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Why race is hard to erase from jury selection

Danny Cevallos | 11/9/2015, 8 a.m.
I have a confession.

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.