Smulls v. State

WOLFF, Judge,

concurring.

I concur in the principal opinion, but write separately only to raise the question of the wisdom of allowing each side nine peremptory challenges. Our system of peremptory challenges greatly encourages the racial discrimination in jury selection that Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), attempted to end. Moreover, jury selection is susceptible to being manipulated by either prosecution or defense to the extent that the resulting jury does not appear to be drawn from a reasonable cross-section of the community.

The road to Hell, it is said, is paved with good intentions. Batson was decided with the best of intentions — eliminating racial discrimination in the use of peremptory challenges. The present case, with its tormented history, shows that good intentions may not have led to Hades, but the road surely has been fraught with difficulty.

Justice Thurgood Marshall predicted that the protections provided for in Batson would be largely illusory. Batson, 476 U.S. at 106 , 106 S.Ct. 1712 (Marshall, concurring). He was right, of course, for reasons that lawyers may find uncomfortable to acknowledge.

Our discomfort arises from the essential truth about jury selection — it is based on generalizations about a venireperson’s *158 race, ethnicity, religion, sex, socioeconomic status, occupation, neighborhood, among other factors. Those who study jury behavior and teach trial advocacy tell us that certain types of people are preferred jurors depending on the particular type of case. For instance, it is commonly believed that plaintiffs in personal injury cases prefer jurors with ethnic backgrounds such as African-Americans, Hispanics, Irish, Jews, French, Italians, and other Mediterraneans. It is claimed that these people respond well to the emotional appeal in cases. 1 Irving Goldstein & Fred Lane, Goldstein Trial Technique, Ch 9, 86 (3d ed.2001). On the other hand, those of German, English, and Scandinavian descent are considered to be best for the defense in personal injury cases. Id. at Ch 9, 87. Practitioners in criminal cases make similar generalizations based on such factors. It is commonly believed, for instance, that African-American jurors view the death penalty less favorably than their white counterparts. 1

The point is not to say that these generalizations are evil or even inaccurate. But it suffices to say that racial profiling, while not exactly invented by trial lawyers, is alive and well in the jury selection process.

Historically the peremptory challenge allowed a lawyer to strike a certain number of prospective jurors without having to state a reason. The peremptory challenge in the United States is said to have been used by states to resist the desegregation forced upon them by the federal government. Morris B. Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L.Rev. 809, 849 (Summer 1997). The original purpose of the peremptory challenge in England was to balance the playing field against the Crown’s unlimited ability to eliminate prospective jurors. However, Judge Hoffman argues, the peremptory challenge in America has no such noble purpose because of our racial history. Id. at 844. Once the civil rights movement resulted in elimination of Jim Crow laws enforcing segregation, Judge Hoffman contends, the peremptory challenge continued to serve as an efficient final racial filter to ensure all-white juries. Id. at 829. The case against peremptory challenges on racial grounds may be a bit overstated because, irrespective of its use in some jurisdictions to deny African-Americans full participation in the legal system, it remains well entrenched in jurisdictions that have no history of resistance to civil rights.

Perhaps we are comfortable with our generalizations. What if a trial lawyer infers from the social sciences that members of certain racial or ethnic or religious groups are, on average, more likely than not to be favorably disposed to a client’s kind of cause? As a zealous advocate in an adversary system, the lawyer may, and arguably should, consider that characteristic in determining which potential jurors to strike. This is especially true where, as in Missouri, little trial time is given to allow the lawyers to question jurors extensively to determine their actual individual attitudes. The lawyers gain some minimal information about jurors’ attitudes and perceptions in the voir dire examination, but usually not enough to counter the preconceived notions that the lawyer brings to the courtroom.

*159 The peremptory challenge brings up a tension between two of a prosecuting attorney’s ethical duties — the duty zealously to represent the client 2 and the duty to seek justice, not merely to convict. 3 If the enforcement of Batson is lax, then it is fairly easy for the prosecuting attorney to let the duty zealously to represent the client override the duty to seek justice. Preventing racial discrimination in jury selection is part of seeing that justice is done. See Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629 , 79 L.Ed. 1314 (1935). But this part of justice may not be done where the prosecutor believes that justice requires conviction of the defendant, although this belief should not trump other ethical norms.

When prosecutors use their peremptory challenges to strike African-Americans from the jury panel, a Batson challenge frequently results. The burden is placed upon a prosecutor to give a racially neutral reason for the strike. State v. Jones, 979 S.W.2d 171, 185 (Mo. banc 1998). Accepted racially neutral reasons may include that a juror seemed “uncommunicative,” or “never cracked a smile.” Batson, 476 U.S. at 106 , 106 S.Ct. 1712 , (Marshall, concurring opinion). If such reasons are sufficient to justify the prosecutor’s strikes, then the protection of Batson is illusory, just as Justice Marshall predicted. Id. Moreover, the question of race may be inextricably bound up in other attributes of a prospective juror, employment status, for example, that may justify the strike. Appellate decisions, to illustrate the example, have upheld exclusion of African-Americans because of employment as postal workers. See State v. Pepper, 855 S.W.2d 500, 503 (Mo.App.1993), and State v. Hudson, 822 S.W.2d 477, 481 (Mo.App.1991). I am not sure I understand what an attorney would have against postal workers, but it is a more or less race-neutral reason.

Examining this Court’s death penalty cases from the state’s three largest jurisdictions, the city of St. Louis, St. Louis County, and Jackson County since the death penalty was reinstated in 1977, the following are found: 12 of 26 cases in the City of St. Louis, seven of 17 cases in St. Louis County, and four of 12 cases in Jackson County contained Batson challenges. None of Batson challenges were successful on appeal. In examining all reported criminal appeals since 1995 that contain Batson challenges, it appears that there have been about 100 such cases. Of those concerning race, two were remanded to the trial court to conduct a proper Bat-son hearing. 4 Only one reported case was found that was remanded for new trial because the appellate court sustained the Batson challenge. 5 If Batson has any effect in this state, it is simply trial court law where even rumors of sustained Batson challenges are hard to come by.

Large-scale empirical studies seem to be lacking as to the effect of Batson on racial discrimination. But studies examined to date show either no effect or only a very limited effect on the use of peremptory challenges to discriminate. David C. Bal-dus, The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, U. Pa. J. Const. L., February, 2001, at 34. A study of capital *160 murder cases tried by juries over a 16-year period in Philadelphia found that Bat-son had no effect on prosecutorial strikes against African-American venire members. Id. at 70.

Apparently the most substantial effect of Batson in Missouri, I regret to say, has been to call into question the actions of the two trial judges in this case. In addition to the opinions in this case, see State v. Smulls, 935 S.W.2d 9 (Mo. banc 1996) and Smulls v. State, 10 S.W.3d 497 (Mo. banc 2000). It is a matter of unfortunate irony that Batson apparently has had little or no effect on preventing racial discrimination in the use of peremptory challenges.

The only way to eliminate completely racial profiling in jury selection is to eliminate the peremptory challenge. Justice Marshall advocated this position in Batson, 476 U.S. at 107 , 106 S.Ct. 1712 , and Justice Goldberg hinted at elimination of the peremptory challenge in his dissent in Swain v. Alabama, 380 U.S. 202, 244 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965).

Complete elimination of the peremptory challenge is a drastic remedy, and one that I am reluctant to espouse. Instead of complete elimination, the legislature might consider at least a drastic curtailment of the number of peremptory challenges. Section 494.480 allows nine peremptory challenges per side in death penalty cases. These strikes occur after the challenges for cause remove any prospective jurors who would not impose capital punishment. 6 So, in each case there is a panel of citizens who have indicated that they will be able to impose the death penalty if the facts justify it. Then, from that “death penalty qualified” group, the state is permitted to strike nine of the prospective jurors for no reason. This may eliminate just about everyone who might even look like they could give a capital defendant the benefit of a reasonable doubt. Does the state really need to strike nine of its citizens in order for the state to receive a fair trial, even after a jury panel is “death penalty qualified?”

A system that allows many peremptory challenges is open to manipulation by the defense as well. The popular press has many examples. See Dominick Dunne, Justice: Crimes, Trials and Punishments (2001). Perhaps, as Dunne reports, the prosecutor wants “twelve fascists,” and defense counsel wants “twelve bleeding-heart liberals or weirdos, with the assumption that they will arrive somewhere in between.” Id. at 15. Is the result really a fair trial before a jury drawn from a reasonable cross-section of the community?

In cases that may involve imprisonment, but not death, each side is given six peremptory challenges, and two per side where there would be no prison sentence. In a death penalty case, at least 18 citizens 7 show up and undergo voir dire examination and are sent away for no stated reason. This is a waste of time. For a juror to discern that his or her race may have been a factor is to add insult to the waste-of-time injury. This is not a proper way for the state to treat its citizens, especially those who come when summoned for service. If we, as a democratic society, believe the jury system is essential, then we ought to foster respect for *161 this service. See State ex rel. Linthicum v. Calvin, 57 S.W.3d 855 (Mo banc 2001) (separate opinion of Wolff, J.).

We depend on the challenge for cause to remove prospective jurors who are biased or otherwise unsuitable for a particular case. The benefit of the peremptory strike is that it helps ensure a fair trial when the trial judge is wrong in overruling a challenge for cause. In fight of the deference appropriately given to trial court rulings, a trial judge can be incorrect in overruling a challenge for cause without committing reversible error. But how many safety valves are needed for a fair trial? Nine or even six peremptory challenges seem wildly excessive. On challenges for cause, as in many other trial events, the correctness of trial court rulings is appropriately assumed. One or two peremptory challenges should be enough.

If the number of peremptory challenges were reduced to one or two, juries in racially diverse counties would more likely be representative of the community. More importantly, such a move would drastically reduce the often subtle yet always insidious racial discrimination inherent in many peremptory challenges.

. The Gallup Poll last year noted, in reporting on public support for the death penalty: “Traditionally, non-whites have been much less supportive than whites, which is not surprising given the attention that has been paid to racial disparities in death sentencing. Roughly 70% of whites favor the death penalty in recent polls, while less than a majority of non-whites do.” Jeffrey M. Jones, Two-Thirds of Americans Support the Death Penalty, Gallup Poll News Service (March 2001) available at www.gallup.com.

. State v. Johnson, 702 S.W.2d 65, 69 (Mo. banc 1985).

. See generally Comment to Missouri Rule 4-3.8. (Rules of Professional Conduct).

. State v. Nathan, 992 S.W.2d 908 (Mo.App.1999), and State v. Dunn, 889 S.W.2d 65 (Mo.App.1994).

. State v. Davis, 894 S.W.2d 703 (Mo.App.1995).

. A prospective juror is removed for cause if his or her views would "prevent or substantially impair the performance of his duties as a juror ....” State v. Six, 805 S.W.2d 159, 166 (Mo. banc 1991), citing Wainwright v. Witt, 469 U.S. 412, 424 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985).

. The number is usually more than 18 because peremptoiy challenges are also allowed when alternate jurors are being selected. It is possible, but not likely, that some peremptory challenges will be unused.