A Second-Best Opinion

Last September I argued (here) that peremptory challenges are a gigantic waste of time. But so long as we have them, courts will be faced on occasion with the task of deciding whether one side or the other has used its peremptory challenges unconstitutionally. Yesterday, in Snyder v. Louisiana, did trial courts and trial lawyers a great service in actually grappling with the details of one such case.

Snyder was convicted of first-degree murder in Louisiana after the prosecutor used his peremptory challenges to strike all 5 of the 36 prospective jurors who were African American. Snyder's lawyer filed a timely objection but the trial judge credited the prosecutor's supposedly race-neutral explanation. Normally that would have been the end of the matter, as a judge's findings of fact---including the factual question whether a peremptory challenge was race-based---are entitled to substantial deference on appeal. But the Supreme Court made clear yesterday that there is a limit to deference.

Justice Alito, writing for all of his colleagues except for Justices Thomas and Scalia, showed why the prosecutor's explanation was too flimsy to stand up. He focused on one prospective juror who was challenged because, the prosecutor said: 1) He was afraid of missing student-teaching he needed to do as part of his university studies; and 2) He appeared nervous. As Justice Alito noted, many other prospective jurors---including white jurors with more serious reasons for wanting to avoid serving on a long trial---were not challenged. Thus, Justice Alito concluded that number 2 couldn't be the real reason. As for the nervousness, Justice Alito pointed out that the judge never said he was relying on nervousness, and that the colloquy over the prosecutor's reasons occurred long after the prospective juror was examined.

In dissent, Justice Thomas said that nervousness nonetheless counts as a race-neutral reason, and that there is no requirement that a judge make a finding about which race-neutral reason he accepts. Maybe that's right, but what Justice Thomas overlooks is that the obviously bogus he-wants-to-be-somewhere-else reason itself gives rise to an inference that race was the real reason for the strike, and that this inference---in combination with the stark fact that the prosecutor used peremptories against ALL the African-American jurors---fatally undermines the nervousness claim.

Although I still would prefer a regime in which there were no peremptory challenges, if we're going to have them subject to the prohibition on racial discrimination, trial judges and lawyers need guidance in discerning what counts as a valid race-neutral explanation. For the most part, the Supreme Court has punted on giving such guidance, and yesterday's decision, as a technical matter, continues to treat the issue as one committed primarily to trial courts. But the Justices deserve credit for working through the actual facts of one of these cases so that front-line actors will have some real sense of how to apply the general requirement that they discern race-based from race-neutral reasons.

Posted by Mike Dorf