Monday, June 8, 2009

Don't ever call me an agent for the state

The most appalling thing the U.S. Supreme Court has ever done (well, aside from Dred Scott and Plessy v. Ferguson and Koramatsu and probably some others I'm not thinking of right now) is say that Batson v. Kentucky applies to criminal defendants.

For the non-criminal lawyers among you, in Batson v. Kentucky, the Supremes ruled that the state could not strike black prospective jurors just for being black. (They would later also rule that the state could not strike female jurors just for being female.) Because the prosecutor is a governmental agent, it would violate the constitution for a prosecutor to deny a juror the right to be on a jury based on his/her race.

Now, this was kind of a big deal because DAs offices throughout the nation had manuals instructing trial prosecutors to get all the blacks or minorities off of juries. In the pre-Batson days, in a lot of courthouses throughout the nation (especially the south), black persons never saw the inside of a jury box. So I'm ok with Batson. I think it's a good ruling in principle. It doesn't actually have any teeth whatsoever and a prosecutor doesn't need to say much to show a "race-neutral" reason for striking the juror, but at least they have to state a reason. They have to think about it.

Prosecutors really hated Batson. So soon after Batson came down, they started to complain that defendants were using their strikes to discriminate, too. And that's not fair! After all, according to the Batson court, the right involved here was the right of the prospective jurors. Those prospective jurors had a constitutional right not to be discriminated against based on race or sex. So after a few years, the US Supreme Court issued another opinion, Georgia v. McCollum. In that case, the damn court came up with the most tortured logic I have ever read to conclude that defense counsel also couldn't strike jurors based on race or sex.

Maybe at first blush, that seems fair enough. What's good for the goose and all that. But it's so very wrong. Because the constitution protects people against discrimination by the STATE. If it's not state action, a victim of discrimination has not suffered any harm to a constitutional right. Someone, anyone, please tell me who is less an agent of the state than a criminal defendant? When a criminal defendant acts in a courtroom, it makes a mockery of his plight to suggest that he acts as an agent of the state.

Every time I have to deal with this reverse Batson nonsense, I just want to tear my hair out. Defense attorneys should not have to defend their peremptory strikes of jurors. We shouldn't have to prove that we don't have some discriminatory motive. Because we don't represent the state.


Bob S. said...


I'm trying to understand your position here and not quite getting it.

Are you saying that if I owned an agency I could discriminate against someone because of their sex or race and it wouldn't be illegal discrimination because I'm not an agent of the state?

The right to a jury trial by one's peer does work both ways. If a defense attorney blocked all African American's from a jury of a person accused of killing an African American, wouldn't that be illegal discrimination?

I am reading a bit of a double standard here. It's not okay for the prosecutors to be racist/sexist, but it is okay for the defense to be racist/sexist?

S said...

The source of prohibition on businesses discriminating is federal statute. This jury decision is based solely on the equal protection clause of the 14th Amendment. If someone wants to pass a statute covering this jury thing, I could live with that. But for the Supreme Court to create the prohibition on jury strikes solely out of the Constitution is just bad law. The Amendments do not apply to private citizens; they apply to state action.

As for the double standard, there are lots of rules that apply to the state and not to the defense (and a few the other way). Because they are not equals. The defendant has constitutional rights, the state does not. They just aren't in equivalent positions heading into a criminal trial so each side needs to be evaluated separately to decide how the rules should apply. And all ties or close calls should be decided in favor of the defendant. The state is trying to take the defendant's liberty (and in some cases life) away. They should have to jump through a few extra hoops.

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