Jumping To Conclusions

In 1986, the Supreme Court ruled that it was unconstitutional to exclude people from juries in criminal trials based on race. At the time, Warren Burger warned in dissent:

A further painful paradox of the Court's holding is that it is likely to interject racial matters back into the jury selection process, contrary to the general thrust of a long line of Court decisions and the notion of our country as a "melting pot." In Avery v. Georgia, 345 U.S. 559 (1953), for instance, the Court confronted a situation where the selection of the venire was done through the selection of tickets from a box; the names of whites were printed on tickets of one color and the names of blacks were printed on different color tickets. The Court had no difficulty in striking down such a scheme. Justice Frankfurter observed that

opportunity for working of a discriminatory system exists whenever the mechanism for jury selection has a component part, such as the slips here, that differentiates between white and colored. . . .

Id. at 564 (concurring) (emphasis added).

Today we mark the return of racial differentiation as the Court accepts a positive evil for a perceived one. Prosecutors and defense attorneys alike will build records in support of their claims that peremptory challenges have been exercised in a racially discriminatory fashion by asking jurors to state their racial background and national origin for the record, despite the fact that "such questions may be offensive to some jurors, and thus are not ordinarily asked on voir dire." People v. Motton, 39 Cal.3d 596, 604, 704 P.2d [p130] 176, 180, modified, 40 Cal.3d 4b (1985) (advance sheet). [n10] This process is sure to tax even the most capable counsel and judges, since determining whether a prima facie case has been established will "require a continued monitoring and recording of the ‘group' composition of the panel present and prospective. . . ." People v. Wheeler, 22 Cal.3d 258, 294, 583 P.2d 748, 773 (1978) (Richardson, J., dissenting).

Even after a "record" on this issue has been created, disputes will inevitably arise. In one case, for instance, a conviction was reversed based on the assumption that no blacks were on the jury that convicted a defendant. See People v. Motton, supra. However, after the court's decision was announced, Carolyn Pritchett, who had served on the jury, called the press to state that the court was in error, and that she was black. 71 A.B.A.J. 22 (Nov.1985). The California court nonetheless denied a rehearing petition. [n11]

Burger's worry was prescient, but I'll bet even he never realized how far it would go. Taking the balkanization of American society to its logical extreme, the New York Times reports that Mark Watson, a convicted black rapist in New York, is appealing his conviction, claiming Batson violations. The twist? Watson not face an all-white jury, as Batson did; in fact, there were ten blacks on Watson's jury.

So what's Watson's argument? They weren't the right kind of black.

In an unusual reflection of New York City's growing diversity, lawyers for a West Indian man are arguing that he was denied justice because the Bronx jury that convicted him of rape, sodomy and burglary included only American-born blacks while all five potential jurors who were West Indian were improperly excluded by the prosecution.

[...]

The lawsuit challenges the trial court judge's conclusion that West Indians are simply black people "who happen to be from the West Indies" and his rejection of the defense argument that "the absence of this group excludes a specific point of view that cannot be articulated by other members of the jury."

They go on to argue -- with sociological "evidence" -- that West Indians and American blacks have "separate experiences and values." A careful reader will note that this really has nothing to do with what the trial was supposed to be about -- guilt or innocence -- but that's beside the point, when you're playing the racial game. And as more facts make clear, it won't end with a division between American-born and West Indian blacks:

He also said that judges had not supported the defense claim that West Indians were systematically excluded and that, in fact, two of the jurors were West Indian (although Mr. Taglieri says they were of Puerto Rican descent).

Geographers would point out that Puerto Rico is in the West Indies, but that's also clearly irrelevant. There's no stopping point. If there are blacks on the jury, then they're not West Indian blacks. If they're West Indian blacks, then they're from Puerto Rico rather than Jamaica. If they're from Jamaica, well, they must be from the wrong province of Jamaica. If they're from the right province, they could be from the wrong city. Or from the wrong side of the tracks within that city. Whatever. And let's not forget the predictable claim that Jamaican women and Jamaican men have "separate experiences and values," and that the jury needs to include some of both. (Let's not even get into sexual orientation.)

I'd call it the law of unintended consequences, but that usually applies to unforeseen side effects, and as I noted above, Warren Burger predicted it at the time.

Only two things are certain: an imaginative defense attorney can always come up with a new ethnic category, and we'll never put this particular genie back in the bottle, as Democrats will scream "Racists Turning Back The Clock On Civil Rights!!!!!!" at any judge who tries.