Radiolab - Radiolab Presents: More Perfect - Object Anyway

Episode Date: November 22, 2016

At the trial of James Batson in 1982, the prosecution eliminated all the black jurors from the jury pool. Batson objected, setting off a complicated discussion about jury selection that would make its way all the way up to the Supreme Court. On this episode of More Perfect, the Supreme Court ruling that was supposed to prevent race-based jury selection, but may have only made the problem worse. Support Radiolab by becoming a member today at Radiolab.org/donate.        

Wait, you're listening. Okay. All right. You're listening to Radio Lab. Radio Lab. From W. N. Y. C. See?

Yeah. Hi, I'm Robert Krollowich. This is Radio Lab. And this week we're going to do something a little unusual. I don't know how many of you know that earlier this year we launched a spectacularly successful, I should say, a spin-off from Radio Lab. Sean Ramos Faram was a correspondent on the show. I was, yeah. And tell us what it was called.

It was called More Perfect. It was a podcast about the Supreme Court of the United States. And what about the Supreme Court of the United States? Oh, you know, all of it. Race, class, gender, sex, money, power, religion, how the institution deals with these issues that sometimes divide this nation. Yeah, it's also filled with people stories and judges just. There was one where, God, a judge nearly went out of his mind.

Anyway. It's a good one. Yeah, it was a good one. And by the way, since so many people have been writing all the time about what's going to happen to the more perfectly want more and more perfect, are there going to be any more? I can, in fact, confirm there will be more, more perfect. You can. Expect details, please. Expect when.

We're working on a bunch of episodes right now. They should be coming out in the spring of 2017, probably May. Okay. And until then, we would recommend, if you haven't heard all of the ones we did this year, go to radio lab.org and they're waiting for you. I know we've put a few of these more perfects on our podcast feed before. This is the first time for this one on Radio Lab. One of my favorites. So here it is from our podcast, More Perfect.

Object anyway, which you won't. More perfect. The honor of all the chief justice and the associate justices of the Supreme Court of the United States. Oh, yay. Persons having business before the honor for the Supreme Court of the United States are admonished to draw near and give their attention. All right. All right.

But the court is now sitting. Oh, yeah. God's sake, the United States in this honorable court. Yeah. All right, let's do it. Yep. Hey, I'm Chad Haboomrod.

This is More Perfect, mini series about the Supreme Court. And today's story from a reporter, Sean, I always F up your last name. Can you just say it? Ramos firm. Ramos firm. I always put the accent in the wrong place.

Anyhow, let me set the table for you. We live in a representative democracy. And what does that actually mean, practically speaking? Like, when do we come in, contact with that democracy. Two places, it seems to me, mainly. One, when we vote, right? Yeah. Are you asking me? Yeah. I was deep in thought, if you vote. If you vote, it's true. I know, like, college-educated, super progressive human beings. So we're like, why would I ever vote? It doesn't mean anything.

Exactly. Not to mention people who just don't even care about the world. Yeah, it sort of makes my point. Like, voting is the first way, and for a lot of people, it's entirely optional. The second way is not you will be fined if you don't do it. And I mean, serving on a jury. This is where like we the people decide who goes to jail, who gets free, who lives, who dies. This is where we actually do democracy. Today, we start with the story of a guy who is Supreme Court famous, would you say? Yeah, he's in the books. He's like a chapter. Yeah, he's like one of the most important names you've never heard of because he's at the center of this ongoing battle about who gets to serve on juries.

And his name, depending on who you are, either symbolizes the best of the best of. best parts of American democracy, or the most cynical. Should I say his name? Yeah, go for it. James Batson. James Kirkland Batson. Hey, hello. James?

Yeah. Sean. I went to his house in Louisville. Tell me your full name and tell me where you're from and that bitch. James Batson, Louisville, Kentucky. James Batson, his name just kept coming up over and over again when I was looking through the history of jury selection in America. So I called him up, and I was like, hey,

I'm this radio reporter in New York City and I'm really interested in your case because there's this other case before the court right now could I come talk to you? And he was like, yeah, sure. Okay, make sure my full name and city mentioned. He's tall, he's built like a fridge,

he is a black man. Right now I drive a truck, local and cross country. The far as I've been, it's 15 hours of one way. Where is that? Florida. As a kid, he was an A student. He graduated from Aaron. Technical House.

He was in a vocational school specializing in electrical engineering. Industrial electricity. He seemed pretty popular. In fact, I got a perfect tennis award of Sunday school when I was 18. Shortly after that, it seemed like the bottom fell out. So James Batson grew up in the West End of Louisville in the 1970s, and the West End was super rough. People selling dope, prostitution, just everything had to do with fast money. And at a young age, the fast money was like the American dream.

I mean, it's pretty hard when a lot of people around you got nice things, and they got them because they're doing something illegal. And you keep coming up with rabbit hairs. You're shaking your head like you know what rabbit ears are. What a rabbit is? You pull both your pockets out, and ain't nothing in neither one of them. He said it all started when he was 10. He wanted a pair of shoes.

He couldn't afford them. Well, when they first came out, if you didn't have a pair of those, you had on what they called buddies. What were buddies? Cheap tennis shoes. Him and his brother asked his mom for money, and she gave them some money but not enough. So to make up the difference, they went out and they stole people's empty soda bottles and turned them in for, like, the deposits. Three cents are a nickel apiece. Stole enough pop bottles to get Chuck Taylor's.

That was my first experience with illegal money, stealing pop bottles. bottles. So everything else is advanced from there. Fast forward a couple of years, James is more grown up. He starts doing some petty crime and he starts breaking into houses. They actually gave me a name. Called me the pants pocket burglar. When the crime would happen, burglar would take only stuff could fit in his pocket. Like purses and jewelry.

No merchandise. If he didn't fit in his pocket, he wouldn't take it. That was you? I'm not admitting that was me. Possible deniability. Those are his two more names. But I'm asking you, was it you? I take the fifth.

So James starts stealing bigger things, and he starts getting arrested, starts going in and out of the courts. And then one of those small in-and-out cases became, I think, American legal history. They got me out of a car. 1992, cops pull him over. They pulled me out of the car. They said, you have a right to remain silent anything. I went through that little protocol, whatever.

They tell them... Some burglaries that happened in that area. And they said, I did. Were you stealing stuff at the time? Yeah, at the time, I had been doing some burglaries or whatever, but anyway. The James said he didn't do this one, and that they didn't have the proof. He was just driving around in his car, and they picked him up. When they arrested me, I'm thinking they didn't really have a case against me.

They didn't catch me breaking into a house. He got me out of a car, and no fingerprints nowhere. He thinks he can win. I feel like I could beat the case, so I'm like, I'm on a jury trial. And the mere fact that you and I are talking about, about James Batson's case, 30 plus years later, is amazing. That's the prosecutor. My name is Joe Gutman.

I'm from Louisville, Kentucky. I grew up in Louisville, raised in Louisville. Wanted to be a lawyer since he was a kid. My parents went through a divorce when I was very young, and I wanted to go to law school to help kids and divorces. 1982, when Joe Gutman first gets the Batson case, he's 26 years old, and had just become a lawyer. James's case was in the first six months that I was.

was in the prosecutor's office. Pretty impressive first year. Um, no. Starting out, I lost my first eight trials. Really? Yeah. He says when he saw Batson's case, you know, this low-level burglary. A break-in of a house and a purse being stolen.

He was like, oh, maybe this will be my win. The evidence appeared that he was guilty of the crime. James was accused and identified as the one as having done it. Two eyewitnesses, they're saying James did it, but James is saying, no, I didn't. You don't have any proof. He says the cops probably showed these witnesses' photos of him before, because that he never seen them before in his life. So, so Gumbent's on the case, it goes to trial, and...

Had a hung jury? They ended up being a hung jury. Hipp, hooray. It means they couldn't come to a unanimous decision, so James gets off. Why was it a hung jury? Well, in Kentucky, you have to have a unanimous verdict. So the defense is looking for that one juror that keeps from convicting. There was apparently one juror who just didn't buy it, didn't buy the evidence, and thought James was legit.

It was a black woman. One black lady came to visit me after the jury was over. She said, I really, really don't think you're guilty. The rest of the jury was trying to make me say that she was guilty, and I was saying not guilty. So it ended up being a hung jury. I was disappointed. At that point, I was having second thoughts about, you know,

is this the right career for me? So Joe Gutman, he says, I'm going to try this case one more time. It was pretty close to guilty. I had this one jury who hung it up. So let me do it one more time. and he does something this time a little differently. Just to set it up, as you know, when you get a jury summons, you go in, you're on a jury pool, and at the beginning of a trial,

call rise, four times, you have jury selection. You and each of you do solemnly swear or affirm that you will true answers make to such questions as may be asked you touching your qualifications. That's where both sides, the prosecution, the defense, sometimes the judge, they get jurors into a room and they start asking. asking lots of questions. Is there anyone here who's been the victim of a crime?

Have any of you had family members that have been victims of crime? Okay, I saw a couple of hands. They start interviewing jurors. Do you have any opinions one way or the other about the criminal justice system in general? To figure out which jurors do we want. Do you have any kids? I do. Are you a member or are you involved in any organizations?

I'm a member of a church. Which jurors do we want to get rid of? And that's the more important part of this process. Which jurors do we want to toss off this jury pool? You ever in the military? No. So what are the rules to get rid of jurors? There's two ways to get rid of jurors to get down to that group of 12 in this case.

And the first way is called striking for cause. The state would move to excuse him for cause at this time. Striking for cause is like when they ask you, can you be fair in this case? If you say, you know, no, I really can't. I have really strong feelings about the people or the subject matter. That's a strike for cause. Or it's like, hey, that lady who's sitting in the chair? the defendant, that's my cousin.

We grew up together. Oh, like conflict of interest? Blatent conflict of interest. That's my boss. We go out every Saturday for brunch, whatever it is. You're too close to this. You can't be fair. Got it.

So that one's cause. That's pretty much common sense. It makes sense to everyone. But the second way is the heart of this whole matter, this whole story. It's called a peremptory challenge. Preemptory or preemptory? Not preemptory. Peremptory.

That's a word? Depending on how you punch it into Google, it'll be. like that's a typo son. What does it mean? What does peremptory mean? A peremptory challenge means you get a certain number of strikes just to get rid of people you think might not be fair to you, but you can really use them any way you want. And with these strikes, you don't have to give any reason. Wow. And how many of these do you get? So it varies from state to state. In some states it's 20. In other states, it's four. In Kentucky, then and now. Each side gets eight, eight jurors, that they just get to put the X on and say, you're not going to.

to sit on this trial hook or crook. And they don't have to explain themselves at all? They don't have to explain anything. And this isn't just some weird legal rule we made up like 20 years ago. This is something that has been around. It's older than America. Goes back to England in the 11th, 12th century. And before that, some say it goes back to like 104 BC Roman times.

Really? Really. And the idea is I feel like the visualization is like a seesaw. Like, okay, we need to get to this perfect group of 12 people. And, you know, there's going to be people who are biased to either side. So each side gets to eliminate people. You get three, you get three. You get four.

You get four. And then we'll come to this balance in the jury of a group of people who are going to be fair. So if both sides are sort of trying to tilt it their way from either side, the thinking is it'll end up balanced. Yeah. And also the thinking was that this would give both sides more faith in the process and at the same time protect both sides from like the tyranny of a trial judge who has too much power. Gotcha. Okay. And yeah, what happens in this case is the second trial begins. So take me to the moment of jury selection, which is I imagine early.

Yeah, that's the first thing that happens. So we'll set a scene. Well, the only people that were in the courtroom were some family members of Mr. Batson. His attorney. A detective and me and the jury. So the reason we're talking about this case and Joe Gutman and James Batson is because the next thing that happens is Joe Gutman gets up there. He scans the jury pool and at this point he says there were 13 people left, four that were black, nine that were white, and he uses his peremptory challenges to strike off one, two, three, four black jurors. They're all gone, leaving an all-white jury.

Do you remember striking for minority people off this jury? Well, I mean, I did. Do I specifically remember the reason for each? No, I don't. I asked Joe, was the reason because they were, in fact, black? No, I can say that they were not stricken because of race. And I remember specifically that one of the jurors lived in the neighborhood. He doesn't exactly remember what his reasons were for all four black jurors,

but what's important for our story is to know that James Batson is sitting there in the room as all of this is happening. And I'm like, ah, just completely, it struck out of black. off the jury pool. It ain't right. I told my lawyer, I said, you object to that. Lawyer says, why would I object? James said, because it's not fair. He said, no, that's a long-standing rule. He's allowed to do that.

He could strike whoever he won't. Was he lawyer white or was he black? He was white. And was the judge white or black? He was white. And aside from those four people that had just been struck off the jury? Everybody in the courtroom was white. So again...

I told my lawyer to object. And again, the lawyer says... He said, no, I told you, you can't object to this. He said, what you mean you can't, you work for me, you do what I say, you object anyway. I don't care this long-standing rule, object. And he did. And it all came behind that one objection. It's one tiny moment.

Yeah. What happened is after the jury was selected, Doug Dale, James's attorney, said, Judge, I want to make an objection. We went up to the bench. He said, Your Honor, you can see there's an all way. jury, I would like for him to explain his strikes. But before I could get another word out of my mouth, Judge Ryan said Mr. Gutman does not have to explain his rights.

It's not the law. Let's move on. Move on. So they moved on with an all-white jury. And I got found guilty. I got 20 years. For burglary? Yes. So Batson goes to prison.

Danville, Kentucky. And he says his first move when he got there. Appeal immediately. And ultimately, his appeal ends up in the hands of this guy. David Nehouse, Jefferson County Public Defender's Office. And Nehouse decides to do something ambitious. What we did is we call it taking a tour of the jurisdictions. He like takes a legal road trip.

So Nehouse and his team start looking at other states, looking at other regions to find out whether this is a problem elsewhere. Is this just something limited to the South, or is it something else? You mean like are people in other places doing what Joe Gottman did and using peremptories to kick black people off of juries? Right, right, right, right. And what he found is that this was happening... ...Conson, Illinois, Michigan, Indiana, Kentucky, Ohio...

Pretty much everywhere. So they filed an appeal, which worked its way up through the courts and in December 1985... Thank you, gentlemen. The case is submitted. We'll hear arguments next in Batson against Kentucky. The case arrives at the Supreme Court of the United States. I get a call one day from the Associated Press. That's Joe Gopman.

Saying, how do you feel about the Supreme Court accepting the case of James Kirkland-Batson? And I was almost speechless. Were you sitting on the bench? I did go just to observe and learn. Mr. Nehouse, I think you may proceed whenever you're ready. Thank you, Your Honor. Mr. Chief Justice, and may it please the court. So here's how it ultimately went down.

That's inside, Niehaus. He argues that these strikes were being used to take black people off of juries, and that this was happening everywhere. We were able to list some 25 jurisdictions. And that the practice violated the 14th Amendment, which was equal protection, and the Sixth Amendment, which was a right to a jury of your peers. A jury that is as representative of the community as possible. So if Louisville is like 17% black, the jury should probably be about 17% black.

And the prosecutor shouldn't just be allowed to skew that without having to give a reason. First of all, Kentucky's response? To require an explanation of peremptory challenges would destroy, we believe, the historical nature and function of the device itself. So Kentucky's saying we shouldn't have to justify these strikes. The court has told us that again and again. It has always been unfettered and uncontrolled by the court. unexplained. And this practice goes back centuries,

and yes, there may be some abuses, but this is a tool that lawyers need. Thank you, gentlemen. The case is submitted. Four months later, the court delivers its verdict, and in a seven to two decision, Batson wins. The court found that the prosecutor's actions

for sure violated the 14th Amendment. They said racial discrimination of any kind in jury selection is not allowed. Cue Dan Rather. High Court rule today, it is illegal. TOTS illegal. Even on a preemptory challenge, it is illegal for a lawyer to reject the juror on the

basis of race. James Batson's sentence was immediately vacated. How'd that feel? Cane? It's undescribable. If you're in prison and you know, your sentence is being taken away. I mean, that's a great feeling. I still brag every day and then, and it's a conversation come up.

I could just be hanging out, playing chess. I got a law in the law books. Batson rule. And that was the biggest deal of all this, the headline. There was this new rule. The Batson rule. Named after him. Justice has put new limits on what is called preemptory challenge.

The Batson rule. The Batson rule is this echo of what James did in court that day. When you see people, minorities getting booted off of a jury, you can say, Your Honor, I think that's a Batson violation. Batson violation. And then the other side, be it the defense of the prosecution, has to provide non-racial reasons for why they eliminated that juror. And for a lot of people, this was a breakthrough. This was like, finally, we figured out how to do this right.

There was a system in place to protect everyone, and that system was even extended to civil cases and eventually to women as well. It was a big deal when the case was decided, and the initial elation was quickly tempered with a strong dose of reality. This is Jeff Robinson. He's the director of the ACLU Center for Justice.

Because what Batson prevents is deliberate racial discrimination. And almost immediately, all over the country, prosecutors started training each other, teaching each other, on how to get around Batson. That's Brian Stevenson. He's the director of the Equal Justice Initiative in Montgomery, Alabama. There were trainings all across the country. Some of these are on video date. And I found one. I mean, it's on YouTube. When you're picking a jury, you got to.

to stay to these basic rules. This is one of those videos. This one, it's a Philadelphia prosecutor named Jack McMahon lecturing to a room full of young prosecutors on how to pick a jury. You know, in selecting blacks, you don't want the real educated ones. And my experience, black women, young black women are very bad. There's an antagonism, I guess maybe because they're downtrodden on two respects. They've got two minorities, the women and they're blacks, and so they're downtrot

on two areas and they somehow want to take it out on somebody, and you don't want it to be you. The craziest thing about this video is that it was filmed just a few months after the Batson decision. Batson versus Kentucky, I'm sure you've all become aware of that case. Jackman basically tells these prosecutors, look. We've got this new rule. Here's how you break it. You strike the black person off the jury, but just say it's for another reason. Because that's what Batson requires is a racially neutral reason.

My advice would be in that situation is when you do have a black jury, you question them at length, And on this little sheet that you have, mark something down that you can articulate later time if something happens. So let's say you strike three blacks to start with, first three people. Write it down, right then and there. I'd write it right in my little box there. You know, the woman had a kid about the same age as the defendant, and I thought she'd be sympathetic to him, or she's unemployed, and I just don't like unemployed people because I find they're not too stable.

This is almost this training to create a catalog of reasons that on the face were race neutral. Just say you're excluding them because they're too tall. Or they're too old. Oh, that person was wearing a black sweater. Things like, well, he lives in a bad neighborhood. A person would maintain eye contact. Their body language. Or they belong to a church.

Tattoos. Or they're a nurse. Any of those reasons, have them walk down. As long as a prosecutor doesn't say, I excused that person because they're black. Batson says it's completely okay. I was actually working on a case. This is lawyer Brian Stevenson again. My office at the time was called the Southern Prisoners Defense Committee.

This was when I was in Atlanta, Georgia, before I moved to Alabama. And when was this? This was 1986. And we were defending someone down in Swainsborough, Georgia, by the name of Gamble. And the Batson decision came down. And objections were made when the prosecutor used his peremptory strikes to exclude all of the African Americans. And we said, wait a minute, Your Honor, there's a new decision. versus Kentucky, which means that the prosecutor can't do this. And the court said, well, I've read

Batson. What this means is that the prosecutor has to give race neutral reasons. And so the prosecutor says, I've got my race neutral reasons. He said, well, I struck this woman because she looks just like the defendant. The defendant was an African American man. We said, wait a minute. What is that? No, she does. And the judge said, oh, I see that. He said, I struck this. The judge said, I see that? Oh, yes, he did. What? The prosecutor said, I struck this man because he lives in South Swainsborough, and that's where the defendant lives. And we, of course, were saying, look, all the black people live in South Swaynesboro, all the white people, that's not a race neutral reason. And the judge said, no, that is a race neutral reason.

He said, I struck one person because this man was in the military, and he was discharged after five years in the military. And in my experience, Your Honor, you only get discharged honorably after an even number of years. Well, the juror was put back on the stand. We said, were you discharged from the military honorably? Yes, I was. I was actually decorated. I got this medal. I got this award.

I've got these things. Well, I still accept the prosecutor's reading for excluding that person. Oh, no. My favorite was the prosecutor said, none of those were your favorite. Oh, no, it gets better. It gets better. The prosecutor said, I struck this man because he testified that he was a mason. And he said, Your Honor, I just don't want anybody who's a member of a Masonic Lodge on my jury.

They have their own codes, their own rituals, their own culture. I don't want that. And the jury was put back on the stand. We asked the juror, are you a member of a Masonic Lodge? And the juror said, no, I'm not. said, I'm a brick mason. And the judge says, I still know what you mean. I'll let you exclude that person.

Oh, my God. Right? And so almost from the very beginning, there was this cynicism, this game playing. I used to tell people, Batson's not going to eliminate racial bias in jury selection, but it will make the jury selection process a lot more entertaining. Y'all should come to court and just watch the show. So you could argue that not only did Batson not change anything, but Batson made things worse.

As one lawyer, Stephen Bright, put it to me. I think what Batson is really is basically a set of procedures to sort of legitimize and cover up the race discrimination that's going on. You had this smelly, putrid problem of racial discrimination and jury selection, and instead of tossing it out, we just prayed for breeze all over it. He just kind of perfumed it vaguely. Sheep cologne. It's still there. It's just vaguely hidden.

And now with the Batson rule, if you think the prosecution or the defense is striking people off because of race, you have to call them out and then you have to somehow try and prove that the reason they're providing is a lie. And that's really, really difficult to do. Since 1986, for example, in the state of Washington, there have been probably 47, 48 challenges. on Batson issues where people have been convicted, and they've said, wait a minute, the prosecutors were excusing people of color from the jury because they were people of color. Out of those 46 to 50 challenges, there's been one reversal.

The state of Tennessee has not reversed a single case under Batson in the 30 years for it since the Batson decision came down. As a result, he says there's still many counties in America where the diversity of the jury has not increased very much at all. So, for example, in one Louisiana parish, they looked at felony cases over an eight-year period and found that nearly half the black jurors were struck. In Houston County, Alabama, over a five-year period. The data established that 80% of the African Americans qualified by jury service were struck.

80%? 80%? And that's in death penalty cases. So, I mean, if you think about that, like a big percentage of the time, these are lawyers who are going around the Batson rule, going around the law, going around the Constitution to get these all-white juries who are then oftentimes putting black men to death. And that reminds you of some pretty dark history. Yeah, wow.

Super basic question. Yeah. I mean, that video, training video, the assumption in that video is that having black people on the jury would hurt that guy, would hurt the prosecutor. Yeah. Is that, should we just assume that? Or, I mean, is there any data that would say that's even remotely true?

The hardest thing about looking at this stuff analytically is that juries are like a black box. They don't let journalists and academics in often to study what's going on. The jury's kind of sacred that way. Yeah. But the few times we've gotten data, like there's this group called the Capital Jury Project that looks at data specifically in capital cases because that's where this stuff ends up being life or death. So they looked at data in like 350 cases in 14 states over a number of years, and they found that white men are more likely to go for the death penalty than black men. When you get to sentencing that number, the difference between white and black gets really exaggerated.

Like white men are seven times more likely to want the death penalty than a black person. There's another study that was done in Florida, and this one looked at felony cases over like 10 years. And they found that all white jury pools in Florida convicted black defendants 16% more often than white defendants. Okay. But what was really interesting is like that that gap was practically eliminated when at least one member of the jury pool was black. Interesting.

So you put one black person in jury pool and that difference is annihilated. And could ask the obvious question, why? I mean, obviously criminal cases usually involve cops. And the reason that's often cited is that, you know, black jurors are less likely to believe. leave cops. Black jurors are more likely to insert some sense of suspicion into the states or the Commonwealth or whatever's testimony. And almost everyone I talked to gave me a version of this that, you know, when you have black people on a jury, they deliberate more and that black people

are less likely to trust law enforcement, especially Jack McMahon, who was the guy we heard from in that video. Well, listen, anybody knows me, knows I am about the anti-racist. person that you could ever imagine. I'm a stone cold liberal to the nth degree. But I was talking about practicalities of picking a jury back then, and I still stand by that. I mean, if you're a prosecutor, all right, let me and ask you this question. And you're trying to drug case, so speak, and you're, and the defendant is going to claim that the cops are lying, okay? And you're the prosecutor now. What? group has had more exposure to police lying than minority communities.

They have seen police lie and will believe police lie more than some white guy who lives in a rich area. He believes a police officer everything he says. And so if a prosecutor, you're trying to win the case, and that person's not going to be, a person is going to be more questioning of your witnesses, and you're given the opportunity through preemptory challenges to strike them. Why wouldn't you? It'd be a fool not to. Well, I guess I see the argument that, you know, use your peremptory challenges to get the best jury you can to win.

Right. But doesn't eliminating a black juror because you believe they might have certain biases against a police officer versus a white juror in some way violate the Equal Protection Clause of the 14th Amendment? No. I don't think so. Not at all. Because it's not because of the color of their skin. it's because of their demographics and who they've dealt with. It's a societal demographic concept. It's just a fact of life. It's just like... But I think those facts of life and those societal demographical concepts all stem from the color of their skin.

Well, well, that may be a deeper issue that we can't deal with in jury selection. You're right. But the reality is that that's what the situation is. So you're saying that if you're the prosecutor, you should say, oh, well, this guy will probably be worse for me. He probably believe those cops are lying, but I'm going to take them because I want to pull the, you know, come on. I mean, that's just not realistic. That's just there isn't a prosecutor in a country that would do that. Say, well, I want to show my altruism, and I'm going to keep this guy on my jury who may disbelieve my essential witnesses because I want to be altruistic.

I mean, come on. That's just not the way life is. Coming up. How to solve a problem like Batson. More Perfect, we'll continue in a moment. Oh, yay, oh, yay. Hi, this is Albert in the State College, Pennsylvania. Radio Lab is supported in part by the Alfred P. Sloan Foundation,

enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org. This is More Perfect, miniseries about the Supreme Court. I'm Chad Abumrad. I'm Sean Ramosferam. Let's just for a second explain how we got into this. whole morass about racial bias and jury selection. I think we should.

It's because of a case that was in front of the Supreme Court this term. Yep. You'll hear argument first this morning in case 148349, Foster v. Chapman. So basic facts, this is a murder case in Georgia. A younger black man kills an elderly white woman. The prosecutors dismiss a bunch of black jurors and the defense having this new Batson rule says, hold up, can't do that. And the prosecutors give these.

race-neutral reasons and the judge says, that looks good to me. And then years later, something sort of incredible happens through like one of those Freedom of Information Act type things, the defense actually gets to see the notes the prosecution had during the trial, the notes they kept during jury selection. This is one of those rare times when we pull back the curtain and we find out what the prosecutors were doing. This is lawyer Stephen Bright. He actually argued the foster case in front of the Supreme Court, later.

last year. And he says what you saw on these notes was that the prosecution, they literally wrote a little B-B-Nex to the name of each and every black juror. B-1, B-2, B-3, highlighting all the blacks and green on the list of all the people summoned for jury duty. It's like racial discrimination is really hard to prove. This is actual physical proof in a file in the state. Like, this is the smoking gun. We've been waiting for. So what did the prosecutor, how did the prosecution argue this in front of the Supreme Court? Prosecution was like, you know what? Actually, once the notes were found, they said, we were just writing those bees because we wanted to make sure we noticed the black jurors.

We wanted to keep track of them. The reasonable explanation in this case is four months prior to trial, defense counsel files a motion and says the strike of any black juror, we're filing a Batson challenge. That's the lawyer representing Georgia, Beth Burton. And she's saying, of course we're going to notice race. This is the post-Batson world. And we're going to. going to note race and we're going to write it down. I would be more surprised, quite frankly, if there wasn't some sort of highlighting or a In other words, the argument you're making here is that, is that the reason he highlighted all the black jurors in green?

He being the original prosecutor. And said black, what about the black jurors and did all these different things was because he was preparing a defense in case of a Batson challenge? Correct. That's Justice Breyer asking, well, why didn't you make that argument? like when the case was actually happening years and years ago. And it was not. And it was not.

So if that had been his real reason, well, isn't it a little surprising that he never thought of it or didn't tell anybody until you raise this argument in your main brief? And I would I would say that's on state habeas counsel. So the good news is that in a seven to one decision, the Supreme Court agreed that this prosecutor's reasons were utterly ridiculous. Well, isn't this as, I'm just going to ask you, isn't this as clear a Batson violation as a court is ever going to see? That's Justice Kagan.

I don't think it is. And the bad news is that this case was in front of the Supreme Court at all. It had to get appealed up to the highest court in the land before someone said, oh, yeah, that's a Batson violation. That's how hard it is. Yeah. And the Supreme Court, though it made a forceful decision. seven out of eight, they didn't make a new rule.

They said, this isn't how it works. They didn't offer up a Batson 2.0 or they didn't double down or throw it out or do some new rule? No. They said this is really wrong, but they didn't go as far to say, well, clearly this doesn't work. So we still got Batson?

Yeah, still got Batson. So, okay, if we want diverse juries and we know that Batson doesn't really work, what do we do? So I asked everyone I talked to that question, and got a lot of different answers, but this was the obvious one. And Nancy Martyr, who's a professor of law. IIT, Chicago Kent College of Law.

Starts us off. What I'd like the court to do is eliminate peremptory challenges. It's a no-brainer. Again, that's Stephen Brighton. He's a lawyer. We have to. I mean, it's like the Supreme Court gives you these rules of peremptory challenges to strike people, and then says, well, wait a minute, don't just strike people. You know, we're going to look into all the ways that you strike the people.

Well, then they'll give them up. all then for crying out loud. It's real simple. Even Jack McMahon, the guy from that training video, he was open to it. Take them away. We've had 30 years of experiment with Batson, and it's not working. We now have to go the route that

Justice Marshall suggested back in Batson. This court has never stated, and I dare not speak for the court. That's a good constitution of rule, isn't it? So in the Batson decision, you've got Thurgan Marshall, like, the most important attorney in the civil rights movement turned the first black Supreme Court.

he in the same paragraph called the Batson decision historic and then said, this isn't going to work. This decision isn't going to do anything. He was basically a fortune teller. He said both those things in the same breath? In one paragraph, he starts it out going, this decision today, historic. By the end of the paragraph, you're never going to fix this until you get rid of peremptory challenges.

Just go out of nine peremptories to both sides. Just do away with peremptory strikes. With that valid the Constitution. If both sides could exercise perentary challenges? If both sides are denied peremptory challenges. No, sir. It would not violate the constitutional. He's perfectly all right. He said, as long as you have peremptory challenges, you will have discrimination.

But what's surprising most in reporting this story is that, like, I talk to people on the left side of the criminal justice system, on the right side of the criminal justice system. ACLU types, law professors, academics, conservative prosecutor. All of these people, when you say, guys, we've got to get rid of preemptory challenges, right? Almost every single one will say... No. No. No. It's kind of, that's a crucially important tool. We need them. It is crucially important.

You know, it's an easy solution. Just get rid of peremptories. No, hell no. That's Ellie Mistal, our legal editor, law professor, Sun Wolf from Santa Clara University, and lawyer David Nehouse again. And here's one of the arguments I heard. If you take these things away... All the decisions about striking jurors would be made by... the judge on the question of whether a juror could be fair and impartial. And for that to work, you have to have a fair judge.

And there are an awful lot of judges who aren't fair. Here's another argument I heard from Jeffrey Robinson from the ACLU. And this is based on my experience of 34 years in the criminal justice system. Jeff Robinson says if you can find some way to take race out of the equation, peremptories are super useful. And he told me about this one case. Very high profile homicide case. in the state of Washington.

This case was incredibly complicated and also potentially involved a coerced confession by some undercover cops. And there's a police officer on the jury panel. He says, I can be fair. I know the police officers

that investigated this case. I've worked with them before. I think they're really good people, but don't worry, I can be fair. Everything about his background was saying, I do not want this man to serve on this.

jury, but he was saying, I can be fair. I could not exclude him on a challenge for cause. Why not? Because he said he could be fair. The fact that he's a police officer doesn't mean he can't be fair. But isn't saying, I know some of these people involved in this case enough to get him dismissed for cause? It's enough to get more questioning, but how well do you know him? Not very well. So you're saying in that case, if you said, okay, Judge, I'd like to dismiss your 17 for cause. Cause, the judge would say there's not a record per cause. I don't think any judge in this country would dismiss that juror for cause. Wow.

Wow. And so a peremptory challenge is important. So I've watched more jury selection videos on YouTube than any person ever should. And it's this amazing thing where you see these people, they're not necessarily used to being in a courtroom. They're certainly not used to being grilled in public by a bunch of people in suits. They get up there to the jury panel and they get asked. these questions. Does everyone agree that bias doesn't have any place in the trial? Over and over again. Can you be fair and impartial? Yes, sir. You're like a blank slate.

You're just going to listen to the evidence. Can you do all that? Yes, I could. Okay. Nobody says no. Everyone feels like, yes, I can be fair. And this is the time to tell us. That's what we're asking you this. I'm thinking I could. I can be totally unbiased. And I think some of them believe that they can actually do this nearly impossible task, and others they know they can't, but they might say yes anyway. Anyone who tries the case, believe me, knows that biased jurors come in. They don't reveal things. They lie about things. There's people that when you're questioned them in a jury that you know they're lying to you. They're either trying to get on the jury or trying to get off the jury.

Bias people are being allowed to serve. So any tool that can help reduce the number of biased jurors on jurors is essential to justice. So yeah, if you've got a really crappy outlook on jurors and humans, then maybe you need more peremptory challenges. But the way Jeffrey Robinson put it to me is that if you're using peremptory challenges the right way, it forces you to be like equal opportunity suspicious, suspicious of everyone. And that's the only way to be fair. My parents were both active in the civil rights movement in Memphis, Tennessee, as active as two people you could ever want to meet, both black.

I would never let my mother sit on a criminal defense jury because my mother's view about black defendants was, you're the reason I have to lock the door in my neighborhood. You're the reason that I get disrespected when I go out into the community and I'm going to take it out on you. My father's position would be, I wouldn't believe a police officer if he told me it was raining and the water was coming down on my head. And so what this is about is actually putting into effect what the rules say. Talk to jurors and find out what they think. But what about Thurgood Marshall's idea that, you know, if you have preemptory challenges, if you give people a way to discriminate, they will discriminate.

Well, I was born in 1956. And so in 1954, Thurgood Marshall argued Brown versus the Board of Education, which had a significant impact on my life. Thurgood Marshall was someone that I have respected and someone I have admired virtually my entire life. But I can't agree with him that I want all peremptory challenges eliminated. And why do you think Thurgood Marshall, Justice Marshall, went straight to no peremptorys?

I think Justice Marshall concluded that he did not have faith in America to be able to make these kind of decisions. And I understand why he concluded that. And you do. You have that faith. I still do. And how long that will last? I don't know.

But I still do right now. Robinson says that to give up on these peremptories is like giving up on who we might be one day because of who we are right now. That's conceding that we are so divided by race that we will never be able to try and fix it. I'm not prepared to concede that. Okay, one last thing for my trip to Louisville. Tojo. Hey. What's up, James?

What do you say? What do I bought? All right. Something that blew me away. I'm Joe Gutman. I'm a teacher at Central High School, also an attorney at law. I'm James Batson, I'm a truck driver and construction worker, amongst other things. I probably should add that I'm the former prosecutor of Mr. Batson's cases.

Joe Gutman and James Batson, those two people whose conflict in a courtroom back in 1983, gave us the Batson rule. They are now in 2016 friends. I talked to him all the time. Yeah, we're friends now. How often is it that a prosecutor becomes friends with someone he helped convict? Not often. I mean, he retired from a prosecuting. I left in 2001.

I had seen too many awful things. To make a long story short, It was time for me to do something else. Joe Gutman retires from being a prosecutor and starts teaching at a high school in Louisville. It's 80% black. We're doing, we're opposing drug testing because we're on the student's side.

My name's Victoria Jackson. Okay. Well, drug testing in schools seems like a good idea, but in actuality it isn't. So the day I visited Joe Gutman's classroom, which is like a full-on, mock courtroom in a classroom. He was doing these mock trials with his students.

So there's many reasons why good testing should not be allowed in schools and public schools because there's no funding for it. When it's all said and done, I would prefer to be known more for the accomplishments in this classroom than for Batson. As for James, after the Batson case, eventually. I retired from illegal activities. And he wrote a book. war on jails. The concept is me trying to get people to stop doing crime. And the book's actually

how these two sort of met up again. One day a few years ago, James came to Joe's school to give him a copy. He gave me a copy of his book and asked me if I'd look over it. I wanted his opinion on it. I read the book that night actually. And he got 50 books into the school system here in Jefferson County now. So what happened in the past is in the past. Now 30 years ago, he did what he did. I did what I See it, let it go. As far as the legacy of the Batson challenge goes, it's really interesting to hear them talk about it, especially because in the eyes of a lot of people who know these issues, Joe was a villain. That was always the painful part about the decision in Batson is the label of being a racist prosecutor. What did that mean to you?

Well, that was a horrible label. Yeah, I mean, it was a horrible label. But Batson started a needed discussion and a needed change on Joe. on jury selection in America. You know, maybe I was just there, whether it be fate or whatever, that this was the start of change. So, I mean, take it for what it's worth, but maybe if Robinson's right, we can look at all this

and have a little tiny bit of hope. I think we're fucked. But maybe not. Sean Ramos for him. More perfect actually. Sean came up with the name. More Perfect. More Perfect is produced by me,

Chad Abumrod, Susie Lechtenberg, Tobin Low, Kelsey Paggett, and Andy Mills. With Sorin Wheeler, Ellie Mistal, David Herman, Alex Overington, Karen Duffin, Sean Ramos Forum, Catherine Wells, Barry Finkel, and Michelle Harris. Special thanks to Aidan Aidenil Kline, Brian Orr, Julie Toll,

Guy Charles, and Sarah Luspeder. Supreme Court Audio is from Oye, a free law project in collaboration with the Legal Information Institute at Cornell. More Perfect is funded in part, by the William and Flora Hewlett Foundation, the Charles Evans Hughes Memorial Foundation, and the Joyce Foundation.