EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, May 11, 2012

North Carolina's Racial Justice Act, Social Framework Evidence, Ferris Bueller & Quantifying Criminal Law

On April 20th, Superior Court Judge Greg Weeks issued a landmark ruling. That ruling, the first issued after application of North Carolina's Racial Justice Act, found that race was a significant factor in the prosecution's use of peremptory strikes in the trial of Marcus Robinson, an African-American defendant. Accordingly, Judge Weeks vacated Robinson's death sentence and replaced it with a sentence of life imprisonment without the possibility of parole.

North Carolina's Racial Justice Act, enacted in 2009, is the second of its kind in this country, coming on the heels of Kentucky's Racial Justice Act, which took effect in 1998. "But [the] American Bar Association said in a report it was unclear exactly how often [Kentucky's Act] has been used except for during the 2003 trial of an African-American man accused of kidnapping and killing his ex-girlfriend, who was white." Indeed, all indications are that Kentucky's Racial Justice Act is little more than a dead letter.

Conversely, in North Carolina, Marcus Robinson's life was spared a mere 3 years after the passage of North Carolina's counterpart, and "[n]early all of North Carolina’s 157 death row inmates have filed claims under the act." So, what explains the difference? The answer is the different types of evidence admitted under the respective acts, and, in this post, I want to make two points about this distinction.

As noted in Seth Koch and Robert P. Mosteller, The Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina, 88 N.C. L. Rev. 2031, 2116-18 (2010),

differences between the North Carolina RJA and the Kentucky legislation of the same name reveal how the North Carolina RJA avoids indirectly limiting the defendant’s use of statistical proof. The Kentucky statute indirectly limits the defendant’s use of statistical proof by its requirement of particularity in proof linking the statistical evidence to the defendant’s specific case. By contrast, the North Carolina RJA focuses the particularity of proof on how statistical evidence supports "a claim that race was a significant factor in decisions...in the county, the prosecutorial district, the judicial division, or the State." It requires the defendant "to state with particularity how the evidence supports" the claim that race was a significant factor in decisions of the prosecutor or jury in any of these geographical areas at the time of decision, focusing the particularity requirement on proof of the impact of race in one of those areas. Thus, compared to the Kentucky statute, the North Carolina RJA imposes a particularity requirement regarding proof as to the four relevant geographical areas and not the individual defendant’s case.

The Analogy to Social Framework Evidence

The first point that I want to make is that the difference between the RJAs in Kentucky and North Carolina somewhat mirrors the opposing points of view with regard to social framework evidence in sexual discrimination cases. Social framework evidence consists of using "general research results...to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case." 

[A] “social framework analysis...uses general conclusions from tested, reliable, and peer-reviewed social science research as a context for educating fact finders about the case facts at hand.”…The analysis “provides an assessment of general causation in a research area in order to inform the fact finders about more specific causation issues associated with a particular case."

And, as I wrote over on Feminist Law Professors, three academics argued 

in a recent essay "that social framework  testimony as it is commonly accepted by district courts should be categorically disallowed," i.e., "that courts should never let social scientists link general social science findings to an employer’s specific workplace policies unless the proffered expert has conducted his or her own empirical research in that particular workplace."

In that post, I discussed an essay, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 Fordham L. Rev. 37, 39 (2009), that reached the opposite conclusion. I then used courts' treatment of syndrome evidence as an analogy that would support the admission of such framework evidence. Specifically, I noted that courts routinely allow prosecutors to (1) call expert witnesses who have no knowledge of victims, (2) ask those experts hypotheticals drawn from the facts of cases; and (3) ask those experts whether the hypothetical victims' behavior was consistent with a particular syndrome such as rape trauma syndrome or battered spouse sydrome. If such syndrome evidence is admitted without the expert interacting with the victim, why shouldn't social framework evidence be admitted even if the expert hasn't done empirical research into the particular workplace?

And, I would argue, if both of these types of evidence are admitted, why shouldn't an expert's empirical evidence regarding peremptory strikes of African-American jurors in a jurisdiction be admissible regardless of the expert's level of interaction with the defendant's specific case? Unlike Kentucky, North Carolina accepts such evidence, which is why Robinson was able to present evidence from the terrific recent study, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, by Michigan State University School of Law Professors Catherine M. Grosso and Barbara O'Brien as well as University of Iowa Professor George G. Woodworth.

The article is based upon a study the authors conducted in which they "examined jury selection in at least one proceeding for each inmate who resided on North Carolina’s death row as of July 1, 2010, for a total of 173 proceedings." According to the authors,

We analyzed the role of race in strike decisions in two phases. First, we compared the rate at which prosecutors struck eligible black venire members to the rate at which they struck eligible venire members of other races. We then analyzed the role that characteristics other than race played in prosecutors’ decisions to strike or pass potential jurors, and whether any of those characteristics could account for racial disparities in who gets struck.

Here are two of the authors' main findings. First, "[a]s seen in Table 1, across all strike-eligible venire members in the study, prosecutors struck 52.6% (636/1,208) of eligible black venire members, compared to only 25.7% (1,592/6,185) of all other eligible venire members."

Second, as seen in Table 4, "[t]he disparities in prosecutorial strike rates against eligible black venire members persist even when other characteristics one might expect to bear on the decision to strike are removed from the equation."

Given these statistics, it is unsurprising that Judge Weeks vacated Marcus Robinson's death sentence, and it would not be surpising at all if a good number of Robinson's fellow inmates find similar success. I spoke with professors Grosso and O'Brien, and they informed me that every inmate seeking a Racial Justice Act hearing is relying upon their article, which paints a pretty indisputable picture of a pattern of peremptory strikes based on the race of prospective jurors.

In other words, the empirical picture that the article paints is the exact opposite of the current framework derived from Batson v. Kentucky, in which prosecutors can rebut an inference that they engaged in the racially motivated use of peremptory strikes merely by pointing to race neutral reasons for the strikes. And, like employers who can frequently explain away alleged gender discrimination by construing sexist comments as "stray" comments, prosecutors have proven adept in claiming that their use of peremptory strikes against African-American jurors in individual cases has been based upon race-neutral reasons. As noted by Jeffrey Bellin and Junichi P. Semitsu in Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075, 1092 (2011), between 2000 and 2009, federal courts reversed or remanded less than eleven percent of trial court denials of Batson challenges.

That's where larger empirical data such as the above article comes into play, just as social framework evidence allowed sexual discrimination plaintiffs to achieve a greater level of success after decades of failure. The evidence literally frames the issue, allowing the judge to step back from the individual case before him and see the big picture. It is basically the inverse of the scene of Cameron staring at La Grande Jatte in "Ferris Bueller's Day Off."


As the authors told me, North Carolina's Racial Justice Act is doing what Batson should be doing. 

The Quantification of Criminal Law

This dovetails into the second point I want to make, which is that North Carolina's Racial Justice Act brings me back to a back-and-forth that Erica Goldberg at Concurring Opinions (see hereherehere, and here) and I had a few weeks ago. That discussion started with Goldberg proposing a quantification of probable cause and ended with me arguing for quantification across the board:

Quantifying probable cause. Quantifying reasonable doubt. Quantifying the accuracy of polygraphs. Quantifying the accuracy of cross-racial identification. Quantifying the accuracy of excited utterances.

Let's call it applying Moneyball to the law. For years, baseball teams relied upon scouts telling them to draft players, like Billy Beane, who just looked like baseball players. But these players didn't always hit like baseball players, or, in Moneyball terms get on base like baseball players (or, more specifically, have a high OPS like baseball players). The Oakland A's exploited this market inefficiency by drafting players loved by statistical models but hated by the eye test. Eventually, the rest of MLB caught on, which is why the A's fortunes declined precipitously after the publication of Moneyball.

Well, guess what? The legal profession is currently like the rest of MLB pre-Moneyball. When Defendant moves to suppress evidence based upon an alleged illegal search by Officer, Officer points to facts A, B, and C that led him to develop "probable cause." The judge finds those facts plausible and denies the motion to suppress. As with prosecutors under Batson, officers can be pretty convincing. According to the late, great William J. Stuntz in Warrants and Fourth Amendment Remedies, 77 Va. L. Rev. 881, 936 (1991), the government prevails in 80% of suppression hearings. And, of course, keep mind that defendants move to suppress in less than 10% of cases, see id., a subset of cases in which probable cause is probably less "probable" than in the typical case. 

But what if we pulled back and looked at the situation at a degree of abstraction? What if the search were a warrantless search, and such searches only hit paydirt 12% of the time? What if fact A were an anonymous tip, with such tips rarely leading to fruitful searches? What if fact B were a cross-racial identification, a notoriously unreliable source of information? And what if fact C were a "hit" by a drug sniffing dog with a history of false positives? Moreover, what if the police department conducting the search had a very low success rate on searches? And what if the same applied to the individual officer conducting the search?

You get the point. By taking a step back and looking at the big picture, we might see something very different than the one point of information we see in an individual case. That's certainly the argument made by Max Minzner in Putting Probability Back into Probable Cause, 87 Tex. L. Rev. 913, 914 (2009), and it is something that courts are not doing now. 

What this also means is that courts are not comparing the use of the same evidence in different contexts. As I noted in a prior post, courts allow prosecutors to use polygraph evidence to prove probable cause without hesitation, but they per se preclude defendants from using that same evidence to create reasonable doubt even though it should be easier to create reasonable doubt than it is to create probable cause. By quantifying these different standards, we would see that.

So, why don't we? I think that judges are stuck in the past and the old way of thinking about statistics. The classic case taught in law school to show why probabilistic evidence is inadmissible at trial is People v. Collins, 438 P.2d 33 (Cal. 1968), the infamous case in which an African-American man and a blonde woman with a ponytail in a yellow car committed a robbery. Malcolm Collins was charged with the crime and was an African-American man who lived with a blonde woman and owned a yellow car. The prosecution "proved" Collins' guilt by having a mathematics professor testify to the following probabilities: 

Individual Probability
Partly yellow automobile
Man with mustache
Girl with ponytail
Girl with blond hair
Negro man with beard
Interracial couple in car

Of course, the Supreme Court of California tossed Collins' convictions based upon this evidence, and I think that many judges today think that all statistical evidence is as flawed as the evidence used in Collins. But as the authors of the North Carolina study/article noted, statistics are the entire basis of forensics, with DNA evidence playing a huge rule in convicting some defendants and exonerating others. When used correctly, probabilistic evidence can complement other types of evidence during a trial or appeal and allow the decisionmaker to see a more complete picture. The authors contend that those in the legal system need to keep working to ensure that we're not afraid of statistics and other probabilistic evidence. After all, isn't that the promise of Daubert?  



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