State v. Holmes

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STATE v. HOLMES—CONCURRENCE
LAVINE, J., concurring. I agree with the majority’s
conclusion that in the present case, the peremptory
challenge was properly exercised under prevailing law
and practices. I especially agree with the observations
expressed in footnote 5 of the majority’s opinion,
including the admonition that trial courts must be par-
ticularly diligent in assessing the use of peremptory
challenges in cases in which the opportunity for pre-
textual use of such challenges is present. It is my view,
however, that no amount of judicial diligence and over-
sight can remedy a problem that has become embedded
in the Batson1 procedure itself unless that procedure
is revised. I write separately because this case brings
into sharp relief a serious flaw in the way Batson has
been, and can be, applied. Batson is designed to prevent
lawyers from peremptorily challenging prospective
jurors for manifestly improper reasons based on race,
national origin, and the like. It was not designed to
permit prosecutors—and other lawyers—to challenge
members of suspect classes solely because they hold
widely shared beliefs within the prospective juror’s
community that are based on life experiences. This flaw
is in plain sight for all to see and must be remedied if the
jury selection process is to attain the goal of producing
juries representing all of the communities in our state
and gaining their confidence and trust. I believe a bla-
tant flaw that significantly disadvantages black defen-
dants2—and people belonging to other suspect
classes—has become part of the Batson process itself.
I conclude that Connecticut should reform its jury selec-
tion process to eliminate the perverse way in which
Batson has come to be used. I put forth a suggestion
that, I hope, will prompt discussion.
In the present case, the prospective juror, W.T., a
social worker and a volunteer for the Department of
Correction, was asked if he had had any interactions
with the police in which he had developed either a
strong or unfavorable impression of the police or of
the way in which he was treated by the police in any
situation. He responded by stating that based on his
experiences growing up in this society, he fears for his
life. He stated that he sometimes is concerned when
he sees a police car behind him when he is driving and
wonders if he’s going to be stopped. He further stated
that he has family members who had spent time in jail,
but that he would not be influenced by that fact. In
addition, he noted that, based on his experiences work-
ing with inmates, he is aware of issues within the Ameri-
can criminal justice system, such as the fact that
African-Americans represent a disproportionate num-
ber of inmates in jail.3 He stated, however, that he could
be fair and would have no trouble following the
court’s instructions.
Notwithstanding the concerns I express here, I think
that, under the present regime, there was at least an
arguable basis to conclude that W.T. could not be fair.
In light of all of his views considered together, not
having been in the courtroom to personally observe
W.T., and taking the prosecutor at his word, I am unable
to conclude that the use of a peremptory challenge
was pretextual.
Acknowledging that there is a diversity of opinion
within every community, however, W.T.’s views appear
to me to be by no means radical or unreasonable. On
the contrary, they appear to be logical, fact-based, and
understandable in light of the troubling—to use a euphe-
mism—history of relations between minority communi-
ties, on the one hand, and the police and criminal justice
system, on the other. They are particularly understand-
able in light of the many shootings of young black men
by police around the country in recent years. One need
not share W.T.’s beliefs in every respect to believe them
to be rational and widely held in his community. Yet,
under Batson, W.T.’s understandable beliefs provide a
basis for the proper use of a peremptory challenge given
the way Batson is presently administered.
Justice Marshall noted in his concurring opinion in
Batson that ‘‘defendants cannot attack the discrimina-
tory use of peremptory challenges at all unless the chal-
lenges are . . . flagrant . . . . 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 as an explanation as well sup-
ported.’’ (Citations omitted.) Batson v. Kentucky, 476
U.S. 79, 105–106, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
Indeed, disingenuous explanations for the use of
peremptory challenges against various categories of
prospective jurors abound in the case law.4 Justice Mar-
shall himself urged the total elimination of all peremp-
tory challenges. Id., 107. Judge Mark W. Bennett, a
United States District Court judge in the Northern Dis-
trict of Iowa, shares that view and has written that
‘‘[b]ecause Batson’s framework is flawed, it has pro-
duced the lingering and tragic legacy that the courts
always do not find purposeful discrimination, regard-
less of how outrageous the asserted race-neutral rea-
sons are.’’ (Emphasis in original.) M. Bennett,
‘‘Unraveling the Gordian Knot of Implicit Bias in Jury
Selection: The Problems of Judge-Dominated Voir Dire,
the Failed Promise of Batson, and Proposed Solutions,’’
4 Harv. L. & Policy Rev. 149, 161 (2010).
The reality is that ‘‘[u]nder [the] current Batson doc-
trine, the trial court cannot reject a peremptory chal-
lenge unless it makes a finding of attorney misconduct
that has at least two facets, either of which would give
any reasonable trial judge pause. First, the judge must
make a factual finding that the race- or gender-neutral
explanation proffered by the striking attorney at Bat-
son’s second step is not, in fact, the reason for the
strike but is instead ‘pretextual . . . .’ In other words,
the court must find that the attorney has made a misrep-
resentation to the court of a material fact—a serious
breach of the attorney’s ethical duty of candor. Second
and relatedly, the judge must find that the attorney
exercised a peremptory challenge based on race or
gender and accordingly violated the juror’s constitu-
tional right to equal protection under the law. Indeed,
considered together, a trial court ruling in favor of a
Batson movant constitutes a judicial determination that
an attorney, in open court, engaged in a misrepresenta-
tion of a material fact to obscure a violation of the
law—an action that, in other contexts, could warrant
criminal prosecution. . . . Given the implications of
the findings required to establish a Batson violation, it
is understandable that in all but the most extreme cases,
trial courts will err on the side of crediting the reason
proffered for a strike.’’ (Footnotes omitted.) J. Bellin &
J. Semitsu, ‘‘Widening Batson’s Net to Ensnare More
Than the Unapologetically Bigoted or Painfully Unimag-
inative Attorney,’’ 96 Cornell L. Rev. 1075, 1113–14
(2011). Put simply, judges are reluctant to find that a
prosecutor’s stated reasons are based on conscious, or
unconscious, racist beliefs or assumptions.5
The problem presented by this case, then, must be
viewed in the context of the generally ineffectual appli-
cation of Batson.
Where does that leave things? What is to be the fate
of the hypothetical black prospective juror who testifies
under oath that he can be fair to both the state and the
defense, but also indicates that he has concerns because
he has been stopped, for no apparent, valid reason,
while driving? Or because members of his family have
been jailed? What about the hypothetical female pro-
spective juror, who is being questioned in a criminal
sex assault case, who swears that she can be fair to
the state and the defendant, but who has formed the
opinion that police sometimes do not treat the victims
of sexual assault with all the seriousness and dignity to
which they are entitled? Or the hypothetical Japanese-
American prospective juror, in a civil case in which a
federal employee is the plaintiff, who swears he or she
could be fair to both sides, but who recounts his or her
family’s suffering at the hands of the federal government
when subject to internment during World War II?
There are two things fundamentally wrong with a
system that permits someone with the rational and fact-
based views of these hypothetical prospective jurors
to be peremptorily challenged and excluded from
jury service.
First, permitting someone with the stated beliefs of
these hypothetical prospective jurors to be excluded
from jury service is an affront to the community with
which he or she identifies and undermines the claim
of the jury selection system to be fairly representative
of all segments of our diverse society. The reality is
that permitting the use of peremptory challenges under
these circumstances effectively excludes a significant
number of people belonging to suspect classes from
jury service. Batson, as it has evolved, permits the
elimination of certain categories of prospective jurors
whose views are reasonable and widely shared in their
communities. The potential for the kind of categorical
exclusion that Batson permits is simply unacceptable
in a system that strives to treat everyone equally. It
sends a troubling message to members of minority com-
munities who should be encouraged—not discour-
aged—to actively engage in, and trust, the criminal
justice system.
Second, permitting a peremptory challenge to be used
under these circumstances is an affront to the dignity
of the individual prospective juror who is excluded for
honestly voicing reasonable and widely held views. It
minimizes or negates his or her life experience in an
insulting and degrading way. It must be remembered
that one of the rationales for Batson is that the inappro-
priate exclusion of prospective jurors deprives the pro-
spective juror of his or her constitutional right to serve
on a jury—a basic right of citizenship. See Batson v.
Kentucky, supra, 476 U.S. 87. To prohibit a significant
percentage of people belonging to a suspect class from
serving on a jury because they express a reasonable,
fact-based, and widely held view cannot be counte-
nanced. As Justice Powell, writing for the court, stated
in Batson, ‘‘[s]election procedures that purposefully
exclude black persons from juries undermine public
confidence in the fairness of our system of justice.’’ Id.
Moreover, if members of a suspect class are punished
for honestly voicing their widely shared views; for
example, they are concerned when they see a police
car behind them when they are driving because they
fear being stopped for no valid reason;6 the present
regime creates an incentive for them to give dishonest
or deceitful answers, rather than honest ones. This, in
and of itself, undermines a fair jury selection system,
which relies on prospective jurors honestly answering
the questions put to them.
It is true, of course, that peremptory challenges play
an important function in our system because they per-
mit lawyers to use their intuition in the very human
jury selection process. Lawyers should have the oppor-
tunity to look prospective jurors in the eye, size them
up, and evaluate their answers. This is a time-honored
and important practice. However, as Justice Marshall
noted in his concurring opinion in Batson, ‘‘the right
of peremptory challenge is not of constitutional magni-
tude, and may be withheld altogether without impairing
the constitutional guarantee of impartial jury and fair
trial.’’ Id., 108. When the use of a peremptory challenge,
in cases similar to the present one, has the potential
to exclude categorically large swaths of people within
a suspect class, the price the system pays for main-
taining that practice is too high.
This problem cannot be solved simply by urging
restraint upon the lawyers selecting a jury. Their job,
after all, is to win their clients’ cases by selecting a jury
most likely to return a verdict in their favor. The player
in the system with the responsibility for ensuring that
prospective jurors belonging to suspect classes are
properly treated so that the system is fair, and is per-
ceived as fair, is the judge. Our judges are tasked with
making many difficult and sensitive decisions in a wide
variety of contexts. Our judges decide which parent a
child should live with in highly contested divorce cases;
and decide what sort of a sentence to mete out when
serious violent crimes are committed; and decide
whether and how much punitive damages should be
awarded in bitter business disputes. And judges already
determine whether a prospective juror should be
excused for cause. Our judges can be trusted to adminis-
ter the jury selection process so as to protect all of the
important societal interests involved, not only those of
the state and the defendant.
I understand Connecticut’s deep and long-standing
attachment to the individual voir dire.7 Therefore, I
suggest an alteration in the way Batson is administered
in Connecticut to ameliorate the negative effects of the
present regime. I would remove some of the discretion
from the lawyers selecting a jury and reallocate it to
the judge supervising the process. I believe the flaw
illustrated by cases of this sort could be ameliorated
substantially if judges are given the discretion to disal-
low the use of peremptory challenges in cases in which:
(1) the prospective juror is part of a suspect class; (2)
the prospective juror gives an unequivocal assurance,
under oath, that he or she can be fair to both sides; (3)
the prospective juror expresses reasonable and fact-
based views, which, in the opinion of the judge, follow-
ing argument by the lawyers, are widely shared in the
prospective juror’s particular community; and (4) the
judge concludes that the prospective juror can, in fact,
be fair.
The application of this proposed test would tend to
ensure that a peremptory challenge could not exclude
the previously discussed hypothetical jurors. Suppose,
however, that one of these prospective jurors testifies
that he or she distrusts the criminal justice system
because he or she heard someone on ‘‘talk radio’’ criti-
cize it. In this instance, the judge would permit the
exercise of a peremptory challenge because the pro-
spective juror’s views, in part, would not be reasonable
and based on the potential juror’s life experience.
I acknowledge that this approach would deprive law-
yers of some degree of discretion in their use of peremp-
tory challenges and would transfer that discretion to
the judge. But I believe this reallocation of discretion
from lawyers picking juries, to judges supervising the
process, is needed. As cases raising these issues illus-
trate, the price society pays by permitting prospective
jurors, like W.T., to be excluded is unacceptably high.
The justice system has an obligation to do everything
it can to encourage participation by all segments of
society, particularly those who have grown understand-
ably suspicious of that system. I can think of no better
way to accomplish this than by trusting our judges to
monitor this process, keeping well in mind the lamenta-
ble history of racial discrimination that has afflicted
African-American communities and other people
belonging to suspect classes. The Batson problem dis-
cussed here deserves study in the interest of ensuring
that Connecticut juries are fairly composed of represen-
tatives from the many diverse groups that make up our
great state.
1
See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
2
Many reported Batson cases arise from criminal cases in which the
prospective juror struck was African-American, and the party exercising
the challenge is a prosecutor. However, Batson is applicable in civil and
criminal cases, irrespective of which party is seeking to exercise a peremp-
tory challenge against someone from a suspect class. While Batson itself
primarily discusses issues relating to African-American prospective jurors,
it applies as well to other suspect classes and categories of people. For
simplicity, I will use the phrase ‘‘suspect class’’ throughout this opinion.
3
The problem of over-incarceration of African-American males has been
the subject of much discussion and debate in recent years. See, e.g., M.
Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblind-
ness (2012). Studies indicate that the percentage of black men in prison is
disproportionately higher than the percentage of black men in the general
population. The September, 2014 bulletin of the United States Department
of Justice, Bureau of Justice Statistics, indicates that as of December 31,
2013, of 1,516,879 sentenced prisoners under the jurisdiction of state or
federal correction authorities, 526,000 were black men; 454,100 were white
men; and 314,600 were Hispanic men. E. Carson, ‘‘Prisoners in 2013,’’ (Sep-
tember 2014), p. 8, Bureau of Justice Statistics, United States Department
of Justice, available at https://www.bjs.gov/content/pub/pdf/p13.pdf (last vis-
ited August 30, 2017).
4
In People v. Randall, 283 Ill. App. 3d 1019, 1025–26, 671 N.E.2d 60 (1996),
former Justice Alan J. Greiman, the author of the majority opinion, offered
a harsh appraisal of the ease with which Batson could be subverted through
disingenuous explanations for the use of a peremptory challenge. He stated:
‘‘Having made these observations, we now consider the charade that has
become the Batson process. The State may provide the trial court with a
series of pat race-neutral reasons for exercise of peremptory challenges.
Since reviewing courts examine only the record, we wonder if the reasons
can be given without a smile. Surely, new prosecutors are given a manual,
probably entitled, ‘Handy Race-Neutral Explanations’ or ‘20 Time-Tested
Race-Neutral Explanations.’ ’’ Id.
For a discussion of some of the ‘‘almost laughable’’ race neutral reasons
some prosecutors have proffered, and courts have accepted, see J. Bellin & J.
Semitsu, ‘‘Widening Batson’s Net to Ensnare More than the Unapologetically
Bigoted or Painfully Unimaginative Attorney,’’ 96 Cornell L. Rev. 1075, 1093
(2011). In truth, decisions in jury selection—as in other areas of life—are
often influenced by the sometimes very subtle implicit biases we all carry
with us. See, e.g., M. Bennett, ‘‘Unraveling the Gordian Knot of Implicit Bias
in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed
Promise of Batson, and Proposed Solutions,’’ 4 Harv. L. & Policy Rev. 149,
161 (2010); J. Kang, ‘‘Implicit Bias—A Primer for Courts,’’ National Center
St. Cts., (August 2009), available at http://wp.jerrykang.net.s110363.gridserv-
er.com/wp-content/uploads/2010/10/kang-Implicit-Bias-Primer-for-courts-
09.pdf (last visited August 30, 2017).
5
Chief Justice Warren E. Burger, in his dissenting opinion in Batson,
points out that permitting lawyers to use their intuition to excuse certain
prospective jurors can redound to the benefit of members of suspect classes.
He posits an example in which an Asian defendant is on trial for the murder
of a white victim and the prospective jurors, all white, deny harboring
racial prejudice. The defendant, however, continues to harbor a hunch, an
assumption, or an intuitive judgment that these white prospective jurors
will be unfair to him due to racial biases. The ability of the defendant to
use peremptory challenges without need for explanation can protect that
defendant, notes Burger. See Batson v. Kentucky, supra, 476 U.S. 128.
6
Connecticut law requires the maintenance of records by police depart-
ments so authorities can annually track the nature and extent of racial
profiling of black drivers. Annual reports indicate that there are racial and
ethnic disparities in the traffic stop patterns of various police departments.
A. Ba Tran, ‘‘Digging Deeper Into Racial Disparities in Connecticut Traffic
Stops,’’ TrendCt.org, (June 14, 2016), available at http://trafficstops.trendct.
org/story/digging-deeper-into-racial-disparities-in-ct-traffic-stops/ (last vis-
ited August 30, 2017). Connecticut police officials have claimed that indepen-
dent reviews have demonstrated that reports that minority drivers are
stopped disproportionately are flawed. D. Collins, ‘‘Connecticut Chiefs Say
Police Profiling Reports are Flawed,’’ Associated Press, May 4, 2017, avail-
able at https://www.usnews.com/news/best-states/connecticut/articles/
2017-05-04/connecticut-chiefs-say-police-profiling-reports-are-flawed (last
visited August 30, 2017).
Still, the ubiquitous stopping of black drivers—particularly black males—
is widely recognized. See F. Weatherspoon, ‘‘Racial Profiling of African-
American Males: Stopped, Searched, and Stripped of Constitutional Protec-
tion,’’ 38 J. Marshall L. Rev. 439 (2004). Professor Weatherspoon cites a
study undertaken by the Washington Post and the Black America’s Political
Action Committee, which determined that ‘‘approximately forty-six percent
of African-American males registered to vote believe they had been stopped
by law enforcement officers on the basis of their race.’’ Id., 444 n.25; see
also D. Harris, ‘‘The Stories, the Statistics and the Law: Why ‘Driving While
Black’ Matters,’’ 84 Minn. L. Rev. 265, 298 (1999) (‘‘Racially targeted traffic
stops cause deep cynicism among blacks about the fairness and legitimacy
of law enforcement and courts. . . . Thus, it is no wonder that blacks view
the criminal justice system in totally different terms than whites do. They
have completely different experiences within the system than whites have,
so they do not hold the same beliefs about it.’’).
7
A recent article in the Connecticut Law Review concludes that abolition
of the peremptory challenge is the only way to remedy problems posed by
Batson. See N. Marder, ‘‘Foster v. Chapman: A Missed Opportunity for
Batson and the Peremptory Challenge,’’ 49 Conn. L. Rev. 1137, 1185 (May
2017).