Negotiating peremptory challenges.

• Author: Morrison, Caren Myers
• Position: II. The Trouble with Batson B. The Problem of Implicit Bias through Conclusion, with footnotes, p. 30-58

2. THE PROBLEM OF IMPLICIT BIAS

   The critical weakness of Batson is conceptual. The entire framework rests on the assumption that considerations of race are conscious and can be purged from the jury selection process either by honest self-reporting or by judicial assessments of attorney motivation. Like most unstated assumptions about human behavior embedded in legal doctrine, (146) Batson's foundations are psychologically naive. Recent advances in social cognition research have shown that most of us operate under a considerable burden of implicit bias. (147) While racism is no longer socially, morally, or legally acceptable, even people who believe themselves committed to egalitarianism may simultaneously hold negative views about racial minorities in general and African-Americans in particular. (148) Cognitive research suggests that people automatically categorize others upon first contact and that they use the most salient characteristics, such as race and gender, to do so. (149) AS one research team put it, "The ability to understand new and unique individuals in terms of old and general beliefs is certainly among the handiest tools in the social perceiver's kit." (150)

   In the past decade, research using the Implicit Association Test has shown that implicit biases are both pervasive and widespread, (151) with the result that many Americans show automatic preference for white over black. (152) But Batson rests on outdated and inaccurate assumptions about human behavior--assumptions that were recognized as problematic even at the time. As early as his Batson concurrence, Justice Marshall recognized the flaws in its framework: "A prosecutor's own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is 'sullen,' or 'distant,' a characterization that would not have come to his mind if a white juror had acted identically," he warned. (153) "A judge's own conscious or unconscious racism may lead him to accept such an explanation as well supported." (154) His observations only have more support today.

   Studies in the emerging field of implicit social cognition, an area that draws on social psychology, cognitive psychology, and cognitive neuroscience, have revealed that "[w]e are not perceptually, cognitively, or behaviorally colorblind." (155) Instead, the research shows that "most of us have implicit biases against racial minorities notwithstanding sincere self-reports to the contrary." (156) But what is most striking about these findings is the wide dissociative gap between what we believe our feelings to be and what they actually are. We want others to see us, and we want to think of ourselves, as unbiased and open-minded. (157) This motivation is powerful, sometimes to the extent that people deny that race matters to them or that they even noticed race. (158)

   Therefore, even if we put aside the incentives created by the adversary system, asking lawyers to identify their own implicit biases is "at best uninformative and at worst misleading." (159) If a lawyer is unaware of how a juror's race has affected her decision to strike, she will be unable to explain it. Conversely, if she is aware that race informed her decision to strike, she will have the double incentive of not losing the strike by admitting that race was a factor and the generally shared desire not to appear racially biased. As commentators have noted in the employment discrimination context:

   Even if people want to conform their behavior to the norms underlying antidiscrimination law, full compliance with the law's prescriptions is unlikely if the relevant legal doctrines fail to capture accurately how and why discrimination occurs, how targets respond to it, and what can be done to prevent it from occurring. (160) None of this should give us any comfort that Batson is a meaningful way of identifying bias or helping judges to determine the "real reasons" for any strike.

   Caught between the need to zealously represent their clients and the edicts of the Supreme Court, many lawyers are tempted to lie to the court or to themselves. This is not hard to do, either doctrinally, because the race-neutral reasons do not have to be "persuasive, or even plausible," (161) or psychologically, as "[r]esearch suggests that people are remarkably facile at generating neutral explanations to justify biased judgments." (162) This results in widespread use of casuistry, defined as "specious reasoning in the service of justifying questionable behavior." (163)

   This behavior was illustrated in a recent study by social psychologists Samuel Sommers and Michael Norton, in which they created a jury selection scenario in a hypothetical case. In the scenario, the defendant was charged with robbery and aggravated assault; the prosecution's case relied heavily on DNA evidence. (164) Sommers and Norton asked participants (165) to assume the role of a prosecutor exercising her final peremptory strike and choose between two prospective jurors whose profiles--which included familiarity with police misconduct for one, skepticism about statistical evidence for the other--were designed to be equally unattractive to the prosecution. (166) To test the effects of race on the decision, in one condition, the first juror was depicted as white and the second juror was depicted as black, and in the other condition, the races were reversed. The study showed that participants' judgments of who to strike varied sharply by race. When the first juror was black, "participants challenged him 77% of the time; this same individual was challenged just 53% of the time when he was White." (167) Similarly, the second juror "was challenged 47% of the time when he was Black, compared to 23% when he was White." (168)

   Despite these disparities, the participants "rarely cited race as influential, focusing instead on the race-neutral characteristics associated with the Black prospective juror." (169) Therefore, 96% of the participants "cited as their most important justification" either the first juror's familiarity with police misconduct or the second juror's skepticism about statistics. (170) Norton and Sommers concluded that, "even absent awareness of the restrictions implemented by Batson, individuals are loath to admit to the influence of race." (171) So the chances of a judge being able to divine an attorney's true intent in exercising a strike are remote. Instead, it may be time to subject the entire peremptory challenge inquiry to the scrutiny of behavioral realism, whose "only real normative commitment," write Jerry Kang and Kristin Lane, is to stand "against hypocrisy and self-deception." (172)

3. MISUNDERSTANDING THE ATTORNEY'S ROLE

   Another Batson weakness is that it systematically underestimates the professional motivations of attorneys. Trial lawyers, faced with the choice between protecting their clients' interests and upholding some vague constitutional mandate, routinely choose the former. (173) David Baldus, after conducting a meticulous empirical study of 317 capital murder trials in Philadelphia between 1981 and 1997, found that prosecutors in capital cases overwhelmingly struck black jurors and defense counsel overwhelmingly struck white jurors. (174) He concluded that, "in Batson, the United States Supreme Court completely misunderstood the conviction of both prosecutors and defense counsel that race and gender discrimination are rational, ethical, and necessary strategies to protect the interests of their clients." (175)

   At trial, a lawyer's foremost obligation is to her client. (176) For lawyers committed to defending their clients with "devotion and zeal," (177) Batson represents a roadblock to single-minded advocacy. Faced with the immediate obligation of representing a client facing the loss of liberty or even life, they do not have the time or inclination "to fight cultural stereotypes unless they are being used against [their] client." (178) Indeed, some may believe that their duty to their clients is so strong that, as one lawyer argued, it would be "unethical for a defense lawyer to disregard what is known about the influence of race and sex on juror attitudes in order to comply with Batson v. Kentucky and its progeny." (179)

   Justice O'Connor acknowledged the difficult position in which the Batson doctrine places attorneys. "We know that like race, gender matters," she wrote, concurring in J.E.B. v. Alabama. (180) "[O]ne need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case." (181) But the Court's decision "severely limit[ed] a litigant's ability to act on this intuition." (182) Instead, the Court had decreed that "any correlation between a juror's gender and attitudes is irrelevant as a matter of constitutional law. But to say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact." (183) The same is true for race--studies have shown that juror race can have an impact on trial outcomes, particularly for nonwhite defendants. (184) So the Court's insistence that race cannot legally be a consideration puts lawyers in an impossible position. And when voir dire is limited, lawyers are even more likely to rely, at least in part, on stereotypes. (185)

   Therefore, there is a double incentive for lawyers to mask any effect of race in their decisions to challenge particular jurors--both the Batson line of cases and psychological pressures. Above all, lawyers want to win, particularly at trial, where the stakes are highest. As one trial lawyer admitted, once the burden shifts to him to justify a peremptory strike, "then you are tempted to engage in that thing which is absolutely horrible: lying in a courtroom. You have an ethical duty to be candid to the court, and yet we all know that pretext is the name of the game here." (186) The end result is that it is "highly...