an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Davis v. Ayala: Race and Criminal Justice in America, 2015
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.
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.
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.
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).
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.