26 July 2005

A judge refuses to seat all white juries.

Having stood in a courtroom with a 19 year old Black, male defendant and looked up at the twenty older, white, well-to-do jurors (OMG they can't all be bankers or banker's wives! Can they?), I understand the sentiment. I think it's probably a constitutionally infirm stance, but I understand the sentiment.


Tom McKenna said...

Not just infirm, but down-right unconstitutional, if you accept Batson. After all, Batson is premised upon ensuring that no group is improperly excluded from the jury on racial grounds. This judge apparently believes discriminating against white people is acceptable. What frustrates me is that many judges, and even many prosecutors, do not understand that Batson is supposed to be an entirely neutral rule to protect the privilege to serve on a jury. Hence, a prosecutor may make a Batson challenge when the defense attempts to exclude a particular race or sex from the jury.

This judge ought to be impeached for his racist assumption that a white jury cannot fairly try a case. It is an aspersion on each and every white juror without any foundation in fact. Just the type of stereotyping Batson was intended to remedy.

Anonymous said...



Batson is a meaningless right. Any prosecutor who is smarter than sperm can make their strikes survive a Batson challenge.

Few are the panels where there is a constitutionally adequate number of blacks, hispanics & other nonwhites. The judge is simply doing what we all know needs to be done, refusing to go along with a system that at times isn't much removed from a rope, a tree & a young black man about to be lynched.

Tom McKenna said...

Anon: check out Miller-El v. Dretke, dude. To the extent Batson may have been an easy hurdle for the prosecution, that's finished with by this recent Supremes decision. Effectively, the parties have very little discretion on peremptories now. I say parties because of course, Batson applies to the defense as well as the govt.

If you actually read Batson you would realize that there is no such thing as a "constitutionally adequate" number of minorities, because it is assinine to assert that jury pools have to be proportionately representative of the racial makeup of the jurisdiction. There is no such requirement in the constitution, and even the Supremes have not (yet) contorted the constitution to find such a requirement.

What they have said is that no party may purposely exclude jurors for a constitutionally impermissible reason, i.e., membership in a particular race or sex.

I don't know where you live, friend, but in my neck of the woods juries do not convict just because the defendant is black. I know, I've lost fairly strong cases with all white juries and black defendants-- you cannot presume white people are racist as this judge does. It's no more fair than presuming young black men are criminals.

Get over your liberal white guilt and let's just start acting fairly to everyone, yes, even to white people.

Anonymous said...

I have done too many post-trial jury interviews with stricken black jurors who were more than qualified to serve, sat next to too many prosecutors whose entire strike list consisted of hispanics, blacks & identifiably gay/lesbians whose use of strikes was upheld because at least one black sat on the jury or the defense struck blacks as well, and have read too many Fifth Circuit opinions (such as Murphy v. Dretke two weeks ago)where blatantly obvious racial strikes were upheld, to know that Batson is a name invoked only if one wants to laugh at the SCOTUS. Miller-El only means don't get caught. My favorite excuse is that our state's voir dire practice is inadequate and therefore you have to strike on presumed political affiliation, the town the jury comes from and "body positioning."

Further, don't know where you practice, but it isn't about just the result, it is about the appearance of impropriety All-white juries sitting in judgment of blacks (or anyone) smells to high heaven and has the bad odor of Scotsboro.

But the problem isn't just limited to prosecution strikes. Again, don't know where you practice, but what happens when the Defendant intentionally strikes people based on impermissible characteristics? Where I practice if Defense counsel uses race (or other impermissible categeories) based challenges the result is you throw out the entire panel & the defense counsel can not be sanctioned (including contempt) for their actions.

The Court, including in Miller-El, has given us meaningless rituals instead of something with teeth.

Anonymous said...

Problem with Judge Clay's pronouncement is that at least in one of the cases the picked venire at the time included hispanics and Asians. Judge Clay's statements seemed more to be that she wouldn't seat a jury without African-Americans on it, lumping all other people as white.

Second, there were no Batson issues raised yet. The Judge took it upon herself to declare as policy that a jury must include African-Americans setting a de facto quota for jury selection.

I've appeared before Judge Clay many times both as a prosecutor and defense attorney and I like her on a personal level, but while her intentions are good her legal reasoning here is problematic.

iocaste said...

I sympathize with the sentiment, but some bankers are women.