatic in recent years, as the numbers of hung juries have skyrocketed. In the birthplace of the modern jury, the BBC reports that hung juries increased 30.7% in 2007, and a whopping 70.6% in 2008.

Still, this isn’t cause for alarm. Careful jury selection can often identify people who simply cannot pass judgment, as well as those who have a political agenda. Lawyers and judges can use voir dire to educate jurors about the importance of their role, so that they overcome their discomfort and do their job.

Alarmists want to prevent hung juries by allowing majority verdicts in criminal trials. If a holdout is holding up justice, reformers would negate that holdout’s influence, and let a vote of 10 out of 12 be sufficient (as it already is in England). But that is an end run around justice — the principled holdout who refuses to give in to pressure is an iconic figure in public perception. Norman Rockwell painted it, for crying out loud.

No, we’re going to have to play the hand we’re dealt. If the venire is more likely to harbor holdouts, we are just going to have to do a better job of getting across to them, or weeding them out. The jury is the democratic participation of the community in the administration of justice, a system better adapted than any other to the protection of the individual against oppression by the state. As Lord Devlin said, a tyrant cannot rise unless he “overthrow or diminish trial by jury.”