State v. Holmes ( 2019 )

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STATE v. HOLMES—CONCURRENCE
MULLINS, J., with whom D’AURIA, J., joins, concur-
ring. I agree with and join the majority’s thoughtful and
well reasoned opinion. In particular, I wholeheartedly
endorse the majority’s decision in part II B of its opinion
to create a Jury Selection Task Force to identify and
implement corrective measures for combatting the dis-
criminatory use of peremptory challenges beyond the
framework set forth in Batson v. Kentucky, 476 U.S.
79, 96–98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). I write
separately because, in my view, it is time not only to
reconsider the framework of the Batson challenge in
order to eliminate discrimination in jury selection but
also to consider substantially restricting the use of
peremptory challenges altogether.
Peremptory challenges by their very nature invite
corruption of the judicial process by allowing—almost
countenancing—discrimination. The credibility and
integrity of our system of justice should not tolerate
prospective jurors being prevented from serving on
juries on the basis of discrimination due to their race,
ethnicity, gender or religious affiliation. The straightest
line to eliminating such discrimination would be to elim-
inate the peremptory challenge. In our state, in light of
article first, § 19, of the Connecticut constitution, as
amended by article IV of the amendments, outright elim-
ination of the peremptory challenge would raise consti-
tutional concerns. However, nothing in our constitution
prevents the next best thing, which would be to substan-
tially reduce the number of peremptory challenges that
the parties have available for their use.
I
As the majority opinion cogently sets forth, the Bat-
son framework has proven to be wholly inadequate to
address the discriminatory use of peremptory chal-
lenges. There are, however, more fundamental prob-
lems with peremptory challenges that should lead us
to question whether any reforms short of reducing the
parties’ access to peremptory challenges will meaning-
fully reduce the discriminatory effects that they have
on the selection of jurors.
The problem of discrimination in peremptory chal-
lenges stems from the following systemic issues: (1)
the historical use of peremptory challenges as a means
of excluding African-Americans from jury service; (2)
peremptory challenges lead inescapably to parties strik-
ing prospective jurors on the basis of speculation and
stereotypes; (3) peremptory challenges are often based
on unconscious biases and justifications that are osten-
sibly race neutral but that have a disparate impact on
minority jurors; and (4) peremptory challenges lead to
violations of the constitutional rights not just of the
parties but also of the prospective jurors.
A
First, peremptory challenges have a history of being
used as a tool of racial discrimination. Until Batson
was decided in 1986, the United States Supreme Court
expressly countenanced the use of peremptory chal-
lenges to strike jurors on account of their race. See
Swain v. Alabama, 380 U.S. 202, 220–21, 85 S. Ct. 824,
13 L. Ed. 2d 759 (1965), overruled by Batson v. Ken-
tucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
Emphasizing the inherent conflict between peremp-
tory challenges and equal protection principles, the
United States Supreme Court concluded: ‘‘[W]e cannot
hold that the striking of Negroes in a particular case is
a denial of equal protection of the laws. . . . To subject
the prosecutor’s challenge in any particular case to
the demands and traditional standards of the [e]qual
[p]rotection [c]lause would entail a radical change in
the nature and operation of the challenge. The chal-
lenge, pro tanto, would no longer be peremptory, each
and every challenge being open to examination . . . .
And a great many uses of the challenge would be
banned.’’1 Swain v. Alabama, supra, 380 U.S. 221–22.
Although Swain was eventually overruled by Batson,
this long held understanding, that it was acceptable to
strike prospective jurors on the basis of their race, has
left an indelible mark on the use of peremptory chal-
lenges.
I acknowledge that the problem extends beyond race
and into discrimination on the basis of ethnicity, gender,
and religious affiliation, which also are entitled to pro-
tection under the Batson framework. See J. E. B. v.
Alabama, 511 U.S. 127, 129, 114 S. Ct. 1419, 128 L. Ed.
2d 89 (1994); State v. Hodge, 248 Conn. 207, 244–45,
726 A.2d 531 (1999). The Batson framework, however,
is equally ineffective in addressing discrimination on
these bases as well.
B
Second, peremptory challenges lead inescapably to
parties striking prospective jurors purely on the basis
of speculation and stereotypes. Unlike challenges for
cause, where the prospective juror’s partiality is articu-
lable, ‘‘the peremptory permits rejection for a real or
imagined partiality that is less easily designated or
demonstrable.’’ Swain v. Alabama, supra, 380 U.S. 220.
‘‘With limited information and time, and a lack of any
reliable way to determine the subtle biases of each
prospective juror, attorneys tend to rely heavily on ste-
reotypes and generalizations in deciding how to exer-
cise peremptory challenges.’’ State v. Saintcalle, 178
Wash. 2d 34, 81, 309 P.3d 326 (2013) (Gonzalez, J., con-
curring).
It is almost inevitable that this expedient resort to
criminatory considerations. I submit that decisions to
exclude a prospective juror on the basis of stereotypes,
whether based on racial or other discriminatory consid-
erations that have nothing to do with the juror’s ability
to fairly assess the evidence and follow legal instruc-
tions given by the judge, have no place in our system
of selecting jurors.
C
Third, as discussed in the majority opinion, there
are two especially elusive problems with peremptory
challenges: (1) unconscious or implicit bias; and (2)
lines of voir dire questioning that are race neutral but
that have a disparate impact on minority jurors.
Although these forms of discrimination are not purpose-
ful, their consequences are no less pernicious. Both
result in minorities being disproportionately excluded
from jury service. This brand of exclusion has the effect
of reducing diversity in our juries and perpetuating a
mistrust of our justice system, particularly among those
in the communities disparately impacted by these chal-
lenges. See State v. Holmes, 176 Conn. App. 156, 197–99,
169 A.3d 264 (2017) (Lavine, J., concurring); State v.
Saintcalle, supra, 178 Wash. 2d 100 (Gonzalez, J., con-
curring).
Regarding unconscious or implicit bias, Justice Mar-
shall explained in Batson that ‘‘[a] prosecutor’s own
conscious or unconscious racism may lead him easily
to the conclusion that a prospective black juror is ‘sul-
len,’ or ‘distant,’ a characterization that would not have
come to his mind if a white juror had acted identically.
A judge’s own conscious or unconscious racism may
lead him to accept such an explanation as well sup-
ported.’’ Batson v. Kentucky, supra, 476 U.S. 106 (Mar-
shall, J., concurring).
A number of judges and commentators have argued
that the only way to meaningfully combat the effects
of implicit bias on peremptory challenges is to limit or
eliminate them. See Rice v. Collins, 546 U.S. 333, 343,
126 S. Ct. 969, 163 L. Ed. 2d 824 (2006) (Breyer, J.,
concurring) (In suggesting that peremptory challenges
should be abolished, Justice Breyer noted that, ‘‘some-
times, no one, not even the lawyer herself, can be certain
whether a decision to exercise a peremptory challenge
rests upon an impermissible racial, religious, gender-
based, or ethnic stereotype. . . . How can trial judges
second-guess an instinctive judgment the underlying
basis for which may be a form of stereotyping invisible
even to the prosecutor?’’ [Citations omitted.]); A. Page,
‘‘Batson’s Blind-Spot: Unconscious Stereotyping and
the Peremptory Challenge,’’ 85 B.U.L. Rev. 155, 246
(2005) (‘‘The psychological research . . . demon-
strates the prevalence of unconscious, automatic ste-
reotype use and the difficulty in eradicating it, even
among those who are not of a mind to discriminate.
This finding provides one more powerful reason to elim-
inate the peremptory challenge.’’).
The problem of lines of voir dire questioning that have
a disparate impact on minorities is equally complex.
Our case law, as the majority opinion notes, has held
that ostensibly race neutral reasons for striking a
juror—such as, in this case, the juror’s negative views
about law enforcement—pass muster under Batson
even though they disproportionately affect minority
jurors. See State v. King, 249 Conn. 645, 666–67, 735
A.2d 267 (1999); State v. Hodge, supra, 248 Conn.
230–31; State v. Smith, 222 Conn. 1, 13–14, 608 A.2d
63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed.
2d 293 (1992); see also Hernandez v. New York, 500
U.S. 352, 359–60, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991).
Throughout history and continuing through the pres-
ent day, relations between the police and many minorit-
ies and minority communities have been strained and
highly contentious. Recently, police killings of African-
American men and women have been highly publicized.
Unfortunately, while the heightened publicity around
these cases is new, these stories are not new. We cannot
turn a blind eye to that reality. To permit an honest
venireperson who expresses that experience to be pre-
vented from service on a jury is unacceptable.2 I there-
fore echo the sentiments of the Appellate Court majority
that ‘‘permitting the use of peremptory challenges with
respect to potential jurors who express negative views
toward the police or the justice system may well result
in a disproportionate exclusion of minorities from our
juries, a deeply troubling result.’’ State v. Holmes, supra,
176 Conn. App. 181 n.5. Indeed, as Judge Lavine thought-
fully set forth in his concurring opinion in the Appellate
Court, the effects of these types of challenges are
immensely damaging to our juries and to the perception
of our justice system. See id., 197–99 (Lavine, J., con-
curring).
Adequate solutions to this problem are hard to come
by, due in no small part to the innumerable permuta-
tions of disparate impact questions. In light of the com-
plexity of these problems, I believe that outright elimi-
nation of, or at least a substantial reduction in access
to, peremptory challenges is the most effective way to
lessen the discrimination that arises from peremptory
challenges.
D
Finally, it is important to remember that every time
a discriminatory, peremptory strike goes unchallenged
or such a strike passes muster in our courts, it violates
the equal protection rights not only of the affected par-
ties but also of the individual jurors who were improp-
erly stricken. See Powers v. Ohio, 499 U.S. 400, 409,
111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (The equal
protection clause prohibits prosecutors from ‘‘exclud[-
ing] otherwise qualified and unbiased persons from the
petit jury solely by reason of their race, a practice that
forecloses a significant opportunity to participate in
civic life. An individual juror does not have a right to
sit on any particular petit jury, but he or she does pos-
sess the right not to be excluded from one on account
of race.’’). ‘‘[W]ith the exception of voting, for most
citizens the honor and privilege of jury duty is their most
significant opportunity to participate in the democratic
process.’’ Id., 407. A procedure that permits qualified
jurors to be excluded from jury service because of their
race, ethnicity, gender or religious affiliation is irrecon-
cilable with promoting the legitimacy and credibility of
our justice system.
In my view, the importance of these rights should
lead us to question whether they should be left to self-
interested parties who, as previously explained, often
are acting on the basis of stereotypical judgments. Citi-
zens should not be deprived of the opportunity to serve
on a jury in the absence of an acceptable and identifiable
reason. Our system takes that into account with the
challenge for cause. The peremptory challenge allows
too much discrimination to seep into the decision to
strike a prospective juror.
II
Having identified the systemic problems associated
with peremptory challenges, I now consider the consti-
tutional and policy considerations involved in
addressing these problems. I acknowledge at the outset
that, although there is no right to peremptory challenges
under the federal constitution; see Georgia v. McCol-
lum, 505 U.S. 42, 57, 112 S. Ct. 2348, 120 L. Ed. 2d 33
(1992); total elimination of peremptory challenges may
not be possible in this state. This is because article first,
§ 19, of the Connecticut constitution was amended in
1972 to include the following provision: ‘‘In all civil and
criminal actions tried by a jury, the parties shall have
the right to challenge jurors peremptorily, the number
of such challenges to be established by law. . . .’’ Conn.
Const., amend. IV.
I make two observations here. First, our constitution
does not prescribe any minimum number of peremptory
challenges that parties are entitled to; see Conn. Const.,
amend. IV; leaving that to be determined by the legisla-
ture. See General Statutes § 51-241 (providing each
party with three peremptory challenges in civil cases,
subject to limitations); General Statutes § 54-82g (pro-
viding state and defendant each with between three and
twenty-five peremptory challenges in criminal cases,
depending on severity of crime charged). Thus, there
does not appear to be any constitutional impediment
to reducing the number of peremptory challenges avail-
able to parties.
Second, and more fundamental, although the lan-
guage of the constitution affords the state a right to a
peremptory challenge, the historical basis for that right
is unclear. Historically, peremptory challenges have
been recognized, not as a right belonging to the govern-
ment, but as a tool for criminal defendants to protect
themselves from the government. Indeed, this court
described peremptory challenges several years before
they were constitutionalized as ‘‘one of the most
important rights secured to the accused . . . .’’
(Emphasis added; internal quotation marks omitted.)
DeCarlo v. Frame, 134 Conn. 530, 533, 58 A.2d 846
(1948). This court has recognized peremptory chal-
lenges as a means of securing a criminal defendant’s
right to trial by a fair and impartial jury. See State v.
Hodge, supra, 248 Conn. 217. The United States
Supreme Court has explained that the right to a trial
by a fair and impartial jury ‘‘is granted to criminal defen-
dants in order to prevent oppression by the [g]overn-
ment.’’ Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.
Ct. 1444, 20 L. Ed. 2d 491 (1968).
Notwithstanding the fact that article first, § 19, of the
Connecticut constitution, as amended by article four
of the amendments, provides that ‘‘the parties’’ in a
criminal action have the right to peremptory challenges,
granting that right to the state seems incongruous with
the other rights associated with criminal trials. Virtually
all of the other trial related rights in a criminal case have
as their basis the protection of the individual against
the state.3 Nevertheless, I understand that the language
of the constitutional provision provides the state with
peremptory challenges. However, given that the legal
basis for the state’s constitutional right to peremptory
challenges in a criminal case is certainly open to ques-
tion, I suggest that it is appropriate to consider whether
the state should be entitled to an equal number of
peremptory challenges as the accused in a criminal
case. Instead, it may be appropriate, in a criminal case,
to limit the number of peremptory challenges available
to the state in greater measure than the number of
peremptory challenges available to the defendant.
Apart from the constitutional question of whether
limiting the number of peremptory challenges available
to the state to a greater degree than the number avail-
able to the defendant would be permissible under our
state constitution, there remains the question of
whether providing criminal defendants with greater
access to peremptory challenges than the state is appro-
priate as a matter of policy. Justice Marshall, for
instance, rejected such disparate treatment in his con-
curring opinion in Batson, reasoning that ‘‘[o]ur crimi-
nal justice system ‘requires not only freedom from any
bias against the accused, but also from any prejudice
against his prosecution. Between him and the state the
scales are to be evenly held.’ ’’ Batson v. Kentucky,
supra, 476 U.S. 107 (quoting Hayes v. Missouri, 120
U.S. 68, 70, 7 S. Ct. 350, 30 L. Ed. 578 [1887]).
Others, however, have argued that, because only
criminal defendants possess the constitutional right to
a fair trial and impartial jury, their use of peremptory
challenges should be preserved while prosecutors’ use
should be eliminated or reduced. See Georgia v. McCol-
lum, supra, 505 U.S. 68 (O’Connor, J., dissenting)
(arguing that Batson prohibition on race based peremp-
tory challenges should not apply to criminal defendants
because ‘‘[t]he concept that the government alone must
honor constitutional dictates . . . is a fundamental
tenet of our legal order . . . [and] [t]his is particularly
so in the context of criminal trials, where we have held
the prosecution to uniquely high standards of conduct’’
[emphasis added]).
These difficult constitutional and policy questions are
not presently before this court and I make no attempt
to answer them here. Instead, I write separately to
emphasize that the problem of racial and other forms
of discrimination in the use of peremptory challenges
is extremely complex and the solution to the problem
must take into account that complexity. To be sure,
solutions may need to extend beyond the framework
of the Batson challenge to encompass a substantial
reduction in the availability of peremptory challenges.
1
In Swain, the United States Supreme Court recognized that the use of
peremptory challenges to exclude African-American jurors violated the equal
protection clause only if there was evidence that the state did so in virtually
every single case and that no African-Americans were ever selected to serve
on juries. Swain v. Alabama, supra, 380 U.S. 223–24. This requirement
later was recognized as ‘‘impos[ing] a crippling burden of proof that left
prosecutors’ use of peremptories largely immune from constitutional scru-
tiny.’’ (Internal quotation marks omitted.) Miller-El v. Dretke, 545 U.S. 231,
239, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005).
2
Judge Lavine, in his concurring opinion in the Appellate Court in this case,
provides other examples of experiences that a venireperson of a particular
suspect class may honestly reveal that may subject him or her to being
stricken from the jury. See State v. Holmes, supra, 176 Conn. App. 197
(Lavine, J., concurring). I agree with his examples and find it unacceptable
for an individual to be excluded from service on a jury merely because he
or she has experiences common to his or her race, ethnicity or gender that
a party considers to be objectionable for service on a jury.
3
The right to a jury trial has been deemed fundamental because it safe-
guards the accused’s rights against abuse of state power. See Duncan v.
Louisiana, supra, 391 U.S. 155–56. Likewise, ‘‘[t]he right to counsel under the
sixth amendment of the federal constitution protects a criminal defendant
at critical stages of the proceedings from adversarial government agents
. . . .’’ State v. Piorkowski, 243 Conn. 205, 215, 700 A.2d 1146 (1997); see
also Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799
(1963) (right to counsel is necessary to protect criminal defendants from
government, which spends ‘‘vast sums of money to establish machinery to
try defendants accused of crime’’). The same is true of the sixth amendment
right to a speedy trial; see State v. Baker, 164 Conn. 295, 296, 320 A.2d 801
(1973) (‘‘[o]n its face, [the right to a speedy trial] is activated only when a
criminal prosecution has begun and extends only to those persons who
have been accused in the course of that prosecution’’ [internal quotation
marks omitted]); and the fifth amendment right against self-incrimination.
See In re Samantha C., 268 Conn. 614, 634, 847 A.2d 883 (2004) (‘‘fifth
amendment privilege against self-incrimination . . . protects the individual
against being involuntarily called as a witness against himself’’ [internal
quotation marks omitted]). Similarly, the fourteenth amendment, which for-
bids the purposeful discrimination in the exercise of peremptory challenges,
was designed to protect citizens from state action. See State v. Holliman,
214 Conn. 38, 43, 570 A.2d 680 (1990) (fourteenth amendment ‘‘prohibits
of the states, not to acts of private persons or entities’’ [internal quotation
marks omitted]).
Moreover, article first, §§ 8 and 20, of the Connecticut constitution, which
contain our state counterparts to these federal rights, by their express terms
extend only to individual citizens or criminal defendants. See Conn. Const.,
art. I, § 8 (listing rights secured to ‘‘the accused’’ and providing that ‘‘[n]o
person shall be compelled to give evidence against himself’’); Conn. Const.,
art. I, § 20 (‘‘[n]o person shall be denied the equal protection of the law’’).
The foregoing demonstrates that both the language and the origins of these
trial related rights establish that their purpose is to protect the accused
from the awesome power of the state. Conversely, there is no historical basis
for the proposition that the state possesses constitutional trial related rights.