[Editor's Note: We're delighted to post this guest blog entry by Laura I Appleman, a criminal appellate defender at the Center for Appellate Litigation in New York City. She writes about the intersection between criminal law and legal ethics, and has researched the issue of using impermissable reasons (e.g., race or gender) to strike prospective jurors from the jury box. "Batson" was the case ruling that those grounds were improper. In the Quatman matter, it's alleged that the prosecutor improperly struck jurors who might have favored the defendant. Here, Laura explores the more difficult issue of the use of impermissible grounds by defense counsel.]
Batson challenges—specifically, the improper usage of Batson challenges—are one of those issues that seem to be perennially in the news. Before the Quatman matter, the last national uproar was the Lemerick Nelson case. As you may recall, Lemrick Nelson and Charles Price were convicted in 1997 of killing Yankel Rosenblum in the Crown Heights riots. The defendants appealed their conviction and sentences through several levels of appeals, finally arriving in the Second Circuit Court of Appeals. During jury selection, the judge, prosecutor and defense counsel all colluded in a scheme to reshuffle the jury on the bases of both race and religion (i.e., balancing the numbers of Jews and blacks).
The Second Circuit held that because the judge had refused to strike a juror who was clearly biased, Nelson and Price’s convictions had to be overturned. Notably, Judge Calabresi held that even though defense counsel had expressly consented in the jury manipulation, Nelson and Price could still raise the issue on appeal, because "a waiver to a juror's impartiality cannot be accepted when it was obtained by the promise of seating a jury with what the defendants apparently believed were "desirable" racial characteristics."
As you can well imagine, this decision raises a whole host of legal ethics problems. I’ll mention just a few for brevity’s sake. First, is it ethical for defense counsel to engage in or expressly consent to discriminatory behavior during jury selection, knowing that the defendant, if unlucky at trial, can raise the issue on appeal? Second, is it ever appropriate for the judge, prosecutor and defense counsel to try to shape a balanced jury by violating Batson principles? What if we assume, arguendo, that this jury would be better and more fair than a jury picked without resort to discriminatory tactics? And what about the potential jurors’ rights in all this? Isn’t it part of the court and counsel’s job to safeguard their right in jury selection?
This issue, what I will dub the "unclean hands" issue, has come up in two other circuits, the Fifth Circuit and the Seventh Circuit, creating a circuit split. In 1996, the Fifth Circuit, in U.S. v. Huey, reversed a defendant’s conviction where his co-counsel peremptorily struck five black men on the impermissible basis of race. The Seventh Circuit, in U.S. v. Boyd, held the opposite: that the defense counsel’s improper use of peremptory challenges did not warrant a new trial absent ineffective assistance of counsel, arguing that the defendant could not protest, on appeal, his own agent’s "tactical decision."
The US Supreme Court has not yet ruled on the matter, so the rest of the circuits are free to decide this matter on their own. But the "unclean hands" issue is a thorny one, involving defendant’s rights vs. the Equal Protection Clause vs. the rights of the potential juror and the community at large to participate in the criminal justice system. My own ethical take is that as important as the defendant’s rights are, the Equal Protection Clause must trump all, and defense counsel shouldn't use race-based juror challenges, because the entire normative framework of Batson is based on non-discrimination norms that support a system of legal ethics.
But more on that next post.
Laura I Appleman
New York City
(My views here are mine, and not my employer's)