November 8, 2016 (Fault Lines) — Michael Slager, a white police officer in North Charleston, South Carolina, shot and killed Walter Scott as Scott was running away from him. Scott was unarmed and black.
Video of the incident is hard to watch and even harder to defend. It looks like Slager committed murder, plain and simple. So much so that the state of South Carolina actually charged Slager with murder.
So what is a good defense attorney to do? How can one defend Slager’s actions?
One possibility is exploiting racial tensions and make sure that no minorities sit on the jury.
During jury selection, the defense struck at least seven minorities from the venire on the way to seating a panel comprised of 11 white jurors and one black juror. Oh, and by the way, the defense struck nine venire members in total, and only 16 blacks were in the entire venire.
Despite the appearance of racial bias, and despite an initial prosecution objection, this very white jury will now decide Slager’s fate.
To understand why this happened, and why the judge couldn’t really do anything about it, we have to go back to some fundamental rules about jury selection.
There are two ways to get rid of potential jurors. First, a lawyer can try to get rid of one for cause. If a juror says they can’t be fair or they are otherwise unqualified, such as being racist, for example, the judge must get rid of them.
But because most people are unwilling to admit their obvious biases, or, worse, might have an agenda that is incompatible with getting their asses kicked off the panel, there are also peremptory challenges. These are a limited number of strikes given to each side, where an attorney can get rid of a juror for any reason at all, no questions asked.
There is only one limit to a peremptory strike. A lawyer cannot overtly strike a juror because of his race.
Proving that a lawyer is acting improperly is tricky though. The Supreme Court set out a three-part test for establishing impropriety in Batson v. Kentucky. First, a party must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the other side must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the proponent of the challenge has shown purposeful discrimination. More on this test later.
We should also note that Batson has been extended to apply to both sides equally. While instinctually we might assume that Batson exists to protect a defendant, that’s not really the case. Batson exists as a means to protect the jurors’ right to serve on a jury, not the defendant’s right to have a fair cross section of the community serve on the jury. As the Court concluded in Georgia v. McCollum, it is just as bad for a criminal defendant to deprive people of jury service based on their race as the prosecution. This is typically referred to as “reverse Batson.”
In theory, this is all great.
The problem is that in actual practice, it is total bullshit.
Let’s go through the process and see why. Step one is pretty easy, and the Slager trial is a good example. As jury selection went on, the prosecution noticed at some point that the jury was pretty white. Like, totally white. But the jury pool wasn’t totally white. Instead, the defense had struck seven minority jurors. It appeared that, maybe, something untoward was happening. Step one complete.
But then it was up to the defense to come up with some reason why it was doing this.
During the proceeding, Slager’s attorney, Andy Savage, was asked exactly why he dismissed the minority jurors. And he gave some: a jurors’ shaky grasp on the English language, antigun sentiments, work conflicts, vacillating answers on a questionnaire, a close connection to a key witness, deficient education levels and participation in a child support program for fathers who had fallen behind payments, like Scott.
This shows the real problem. Under the Batson framework, the attorney defending his or her apparently racist use of peremptory challenges just has to be smart enough to not admit to being racist. The test does not require the attorney to come up with even a plausible non-racist excuse. The Court in Purkett v. Elem, held that it is actually error for a court to require a plausible excuse. Remember also that peremptory challenges are allowed for absolutely any non-racist reason at all. So the Batson framework really just requires a racist attorney to be able to conceptualize any statement that a non-racist attorney might make.
Of course, there is still step three. That’s where the other side gets to call bullshit.
But that doesn’t work either because the attorney raising the challenge has to prove that the reasons given are fake and the real reason is actually racist. How exactly does one do that?
Imagine how it typically plays out.
Lawyer 1: Judge, the other side is striking all the minorities, that’s racist.
Judge: Lawyer 2, are you being racist?
Lawyer 2: No way. I just thought they were dummies.
Judge: Okay Lawyer 1, he said he’s not racist. Where’s your proof?
Lawyer 2: Never mind.
And that’s what seems to have happened here. Slager’s lawyer passed the test and denied a racist motive. The prosecutor then did what he had to, he “abandoned the challenge after listening to Savage, saying there was “no reason to believe these are pretextual strikes.”
Batson’s heart was in the right place. But the reality is that it does little more than serve as a rudimentary intelligence test for racists. So long as a lawyer is capable of denying really being a racist, he passes.
 And of course, it is impossible to say whether Slager’s attorney was being racist or not. All we can say with confidence is that his use of peremptories was questionable.