August 26, 2013
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.’ ”