In a rare instance of truth emerging via an election campaign, Philadelphia District Attorney Lynne Abraham has touched off an uproar by disclosing a 1986 training video in which a senior prosecutor-now her Republican challenger-baldly urged colleagues to exclude whole categories of black people (among others) from juries.
Here are some of the choicer quotes uttered in the video by Jack McMahon, who has been a defense lawyer since 1990:
"The blacks from the low income areas are less likely to convict. There’s a resentment for law enforcement There’s a resentment for authority. And as a result, you don’t want these people on your jury."
"In selecting blacks, you don’t want tie real educated ones."
"Young black women are very bad."
McMahon also described having ducked a jury he did not want by feigning illness and lying to die judge.
He dispensed his racially tinged advice to his fellow law enforcers just months after the Supreme Court’s landmark 1986 decision, in Batson v. Kentucky, that the Constitution bars prosecutors from using peremptory challenges to exclude blacks from juries because of their race.
McMahon can, however, claim to have teen an equal opportunity stereotypes because he also said that prosecutors should bounce rich, white jurors and that "I don’t think you can ever lose with blacks from South Carolina. They are dynamite. They are law and order. They are on the cops’ side."
Is the McMahon video an egregious example of prosecutorial lawlessness? Or is it (as he has suggested) a rare insight into what is routinely done-although never acknowledged-by prosecutors across the nation?
It is some of both. It is also a vivid illustration of two critical-but largely fixable-problems with the jury system as we know it: (1) the unavoidable tensions between Batson and the duties of trial lawyers (including prosecutors) to their clients to shape the most sympathetic juries they can, and (2) the deplorable tendency of the selection process to purge the best-informed people from juries.
Batson was a wise and necessary decision. The widespread, all-but-overtly race-based prosecutorial practice before Batson of using peremptories to purge blacks from juries stacked the deck against black defendants and implicitly branded African-Americans as second-class citizens.
Some of the Court’s language might suggest that the problem was that prosecutors were simply wrong to suppose that black jurors might be more likely than whites to acquit back defendants. But the real problem was, and remains, rather the opposite: Jurors of all races often are more likely to identify and sympathize with people like them. Give that-and given the guesswork and stereotyping inherent in the use of peremptory challenges;-prosecutors have often had strong incentives to exclude blacks when the defendant is black, much to the disadvantage of the defense.
In part for this reason, the Batson rule-which the Court has also extended to bar all race-based peremptories, by defense lawyers as well as prosecutors and by both sides in civil cases-is difficult for judges to administer. Lawyers almost never admit to acting on the basis of race and can almost always articulate (or concoct) race-neutral reasons (or pretexts) for striking particular jurors, as the McMahon video advises.
Imagine, say, an armed robbery case against a black, 21-year-old, unemployed high school dropout.
The prosecutor peremptorily challenges (among others) all three blacks on the jury panel-two other black, young, unemployed high school dropouts, who like "gangsta rap" music, and a distinguished, 50-year-old, black psychiatrist, who prefers Bach When the defense lawyer objects that this violates Batson, the prosecutor explains that she was not animated by race, but rather struck the first two on a hunch that they might identify with the defendant, and the third because many psychiatrists tend to see anti-social acts as evidence of a malady to be treated rather than as crimes to be punished.
Is the prosecutor’s explanation sincere or pretextual? It’s very hard for a judge to tell. Indeed the prosecutor herself may not know for sure. For when she is required (by Batson) to articulate (even to herself) the impressions underlying her sense that a particular juror may be pro-defendant, race will rarely be the only reason, and there will be a natural tendency to focus on the others.
Deciding whether Batson has been violated is thus an extremely subjective process and some judges will be far more willing than others to take the prosecutor at her word. McMahon’s video suggests that in Philadelphia, at least, some prosecutors think (or thought) that they could get away with cynically circumventing Batson. On the other hand, a judge who is too ready to assume the worst when a prosecutor strikes black jurors-while giving the benefit of the doubt to the defense lawyer’s striking of white jurors-may end up stacking the deck in favor of the defense. This is especially true when many defense lawyers seek to divert jurors’ attention from the evidence to the alleged racism of die authorities.
The less publicized aspect of the McMahon video is his argument for keeping intelligent, highly educated, well-informed people off juries: "Smart people will analyze the hell out of your case. They have a higher standard. They take those words ‘reasonable doubt’ and actually try to think about them. You don’t want those people." McMahon also dismissed as "ridiculous" Supreme Court holdings that the goal "is to get a competent, fair, and impartial jury." He stressed: "The only way you’re going to do your best is to get jurors that are unfair and more likely to convict than anybody else in that room."
Batson provides no remedy here. Nothing in the Constitution bars discrimination against smart or fair-minded people in jury selection. Bet it is a serious problem. Evidence abounds that our current selection process systematically pushes the best-qualified potential jurors.
Many of them seize upon any excuse they can to avoid jury service, whether because they are busy at work or al home or because they are exasperated by the delays and other annoyances to which jurors are routinely subjected. Others in highly publicized cases, are often removed for cause by judges too ready to presume that any juror who has been exposed to pretrial publicity will be biased by it.
The dumbing down of juries is greatly aggravated by the operation of peremptory challenges. Indeed, if the nature of a case is such that a cagey prosecutor wants smart jurors, chances are that an equally cagey defense lawyer will want to get rid of them. And vice versa. The result will often be a jury like the one that acquitted O. J. Simpson, which included not one college graduate and not one regular newspaper reader.
Fortunately, a ready remedy is available, both for the use of covertly race-based peremptories and for the purging of smart people: Reduce the number of peremptory challenges from the 10 to 20 now available to each side in a criminal case in many jurisdictions to about three per side.
Abolishing peremptories outright, as some jury reformers have long advocated, would probably go too far. Often a lawyer can accurately sense that a prospective juror would probably not give her side a fair shake, even when the lawyer lacks the kind of hard evidence that would support removal for cause. Peremptory challenges provide each sick with some protection against biased jurors.
But the whole system is premised on the assumption that such biased jurors are the exception, not the rule. Three peremptory challenges per side should thus be sufficient protection. When each side has 10 or 20 peremptories, the process becomes less an effort to remove jurors with apparent biases than a fishing expedition for jurors predisposed in favor of one’s side. It often degenerates into a speculative and reductive search by each side for ignoramuses with prescribed sets of presumed biases.
Cutting down the number of peremptories should also greatly reduce the use of covertly race-based strikes. A lawyer with only three peremptories is more likely to save them for people who appear to exude actual bias in some way, rather than to exhaust her strikes on the basis of crude and inherently speculative group stereotypes. And limiting the number of peremptories would obviously limit the opportunities of prosecutors (and defense lawyers) to exclude all members of whichever raccial group is in the minority of the jury pool. At the same time, it would be easier for judges to assess whether the reasons given for excluding minority jurors were plausible or pretextual.
There will always be lawless lawyers like Jack McMahon who will try to circumvent the rules. But the rules can and should be changed to make it harder for them to succeed.