CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, November 6, 2015

Marder on Eliminating Peremtory Challenges

Marder nancyNancy S. Marder (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Foster v. Chatman: A Watershed Moment for Batson and the Peremptory Challenge? on SSRN. Here is the abstract:

This Term, the United States Supreme Court will decide whether the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky, but the Court should not stop there. In addition to holding that the prosecutors’ peremptories were discriminatory, it should acknowledge on this 30th anniversary of Batson, that Batson, though well-intentioned, is unable to stop discriminatory peremptories. If the Court is truly committed to nondiscrimination during jury selection, it needs to abandon Batson and eliminate the peremptory challenge.

In this capital case from Georgia, petitioner Timothy Tyrone Foster, an African-American man, claims that the prosecutors violated Batson by exercising race-based peremptories during jury selection. Foster was tried, convicted, and sentenced to death by an all-white jury. What makes this case so unusual is that Foster, through the Georgia Open Records Act, was able to obtain the prosecutors’ notes. In the notes, the prosecution had highlighted the names of African-American prospective jurors on the venire list, circled their race on their questionnaires and noted it on their juror cards, and put them on a “definite no’s” list. The prosecutors had focused on race, even though they had given seemingly race-neutral reasons to explain their peremptories.

This Article explores several approaches the Court could take to resolve Foster’s case and the Batson conundrum. If the Court were to take a minimalist approach, it would simply find a Batson violation; however, the Court should do more. In terms of incremental steps, it could tweak the Batson test in different ways, such as by giving more weight to discriminatory effects or practices or by devising a stronger remedy. However, in my view, the only remedy that is adequate to the task is the one that Justice Marshall suggested in his Batson concurrence thirty years ago: the elimination of the peremptory challenge. A growing number of trial judges, who are in the trenches and responsible for implementing Batson, have taken this view as well. Were the Court to take this approach, it would mean that for the first time in our nation’s history, jury selection would be conducted without the discrimination now masked by peremptory challenges.

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Has this law professor tried many jury trials?
Your honor I move to strike juror number two for cause because he belongs to the Klan.
Judge: So do I, motion denied.

Posted by: Jack Mehoff | Nov 6, 2015 8:55:33 AM

Eliminate the peremptory challenge? This works for minority defendants in criminal cases and minority plaintiffs in civil rights cases. I have been in criminal cases where the judge refuses to dismiss a juror for cause and yet where the cause is entirely justified. Like where a cop is on the panel and knows the cop who is being sued. Or in a civil rights case where we sue the White Citizens Council alderman and one of his party members is on the panel. The judge refuses to remove for cause. I have to use one of my peremptory challenges. But at least I have some to use.

This is a no brainer. Ask civil rights lawyers or criminal defense lawyers who have tried cases in the South.

Posted by: Liberty1st | Nov 6, 2015 8:33:39 PM

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