Miller-El v. Dretke is but the latest word from the Supreme Court about the misuse of peremptory challenges in a Texas murder case. The case has its roots in the mid-1980s when it was remanded in light of Batson v. Kentucky, the precedent that gave teeth to claims of racial bias in such cases. The lower courts didn't think there was a showing of discrimination, but eventually the Supreme Court said there was (hint hint) a reasonable claim indeed. The lower courts did not take the hint, citing the dissenting opinion of Justice Thomas along the way. Clearly annoyed, the Supremes took the case again, and (along with a companion case) overruled (underlining the importance of Batson challenges as well).
This case suggests the importance of federal appellate review, including on the Supreme Court level. It also suggests that peremptory challenges are still an issue, also shown in other cases that expanded Batson (including to civil litigation and gender discrimination). When Batson was originally decided, Justice Thurgood Marshall concurred separately to argue that peremptories by themselves are constitutionally suspect. They further bias and stereotypes and Batson was too slim of a reed to solve the problem across the board. Justice Breyer took his lead in this case.
Some are sympathetic while others are wary. Count me with the former group, but I respect the concerns. First off, one complaint is that Breyer is not consist with comments like "If used to express stereotypical judgments about race, gender, religion, or national origin, peremptory challenges betray the juryÂ?s democratic origins and undermine its representative function." After all, he wants to expand the power of judges in sentence guideline cases (see Booker). But, putting aside the differences, he can be partly wrong, right?
More troubling concerns go to the basic purpose of these challenges: giving flexibility to lawyers to determine bias. Sometimes, merely asking questions will not determine a juror is biased, thus "for cause" exemptions are too narrow. Relying solely on "for cause" challenges also might shift the control to prosecutors or judges. The first might have the resources to investigate potential jurors that many defense attorneys (who don't all have loads to spend on jury consultants and such) do not have. The second because "for cause" means "for cause as interpreted by a judge." The current policy allows the two parties' lawyers to have a say as well.
Not being a trial attorney, or attorney at all for that matter, I cannot belittle such concerns too much. My concern is that it does seem rather arbitrary and will in various cases be based on pure racial or other illegitimate (if brought out in the open) bias. These two cases will make it easier to prove, of course, and many cases will not bring up such concerns at all. And, if "for cause" was the only test, I reckon the practice in court would change somehow with the meaning of this term being much looser than it now is. The push to end many exemptions also has broaden the jury pool, made it morerepresentativee. And, perhaps more in need of gut instinct methods to weed out biased jurors.
My heart tells me that ending peremptories might be a good idea, but my brain tells me that the critics (and we are talking about defense attorneys here as well, who surely disproportionately deal with minority clients) make a good case why that would not be a good idea. [Including at least one reader of this blog.]