"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Thursday, March 20, 2008

Death By a Thousand Cuts for Peremptory Challenges

I've mentioned before, in commenting on Miller-el v. Dretke, that the SCOTUS is killing the whole concept of meaningful peremptory challenges, a process begun in Batson and which continues in yesterday's case from on high, Snyder v. Louisiana, a capital murder case.

For those fortunate enough not to be lawyers, "peremptory challenges" are where each side at trial gets to strike a certain set number of prospective jurors, not because they are unqualified, but for whatever reason the lawyer thinks the juror may not be favorable to his or her side. For "whatever reason," that is, until the case of Batson v. Kentucky, which says that since defendants have a right to have their own racial group represented on jury pools, and minorities and women have a right to sit on juries, if it can be shown that they were excluded by use of a peremptory challenge solely based on their minority status or on account of their sex, the conviction must be vacated.

I know that sounds incredible, but it's true: a guilty defendant can walk because a potential juror's "right to sit on a jury" has been violated, even if he had the fairest trial in the history of the world and regardless of his guilt or innocence.

In yesterday's case, the defendant, Snyder, and his wife Mary had separated:
they discussed the possibility of reconciliation, and Mary agreed to meet with [Snyder] the next day. That night, Mary went on a date with Howard Wilson. During the evening, [Snyder] repeatedly attempted to page Mary, but she did not respond. At approximately 1:30 a.m. on August 16, Wilson drove up to the home of Mary’s mother to drop Mary off. [Snyder] was waiting at the scene armed with a knife. He opened the driver’s side door of Wilson’s car and repeatedly stabbed the occupants, killing Wilson and wounding Mary.
The prosecutor struck all five black jurors who remained on the panel after the "for cause" strikes had been made. The sole strike the SCOTUS focused on was of a juror who was a student teacher, and whom the prosecutor struck because he appeared to be nervous, and who during questioning said he was worried about missing class. Unfortunately, the record shows that the juror's dean was contacted and said it would not be a problem for the juror to miss a week of student-teaching, and other jurors with similar situations were not struck.

Therefore, the SCOTUS reasoned, the strike was "suspicious." To reach this conclusion, the majority had to substitute its own credibility determination for that of the trial court, which ruled that the contested strikes were race-neutral. Previously, the SCOTUS has ruled that determination of the credibility of the proferred race-neutral reasons resides with the trial judge who can observe the lawyer's demeanor and the surrounding facts and circumstances better than an appellate judge looking at a cold record. Check out Justice Thomas' dissent, which as usual, cuts to the heart of the case, which is the majority ignoring its own precedent by taking the credibility determination out of the hands of the trial court.

Trial lessons for prosecutors (and defense attorneys, since they are bound by Batson also):
1)Protect the record by having the judge adopt your observations about the juror's nervousness, arm-crossing hostility, obnoxious t-shirt, or whatever. At the least, try to get the judge to spell out that he or she is ruling that your reasons are neutral and that he finds them to be credible.
2) If you want to strike a juror for reason 'x,' make sure that you are striking other reason 'x' jurors, or at least make sure you have additional reasons to exercize the strike you want, so you can justify not striking all the reason 'x' jurors.

On the other side, if you're challenging a strike, make sure you have a tight record, because as a case I recently tried and which was upheld on appeal demonstrates, the burden of persuasion for Batson challenges rests on the challenging party, so if the record is not clear enough for the appellate court to assess a challenge, you lose.

If you live in Louisiana, congratulations, you'll be paying to have Snyder re-tried, not because he is not guilty, not because his trial was unfair (ruling a particular juror was improperly excluded does not impugn the fairness of the jury that actually heard the case), but because one juror strike may have been improper.

1 comment:

Western Justice said...

I have always been a strong advocate for reform (http://westernjustice.blogspot.com/2008/03/shame-on-you-defense-attorney-of-week.html) and have always thought it would be easier if the Supreme Court left the issue of preemptory challenges alone, or simply got rid of preemptory challenges all together and just strike people for cause only.

~Western Justice