Peremptory challenges as a shield for the pariah.

AuthorBrown, Raymond
PositionSymposium on bias in justice administration
  1. INTRODUCTION

    By an ideologically neutral process, I have been selected as the bete noire of this symposium. I accept that challenge and, whatever your reaction, I will always love you.

    After the Rodney King verdict,(1) I was appointed to a New Jersey Supreme Court committee(2) charged with making recommendations about jury selection in New Jersey. The group included a cross-section of the legal community. When the committee debated these issues, it eventually reached the issue of peremptory challenges; the dividing line in the committee was fascinating. It was not left vs. right; it was not black vs. white; it was not male vs. female; it was not heterosexual vs. homosexual. There were trial lawyers on one side, and judges and academics on the other. Under the "strange bedfellows" test, I am not sure which of those two latter groups should be more concerned or horrified.

    Criminal defense lawyers, prosecutors, and civil lawyers for both plaintiff and defense were unanimous in their opposition to losing the peremptory challenge because it is necessary to effectively represent their clients. Obviously, one could raise the criticism that this is merely the wailing and crying of a group afraid of being deprived of its favorite toy. Consequently, we need to take a much deeper look to see whether there is any legitimacy to the almost universal claim by those "in the pits" every day that the peremptory challenge is an important tool to protect litigants at trial.

  2. DISCUSSION

    My approach is simply that of a trial lawyer. I am not a scholar. I am not an intellectual, so I will not engage in the admirable and fancy intellectual footwork that has gone on since the decision in Batson v. Kentucky.(3) I am, however, someone who deals with these issues on a day-to-day basis and who also has, as ideological baggage, a concern about what happens in our criminal courts and who is being tried there.

    There are really two things we need to analyze to get to the bottom of this debate and to test the practitioners' claim. I think we must first consider how we treat the least fortunate, the pariahs in our society. I imagine you will accept that the treatment of those defendants who are least popular and most likely to be hated or despised is a test of the effectiveness of the system. How does the system work for them?

    Second, I assume you are willing to question whether the Batson analysis is an honest one. Is there any such thing as a racially neutral "anything" in America, or is that a ruse and an invitation to hypocrisy? Ultimately, I think you will be forced to the conclusion that the group being injured includes young blacks, Chicanos and Latinos, the usual pariahs who nobody wants and to whom we are being absolutely dishonest in our analysis. As a result, I believe the only solution is to eviscerate Batson, and focus our social engineering on changing the jury venire and stopping the pretense that somehow we can elevate the mythical right of jurors over that of defendants. Talk about living in an unreal world!

    What do W.E.B. DuBois and Hans Christian Anderson have in common? DuBois tells us that race is the dominant question of the 20th century,(4) and Hans Christian Anderson tells us of the little child who stood at the parade and was the only one willing to say "the emperor has no clothes."(5)

    Candor and honesty require us to admit there is not a decision that we make in terms of social grouping that does not involve an analysis of race, a quick look at gender, and perhaps a glance at sexual orientation--a look at the very factors that we are now sweeping under the rug. In this regard, I suggest that you think about something that has been a significant experience in my life. For the past twenty years, I have been talking to black kids in high schools and colleges about black history, because blacks know too little of our(6) history. The question that I have posed to every high school and college group to whom I have spoken is a simple one: What was the principal issue facing civil rights groups at the beginning of World War II? To this day, after speaking to thousands of students, not one has answered the question correctly. The answer is "lynching." Lynching was the issue that preoccupied the African-American community at the beginning of World War II.(7)

    Blacks are still being lynched in large numbers. I suggest it as a troublesome metaphor because carried to its ultimate and logical conclusion, concern about the community's attitude about the pariah is toleration of the lynch mob. That is not to suggest that the Supreme Court is a lynch mob, but to suggest that at one end of that extreme exists some very, very dangerous territory.(8)

    I find that popular culture is always a good way for me to get insight into deep questions because, although there has been a lot of fancy intellectual sleight-of-hand, I feel the need to put the fodder where the lambs can reach it. I recall not long ago--and I take some risk in telling you this story because it reveals some of my own sexism, which I am still in the process of trying to eradicate with much help from Wanda, who is my love--my sixteen-year-old daughter overheard me say to a friend that I hoped that her first sexual experience would be in her second marriage. She was horrified and took me to see a movie called "Father of the Bride" for punishment and rehabilitation. So I began to see there is pedagogical value in popular culture.

    Last January, I was listening to National Public Radio and a commentator said that for the first time in the history of America, the top twenty musical hits on the charts were all by non-white groups. Look at the fact that the young people of America are listening to music predominantly by non-white groups.(9) Furthermore, one week, all of the top twenty songs were by non-white groups, and the top song was "I Will Always Love You," a Whitney Houston "cover" of a Dolly Parton song. This clearly reflects a reversal in the normal dynamics of our culture. What...

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