Why race is hard to erase from jury selection

— I have a confession.

I don’t like jury selection.

Some lawyers love it. Several excel at it. Many consider the case won or lost at jury selection.

That may be true. It doesn’t change the fact that it’s just not my favorite part of the trial process — and it’s now in the spotlight because the U.S. Supreme Court is considering a case (Foster v. Chatman) about whether decisions to reject potential jurors unconstitutionally affect a jury’s racial makeup.

The case also spotlights exactly why I’m not particularly fond of the process: Imagine that you are asked to play a game show that is timed like a speed chess match, which tests two primary “skills.” The first is your ability to blindly disagree in a knee-jerk fashion with whatever the opposing attorney wants — which is less a skill, and more of a reflex. The second “skill”? Your ability to leap to conclusions about people based upon your latent discriminatory personal opinions.

Remember, the latter is the very thing your parents raised you not to have, and now your client’s future depends in part on all your unsupported biases and snap judgments about complete strangers based primarily upon their appearance, attributes and origins. It’s a harrowing process, one that feels less like a criminal trial and more like “Hollywood Squares” — a very angry round of “Hollywood Squares.” On top of that, all these deductions and predictions about jurors are based on the scientific equivalent of astrology or alchemy.

Exception to the rule

That’s why the Supreme Court rule of Batson v. Kentucky is often misunderstood. It has come to be understood as a prohibition against racial discrimination. Batson is not really the “rule.” It’s more like the exception to the rule. The rule in jury selection is not “Don’t discriminate.” Instead the rule is: “Discriminate indiscriminately, discriminate wildly, for whatever reason you want, just don’t discriminate based on one thing: race.”

I’m not really alone in my skepticism, either. Justice Thurgood Marshall himself had doubts about Batson. Marshall wrote in a concurrence that Batson “will not end the racial discrimination that peremptories inject into the jury-selection process.” That goal could “be accomplished only by eliminating peremptory challenges entirely.”

He’s right. Peremptory challenges are a limited number of strikes each side can use to dismiss a juror without giving a reason. The very existence of “peremptories” arguably represents an unspoken judicial sanction of discrimination in jury selection.

At the heart of the Foster case is this issue: if Batson prohibits using these secret peremptories for racial discrimination, how do we prove that the prosecution (or defense) discriminated if the conduct occurred almost entirely in the secret thoughts of the attorney?

In Foster, the prosecution ostensibly offered nondiscriminatory reasons for rejecting jurors, but the recently obtained handwritten notes of the prosecutor at trial suggested the prosecution really employed a code to categorize and exclude African-Americans. So then the question becomes more complicated, and socially universal at the same time: Does a person discriminate based on race when they discriminate for both racial reasons and also nonracial reasons?

Keep your notes

Long ago I asked a veteran attorney how to deal with Batson challenges. His response was simple: “Keep detailed notes.” I soon found out why when I was “Batson-ed” myself.

It’s a three-step process: The defendant first must make a prima facie showing of discrimination. If that showing is made, the prosecution must offer race-neutral explanations for the strikes in question. After that, the judge must determine if the improper racial motivation invalidates the juror strike.

The explanation requires attorneys to essentially reveal their handwritten notes aloud in court. This awkward process had me thinking early on that it would be incredibly easy to just write down and read aloud whatever nondiscriminatory reason the attorney wanted, and keep the improper ones locked in his brain.

Unfortunately, my handwritten trial notes are often festooned with doodles of three-dimensional cubes, and superhero insignias — the product of a mind at work, but completely useless in defending a Batson challenge. Overall, though, the entire Batson challenge process feels silly, because the attorney is essentially saying: “No Judge, I’m not discriminating against this juror because of his status as a Latino, I’m discriminating against him because of his job and his personal relationships,” or some other Archie Bunker-esque, “Confederacy of Dunces”-like stereotype about his identity or surface appearance.

The Foster case is unique because it may confirm factually what lawyers and the public have known for years: Requiring people to conjure up race-neutral reasons for discrimination does not prevent discrimination. Batson is not really the problem, either. Rather it’s a judicial attempt to remedy the problem created by peremptories themselves.

Eliminate peremptory challenges?

Some scholars argue that we should eliminate peremptory challenges altogether, because any discrimination, whether based on suspect or nonsuspect categories, is degrading.

Then again, some discrimination of jurors is deemed necessary. As much as it would help a defense attorney to keep a juror who has an open, passionate disdain for police, it might offend notions of fair play to keep that juror on the case.

Once again, the law finds itself stuck in a conundrum. The law should be against disparate treatment of citizens based upon their surface attributes, but it must also preserve the right to a fair trial. As it is, our system of jury selection permits almost every bias imaginable. As long as the bias isn’t racial, it’s likely OK.

When part of that process — the peremptory challenge — is institutionally shrouded in secrecy, we shouldn’t be shocked on the rare occasion when the discovery of attorney notes reveals concealed discrimination. We should be more shocked that someone actually put it down on paper.

Danny Cevallos is a CNN Legal Analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

Pull up those saggy pants

— A Florida town has banned people — let’s face it, young people — from wearing saggy pants.

A councilwoman for Ocala pushed for passage of the law, but the town’s Mayor Kent Guinn may ultimately veto the fashion police.

If the law goes into effect, it’s unclear what measuring tools the Ocala Police Department would use to determine whether citizens’ pants are within the 2-inch legal limit of a theoretical waistline. It’s even more unclear how they will determine where the waistline actually lies on an individual.

More likely than not, the Ocala PD will use the time-honored legal standard of “I know it when I see it” to eyeball the location of waistlines relative to pants lines. The not-too-subtle message is: Pull up your pants, because “2 inches” really just means “too annoying.”

Why do I suggest it singles out young people? I’m not ascribing any evil motive to law enforcement. Rather, as a society, we won’t expect the police to ticket a plumber crouched over at work, accidentally revealing his tighty-whiteys. We’ll expect them to target teens who show underwear as a fashion statement.

So, the underlying legal question arises: Can the government even outlaw saggy pants in the first place?

It’s true that the First Amendment prohibits the government from interfering with our speech — which is the right to receive and disseminate ideas and information.

It’s also true that speech need not be spoken or written. The First Amendment also protects “expressive conduct.” The problem is that expressive conduct is hard to identify.

Clothing can certainly be expressive. In 1971, the Supreme Court overturned one man’s conviction for wearing a jacket that said “Fk the Draft” — but that’s not really expressive conduct, because the written words constituted speech. Expressive conduct conveys an idea without words. Wearing a black armband to school to protest a war is an example of expressive conduct, and the Supreme Court has said doing so is protected speech. .

Indeed, even offensive clothing, like Nazi uniforms, has been deemed expressive conduct, and the reviled Klansman robe has garnered First Amendment protections.

Clothing can be communicative, but courts require an identifiable, specific message to apply First Amendment protection. Saggy pants proponents would have to show that (1) displaying your underwear conveys an identifiable message (2) that the rest of us on the street can understand as an identifiable message.

Well, doesn’t having one’s pants on the ground convey ideas about comfort, personal style, and individuality? Certainly, but those are not specific enough “messages” for the courts. When you think about it, all clothing conveys those ideas. In the ’80s, many of us were conveying strong ideas about acid wash jeans and shoulder pads, and in the ’90s, our collective message was apparently flannel and work boots. But that’s just style — or lack thereof — and it’s not enough of a message to be protected speech.

During the 2013 trial of George Zimmerman, many took to wearing hooded sweatshirts to show support for Trayvon Martin, who was killed by Zimmerman while wearing a hoodie.

Wearing hoodies satisfies the first prong of having a particularized message, but probably fails the second. Hoodies are so popular that a court might conclude the message of solidarity is indistinguishable on the street from, say, someone wearing a hoodie to the gym. In that sense, hoodies would fail the second test, because they are not understood as speech by others.

The results feel confusing: A court would likely conclude that the clothing of a Klansman or a neo-Nazi conveys a particularized message — an unpopular, divisive, angry message. That would entitle it to constitutional protection. But saggy pants? The message is too amorphous, so it cannot be protected speech. And if it’s not protected speech, the First Amendment will not prevent towns from outlawing those droopy drawers.

Few of us like looking at people’s skivvies when their jeans hang off them on the subway, but how offensive is it, really? Our culture’s mores about clothing are fundamentally illogical. We attempt to outlaw this display of the top half of someone’s boxers, but have no laws for that old guy at the pool — usually the same guy glistening with suntan oil — who prances around in nothing but a Speedo all summer. What’s with that guy, anyway?

The point is that culturally, we accept nearly complete nudity in one context, but try to regulate mostly clothed conduct in another. There really is no logic to our ideas about clothing. That helps to explain horrible fashion choices from decade to decade, but does little to logically justify clothing regulations. As much as we feel free to express ourselves with apparel, we likely have less freedom of expression than we imagined.

And at least in one town in Florida, no matter how trendy your gear may be, it looks like it’s time to pull up the pants.

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Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.


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