Supreme Court History in 'More Perfect': The Battle Over Batson

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By Casey C. Sullivan, Esq. on September 09, 2016 11:57 AM

Thirty years ago, the Supreme Court decided the case of Batson v. Kentucky, ruling that dismissing potential jurors solely because of their race was unconstitutional and putting one of the first limits on the otherwise unrestrained use of peremptory challenges.

Depending on who you ask, Batson was either a triumph or a farce, a sign of the legal system's commitment to fair trials or a toothless opinion that has been easily evaded. In today's recap of "More Perfect," NPR's Supreme Court podcast, we look back at the people behind Batson and the debate the landmark decision still engenders today.

More Perfect No More

As summer ends, so too do our recaps of "More Perfect." This week's recap marks the final episode, "Object Anyway," of the inaugural run of the podcast.

So, before we jump too far into this episode, our verdict on the whole "More Perfect" project itself: it's good. The podcast excels at bringing out the largely overlooked histories of Supreme Court cases, humanizing the people and conflicts that, by the time they make it to the Supreme Court, are often abstracted or overlooked.

Sure, we have our criticisms. It is very NPR: sometimes a bit too anecdotal, a bit too naïve, a bit too cutesy. (Jad Abumrad opens the last episode by saying it's "about a guy who ... who is Supreme Court famous," to which the reporter Sean Rameswaram responds, "Yeah, he's in the books. He's, like, a chapter.") It often leaves the interesting and important legal issues unexamined. But what it does do, it does well. Here's hoping for a second round.

Now, on to Batson.

Before Batson Challenges, There Had to Be James Batson

  • James Kirkland Batson, the Batson of Batson, grew up in Louisville, Kentucky. He attended vocational school to learn electrical engineering, was an A student, and even got a perfect attendance award in Sunday school, at the age of 18. But he was also in Louisville's West End, a rough neighborhood full of crime and "fast money."
  • Fast money had its effect on him, and James soon started to pursue petty crime. He became a "pants pocket burglar," stealing only what he could take with him in his pockets.
  • In 1982, Batson was pulled over and accused of committing a burglary. Since the evidence against him was scarce, he demanded a jury trial.

Batson on Trial

  • Joe Guttman was Batson's prosecutor. He was relatively new to the prosecutor's office. Batson came to him during his first six months there, but after he'd already lost his first eight trials.
  • Batson was his ninth loss. Batson got a hung jury after the one black jury was the only hold-out who refused to convict.
  • Guttman retried the case, this time exercising his peremptory challenges to strike all non-white potential jurors.
  • Batson was in the court during voir dire and demanded that his attorney object. When the attorney told him that he couldn't object to the strikes, Batson's response was "I don't care, object anyway." The lawyer did. The objection went nowhere and Batson was found guilty -- and sentenced to 20 years in prison.
  • On appeal, Batson's lawyer, David Neihaus with the Jefferson County Public Defender's Office, looked into the practice of using peremptory challenges to keep minorities off juries, and found it pretty much everywhere.
  • In a relative rarity, Neihaus, a local public defender and not a professional Supreme Court litigator, actually argued the case before the Court.
  • That argument ended up giving us the Batson challenge. To this day, James Batson still brags that he's the namesake of the Batson rule, on occasion.

Making Jury Selection More Entertaining

  • But Batson isn't incredibly strict. It only prohibits deliberate racial discrimination. Parties exercising the peremptory strikes can often evade the rule simply by providing an alternative justification.
  • "I used to tell people, 'Batson's not going to eliminate racial bias in jury selection, but it will make the jury selection process a lot more entertaining," the Equal Justice Initiative's Bryan Stevenson recalls.
  • In response to the Supreme Court's Batson decision, prosecutors throughout the country started to train each other on how to get around Batson. You can even watch some on YouTube.
  • Children, residence, employment history, body language -- all have been cited as race neutral reasons to eliminate minority potential jurors. Even looking like a defendant can be a race neutral reason for a peremptory strike.
  • In Washington State, for example, out of 46-50 convictions challenged on Batson grounds, only one conviction has been overturned. In Tennessee, the state has not reversed a single case under Batson, according to the podcast. In many places, jury diversity hasn't increased by any meaningful measure since Batson was decided 30 years ago.
  • Some argue that the best way to avoid discriminatory strike is to end peremptory challenges altogether -- something Justice Thurgood Marshall called for himself in his Batson concurrence. That's an option, however, that very few lawyers support.
  • Of course, Batson isn't entirely without teeth. This spring, the Supreme Court tossed out the conviction of Timothy Foster after a public records request revealed that prosecutors had, fairly blatantly, targeted black members of the jury pool because of their race.

If the legacy of Batson is a bit muddled, at least the story of James Batson has a relatively happy ending. Batson and his former prosecutor, Joe Guttman have mended fences. "I talk to him all the time," Batson says. Guttman left the law in 2001 and became a teacher in a primarily black high school. Batson wrote a book on prisons and tracked Guttman down to give him a copy. They're now good friends.

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