August 26, 2013

Race is the issue of the day

The Supreme Court unanimously affirmed three death penalty judgments today. (Here, here, and here.) There is notable dissonance in those cases, however, particularly in the concurring opinions of Justice Liu, concerning the issue of racial discrimination in jury selection.

The United States Supreme Court’s opinion in Batson v. Kentucky (1986) 476 U.S. 79 forbids the prosecution from using peremptory challenges of prospective jurors based on the jurors’ race. The California Supreme Court finds no Batson violation in any of today’s death penalty cases, but, in concurring opinions of 41, 29, and 6 pages, Justice Liu takes strong issue with the court’s method for reviewing Batson error claims.

Justice Liu concludes that the court’s “Batson jurisprudence . . . appears noticeably out of step with principles set forth by the United States Supreme Court.” He also finds it “quite remarkable” that, “[i]n the 102 cases where this court has addressed a Batson claim over the past 20 years, we have found Batson error only once — and that was 12 years ago.” And his opinion in one of the cases — People v. Harris — includes a chart listing the 102 cases.

Justice Liu also states in candid terms the importance of the issue for him: “Today, as when Batson was decided, it is a troubling reality, rooted in history and social context, that our black citizens are generally more skeptical about the fairness of our criminal justice system than other citizens,” and the reason for the Batson rule “is precisely to ensure public confidence in our courts and their verdicts.”

The majority, on the other hand, is not troubled by the way it’s been reviewing Batson claims, concluding that “our past precedent will ‘guide us until the United States Supreme Court articulates a contrary rule.’ ” It also finds unconvincing Justice’s Liu’s 102-case survey because “trial court rulings sustaining a Batson/Wheeler objection rarely if ever see appellate review or even mention in an appellate opinion; only trial court rulings finding no improper use of peremptory challenges are reviewed in appellate opinions.”

Justice Liu’s criticisms made an impact on one colleague, however, at least in part. In her own concurring opinion in Harris, Justice Kennard reports that she has changed her mind about one Batson issue, stating, “What comes to mind in this change of view are the oft-quoted words of United States Supreme Court Justice Felix Frankfurter: ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’ ”

One Response to “Race is the issue of the day”

  1. […] In retrospect, this may well be remembered as the year that Goodwin Liu truly came into his own as a jurist.  You will recall that Governor Brown is rumored to have appointed Liu with the intention that he would be an intellectual force on the Court in the same way that the late Roger Traynor was a half century ago.  Comparisons to Chief Justice Traynor aside, Liu has found his own voice: according to Uelmen, he drafted nine opinions, 15 concurring opinions and nine dissents in fiscal 2013.  Moreover, intellectual rigor does seem to be a hallmark of his jurisprudence.  Uelmen flagged Liu’s concurring opinion in People v. Barrett (2012) 54 Cal.4th 1081, 1114-1151, as the best opinion of the year.  Not only that, but Green notes that Liu “ended the term with a bang, characterizing in two concurrences his colleagues’ approach to claims of discrimination in jury selection as lax, speculative and lopsided in favor of the prosecution.”  (See Green’s August 27, 2013 article, “Liu blasts court for pro-prosecution bias in death penalty cases,” for an in-depth discussion of those cases.  We discussed Justice Liu’s concurrences in those cases here.) […]

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