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Tuesday, May 12, 2009

Wish list for the next Supreme Court Justice

Despite my tremendous, if not obvious, qualifications, I don't think that phone is going to ring. So, if I'm not going to be appointed to the Supreme Court, who should be? Glad you asked. I could throw out a few names, but I don't think any of my nominees would have a shot in hell of confirmation. So, in lieu of an actual name, I will instead provide a list of qualifications (dare I say litmus test?) to be met by a Supreme Court Justice. While there are, of course, many critically important constitutional issues facing the Court, I will focus my attention here on those related to juries.

1. The Death Penalty is Unconstitutional
I am not arguing that the death penalty is never an appropriate punishment for a crime. I am rather agnostic on the subject. Rather, given that juries must decide sentence in capital cases, the application of the death penalty is so arbitrary and capricious as to be unconstitutional. There are many reasons for this, and most of them will never go away. Jury instructions on capital sentencing are incomprehensible and errors by jurors almost always lead them to vote for the death penalty in cases in which a proper understanding of the instructions would have led them to vote against it. (See Weeks v. Angelone, Free v. Peters and many others). While we understand a good deal about how jurors decide cases on the merits, the processes behind sentence or damages calculations remain essentially a mystery. We have failed, using the best social scientific techniques, to produce a model that predicts, with any degree of satisfactory precision, how jurors choose sentences. As of now, the only variable that seems to differentiate between offenders who receive the death penalty from those who do not is the race of their victims -- hardly something one which to hang one's hat. The admission of victim impact statements during capital sentencing hearings permits non-probative, emotionally inflammatory testimony to infect an already nebulous, emotionally charged process.

2. Reverse Lockhart v. McCree.
If the death penalty is going to stick around, it is time for the Supreme Court to get its collective head out of the sand regarding the impact of death qualification. Repeat after me: Death qualified juries are more likely to convict than normally chosen ones. Rehnquist's opinion in this case was just plain stupid, not to mention disingenuous. He hides behind the convenient legal fiction that an impartial jury is one made up of "impartial jurors." In Lockhart, he wrote that since McCree's jury could have been selected randomly (even though it wasn't), and none of the individual jurors were shown to have been biased against the defendant (How could they have been?), their verdict must be legitimate. By Rehnquist's logic, every jury is impartial, provided that none of its members admit to hating the defendant. This highlights a general point about jury impartiality. It is time to finally kick to the curb Rehnquist's definition and recognize that the only internally consistent definition of jury impartiality is that associated with a jury "impartially chosen."

3. Reverse Williams v. Florida
The empirical evidence is overwhelming that smaller juries are inferior to larger ones in many ways. First, by simple statistical theory, the larger the jury, the more likely it is to reflect the true distribution of attitudes, values and experiences in the community from which it is drawn (putting aside peremptory challenges for now). This is simply an application of the law of large numbers. Studies have shown that larger juries tend to correct factual errors made by its members more regularly than do smaller ones. Larger juries are also less likely to be "hijacked" by one zealous juror. Obviously, the jury needs to be small enough so that they can effectively deliberate as one body, but six jurors are too few. I think that the ideal number is probably something in the range of 15. That said, the Constitutional question is only whether a jury of six is sufficient to do the job. The answer is clearly "no."

4. Recognize the full implication of Batson v. Kentucky
The key component of the holding in Batson is the identification of the peremptory challenge as a "jury selection practice that permits those to discriminate who are of a mind to discriminate." As such, the logic applies equally to any jury selection practice that runs a similar danger of discrimination. Subsequent cases have defined "state actors" quite broadly within the context of jury trials. Prosecutors, defense attorneys and civil litigants are all state actors. As such, judges must surely state actors, as well. The following jury selection practices must fall under the purview of Batson and its progeny:

Choice of Venue. When pretrial publicity or some other factor requires that a trial be moved to a new venue, the judge is afforded great discretion over where the new trial is held. A judge who is of a mind to discriminate can easily do so by moving the trial to a location with a drastically different racial composition. This is exactly what happened in the case of Jerome Mallett, a black man accused of killing a white state trooper in St. Louis. The judge moved the case to a county near the Iowa border with no black residents. The Missouri Supreme Court held this practice constitutional on the grounds that Batson only applied to peremptory challenges. Justice Marshall wrote a compelling dissent to the US Supreme Court's denial of certiorari.

Death Penalty Prosecutions. Obviously, it is unconstitutional for a prosecutor to only (or disproportionately) seek the death penalty in cases involving minority defendants. But what of the decision to seek the death penalty in order to eliminate black jurors? We know that a greater proportion of African Americans oppose capital punishment than is the case for whites. We also know that death qualified juries are conviction prone. Therefore, it would be a perfectly rational strategy for a prosecutor to seek the death penalty in order to rid his jury of as many African Americans as possible, and in the process, increase his likelihood of securing a conviction. This decision should be governed by the holding in Batson v. Kentucky. The prosecutor should be required to offer a race-neutral explanation for the decision to seek the death penalty.

Judicial decisions on hardship requests and challenges for cause. Before either side gets to exercise their peremptory challenges, the judge determines which prospective jurors are eligible to serve. If a pattern emerges with respect to a judge's decisions about who is excused for hardship reasons (childcare responsibilities, job commitments, etc.) that seems to have a disparate impact on minority jurors, the parties should be free to make a Batson challenge. Again, the operative concept is whether someone "of a mind to discriminate" has the opportunity to do so.

5. Admit that Marshall was right about Batson
In his concurrence to Batson v. Kentucky, Marshall warned that the decision would do little to limit discriminatory use of peremptory challenges in practice. He argued that it would be too easy for prosecutors to invent a racially neutral explanation when necessary (See, for instance, Rice. v. California). He also argued that attorneys who believed themselves to be free from racial bias or animus would, nonetheless, be affected by subconscious racial bias when challenging jurors. That is, lawyers would be forever violating Batson without even realizing it. A recent study by Sam Sommers strongly confirms Marshall's worst fears. Marshall advocates eliminating all peremptory challenges, arguing convincingly that peremptory challenges are not constitutionally protected. It is worth noting that England, from whom we inherited our legal system, essentially eliminated peremptory challenges over 40 years ago. I have always been amazed that not one of the opinions in Batson v. Kentucky bothers to mention this historical fact.

6. Insist that all jury instructions be in plain English and be tested for comprehension.
Most states are moving in the direction of plain English jury instructions. That said, several still use lots of jargon, complicated sentence construction and multi-syllabic linguistic anomalies (fancy words), to the detriment of juror understanding. A verdict handed down by a jury that does not understand its instructions is surely arbitrary and capricious. Federal Rule of Evidence 606(b) precludes juror testimony about jury deliberations or the internal mental processes of jurors. As such, it is not possible to inquire, ex post, into whether a jury understood how to apply its instructions. The only solution is to make it Constitutionally mandatory for a state to test its jury instructions before they are codified. (Obviously, the states should be given adequate time to test existing instructions). While I would certainly encourage any jurisdiction to adopt best practices regarding the treatment of jurors during trial (note taking, juror questions, pre-case instructions, written instructions, etc.), I am not sure that any others approach Constitutional significance.

7. Reverse State Farm.
Most of the misguided steps taken by the Supreme Court over the past 30 years, with respect to jury trials, concern criminal cases. Recently, however, the Supremes have decided to expand their convoluted thinking to civil trials, as well. In State Farm, the Court applied some truly baffling logic to evaluating punitive damages. Perhaps we should not be surprised that this is where the Court's logic ran amok. Within the civil law sphere, punitive damages is the place where the jury most acts as the "conscience of the community." By punishing intentional wrong-doing, the jury is assessing a quasi-criminal penalty. So, the distrust that the Court exhibited towards jurors in this context is simply an extension of its distrust in jury decision-making in the criminal law arena. The conservative majority on the Court thinks that we mere mortals are too lenient towards poor people (so they have eroded defendant rights in criminal trials) and too harsh towards rich people (so they have enhanced defendant rights in civil trials).

Let's get one thing straight right off the bat. Everyone agrees that compensatory damages are meant to "make the plaintiff whole" with respect to any harm caused by the defendant. As such, the intent of the defendant is completely irrelevant, provided that the consequent conduct is deemed to have been negligent. Whether the harm was caused by a mistake or a deliberate act does not matter in the calculation of compensatory damages. By contrast, the actual harm suffered by the plaintiff is irrelevant to the calculation of punitive damages, except to the extent that it helps the jury evaluate the inherent dangerousness of the defendant's actions. That is, the jury is trying to calculate the expected harm associated with the defendant's gross negligence, so as to determine how irresponsibly the defendant acted. The actual damages suffered by the plaintiff need not have any relationship to this expected harm.

As a further wedge between compensatory and punitive awards, remember that the deterrent goal of a punitive award requires that the expected harm be multiplied by the inverse of the likelihood that the abhorrent act would be detected, brought to light and successfully litigated. So, if the jury thinks that there is only a 5% that the perpetrators would be caught and successfully sued (perhaps due to the defendant's subterfuge), the expected harm should be multiplied by 20 to properly punish the wrongdoers.

That said, the Court spent considerable time, space and effort turning this logic on its head. Expressing concern that one large judgment could bankrupt a large corporation, the Court pronounced that, as a general rule of thumb, a punitive award should not exceed ten times the corresponding compensatory award. The majority seemed particularly worried that a company would be asked to pay punitive awards in multiple jurisdictions for essentially the same evil act. We should note, however, that, after remands and much hemming and hawing about jury instructions, a very large punitive award in an Oregon tobacco case was permitted to stand.

To further understand the flawed logic of State Farm, consider the following example. An oil company neglects to install double hulls in one of its tankers, contrary to federal law. Close to port, the tanker runs aground during unexpected bad weather, leaking most of its oil into the surrounding water. If the tanker hit the rocks on its way into port, it would spill millions of gallons of oil into the bay, creating a major ecological and public health disaster. If, on the other hand, the tanker hit the rocks on its way out of port, after unloading, it would create a very small oil slick that could be contained and cleaned up within a matter of days. The inherent reprehensibility of the conduct (failing to install double hulls) is identical in both cases. The actual harm caused, however, differs by a factor of millions. Should the punitive award faced by the oil company be essentially eliminated because they got lucky about when the tanker ran aground? The State Farm decision says "yes," but simple logic says "no."

This line of cases needs to be reversed before it gets too firmly entrenched as precedent.

I believe in the American jury system. I think that jurors are to be respected and should be given all the resources possible to succeed in their very important tasks. it is vital that the jury-related decisions of the Supreme Court move in the direction of a jury that is fairly chosen, clearly instructed and properly empowered. That's not too much to ask, is it?