State v. HolmesState v. Holmes
- Reporters:
- ,
- Before:
- Mullins, D’Auria
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The ”
All opinions are subject to modification and technical correction prior to official publication in
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of
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Peremptory challenges by their very nature invite corruption of the judicial process by allowing—almost countenancing—
I
As the majority opinion
The problem of discrimination in peremptory challenges stems from the following systemic issues: (1)
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 challenges 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. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
Emphasizing the inherent conflict between peremptory 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 challenge, 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 challenges.
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 protection 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 articulable, “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 stereotypes and generalizations in deciding how to exercise peremptory challenges.” State v. Saintcalle, 178 Wn. 2d 34, 81, 309 P.3d 326 (2013) (Gonzalez, J., concurring).
It is almost inevitable that this expedient resort to criminatory considerations. I submit that decisions to exclude a
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 purposeful, 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 challenges. See State v. Holmes, 176 Conn. App. 156, 197–99, 169 A.3d 264 (2017) (Lavine, J., concurring); State v. Saintcalle, supra, 178 Wn. 2d 100 (Gonzalez, J., concurring).
Regarding unconscious or implicit bias, Justice Marshall 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 ‘sullen,’ 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 supported.” Batson v. Kentucky, supra, 476 U.S. 106 (Marshall, 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, “sometimes, 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 . . . demonstrates the prevalence of unconscious, automatic stereotype 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 present day, relations between
Adequate solutions to this problem are hard to come by, due in no small part to the innumerable permutations of disparate impact questions. In light of the complexity of these problems, I believe that outright elimination 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 parties but also of the individual jurors who were improperly 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 possess 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 irreconcilable 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. Citizens 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
II
Having identified the systemic problems associated with peremptory challenges, I now consider the constitutional 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. McCollum, 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
I make two observations here. First, our constitution does not prescribe any minimum number of peremptory challenges that parties are entitled to; see
Second, and more fundamental, although the language 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 government, 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 challenges 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 defendants in order to prevent oppression by the [g]overnment.” Duncan v. Louisiana, 391 U.S. 145, 155, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).
Notwithstanding the fact that
Apart from the constitutional question of whether limiting the number of peremptory challenges available to the state to a greater degree than the number available 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 appropriate as a matter of policy. Justice Marshall, for instance, rejected such disparate treatment in his concurring opinion in Batson, reasoning that “[o]ur criminal 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. McCollum, supra, 505 U.S. 68 (O’Connor, J., dissenting) (arguing that Batson prohibition on race based peremptory 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,
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.