Saturday, June 20, 2015

Davis v. Ayala: Race and Criminal Justice in America, 2015

Mark Graber

The Supreme Court’s recent decision in Davis v. Ayala may provide a more interesting and important window on race (and criminal justice) in America than the more publicized decision on whether the Confederate Flag may appear on state license plates.  Davis has garnered a good deal of national attention for the colloquy between Justice Anthony Kennedy and Justice Clarence Thomas on the constitutionality of solitary confinement for long periods of time, a constitutional issue not raised by anyone in this case. Missing from public debate is concern over the disturbing aspects of this case at the intersection of the race and criminal justice.

Hector Ayala was tried in San Diego for three murders committed in 1985. Justice Alito’s recitation of the facts begins by noting that more than 200 jurors were available for service.  Some were excused after filling out forms, leaving only seven Hispanics and African-Americans in the jury pool.  The precise number of jurors left in the pool at that point is not clear, but the total for various reasons had to be more than 50.  Needless to say, Hispanics and African-Americans constituted far more than 14% of the population of San Diego at that time.  No opinion comments on the relative dearth of Hispanics and African-Americans in the jury pool. 

The prosecutor then strikes all seven Hispanics and African-Americans from the jury using preemptory challenges.  The defense attorney objects, claiming that the evidence demonstrates these challenges were exercised on the basis of race in violation of Batson v. Kentucky (1986).  The judge insists on a Batson hearing.  The prosecutor asks that the hearing be ex parte in order not to reveal trial strategy to the defense.  The trial judge agrees.  The prosecutor then informs the judge that the jurors were stricken because they appeared to be opposed to capital punishment, gave rambling answers to questions and did not seem to get along with other jurors.  None of these comments has anything to do with trial strategy, as the California Supreme Court recognized when declaring that the ex parte hearing was constitutional error.  In short, the prosecutor lied  or made misrepresentations to the court in order to get an ex parte hearing which will determine whether the prosecutor has lied or made misrepresentations to the court about the reasons for striking all Hispanic and African-American from the trial jury.  No opinion observes that maybe this prosecutor is not the most trustworthy of souls.

The judge accepts the prosecutor’s assurance that race played no role in the decision to exclude all Hispanics and African-Americans from a murder trial held in San Diego during the late twentieth century.  After a long round of appeals, the case winds up before the Supreme Court.  Justice Alito and his fellow conservatives assure us there is nothing constitutionally to worry about because counsel was excluded from a Batson hearing.  True, they admit, a number of potential white jurors made strong anti-capital punishment comments and a number of potential white jurors gave rambling answers to questions (and most of the questionnaires were lost, so how many gave rambling answers cannot be determined), but much of voir dire is instinctual and prosecutors are permitted to play hunches on tiny bits of evidence.  The prosecutor said the challenges were for race neutral reasons and prosecutors would never lie or make misrepresentations to a judge (or lie or make misrepresentations more than once to a judge).  Apparently, defense counsels who challenged the veracity of prosecutorial accounts of their decision process are rude fellows.  Besides, the judge trusted the prosecutor.  And if a judge trusts a prosecutor, there really is no need for defense counsel, particularly when judge saw the trial and had access to the record.  No doubt the next precedents will hold that harmless error occurs when a defense counsel is excluded from a suppression hearing (the judge can tell whether a police officer is telling the truth) or prohibited from making a closing argument during a bench trial (the judge witnessed the whole trial).  

The bottom line is that ensuring white-only juries is getting easier and easier.  First, you claim trial strategy and exclude defense counsel from the Batson hearing.  Then you point to a difference between the answers given by a potential juror of color and a potential white juror.  You detected more hesitation when the potential juror of color stated he or she would impose capital punishment.  You felt the potential white juror more willing to look you in the eye.  If your trial judge believes you, you are home free.

One of my most distinguished colleagues recently said that criminal justice will be the civil rights issue of the future.  With all due respect, she is wrong.  As the lack of response to the substance of Davis v. Ayala demonstrates, no one cares if the United States is slowly moving back to the days of all-white juries.  A Supreme Court that declares a right to same-sex marriage will be lionized and free to do what they want in the criminal justice system.  The civil rights issue of the future will concern the concerns of the upper-middle class, not the fate of the Hector Ayala’s of the world.

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