Batson (A Footnote to Sandy Levinson)

Jason Mazzone

A small footnote to Sandy Levinson's insightful post on the separation of criminal law and procedure from constitutional theory. A few years ago I wrote a short paper on remedies for Batson violations. The impetus for the paper is that in Batson the Supreme Court did not identify the proper remedy for a Batson violation. The Batson Court addressed remedies in a single ambiguous footnote that identified two possible remedies: discharging the venire and selecting a new panel or reseating the improperly stricken juror. This footnote did not, however, specify whether these were the only permissible remedies, and it did not explain when one of the two is more appropriate than the other. (Subsequent Supreme Court cases also have not clarified what the appropriate remedy is for a Batson violation and the Court has never overturned a remedy imposed by a trial judge.) I was interested in exploring the kind of remedies trial judges have imposed and identifying any relevant differences between the practices of federal and state courts. I soon faced a problem: although Batson challenges are not uncommon, it was very hard to find instances where trial judges ever got to the remedy question because almost all challenges failed. In the course of the project I contacted hundreds of prosecutors and defense lawyers around the country to ask them to tell me of cases where they themselves had encountered a successful Batson challenge or to tell me about cases they knew about in which a trial judge had reached the remedy stage. The overwhelming response, even from trial lawyers with decades of experience, was that nobody knew of any successful Batson challenge. The lawyers I spoke with also had a fairly consistent explanation as to why Batson challenges failed: a judge who holds that Batson has been violated is ruling that (a) the attorney standing before the court discriminated on the basis of race and (b) when asked to explain his actions, the attorney (offering up a race-neutral reason for the strike) lied to the court. Few judges want to label lawyers who appear regularly before them bigoted liars. Here, then, bridging the divide between criminal and non-criminal cases in constitutional law is instructive. Batson represents an unusual context in which the specific state actor alleged to have violated equal protection is right there before the judge (and will be again tomorrow and next year). This isn't usually so in other kinds of equal protection cases: the lawyer is there only in a representative capacity and if an equal protection violation is found to have occurred it isn't the lawyer who is smeared. The failure of Batson (if failure there is) might well lie in the Court's own failure to recognize the impediments to applying equal protection when the alleged bad state actor is also the attorney arguing the case.          
Posted 11:00 AM by Jason Mazzone [link]