Solving the Batson Paradox: Harmless Error, Jury Representation, and the Sixth Amendment

Yale Law Journal

Volumn 106, Issue 1, 1996, Pages 93-149

  Muller, Eric L ^a  

^a NONE

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EID: 0345791683     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797268     Document Type: Article

References (367)

1. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *109).
2. 476 U.S. 79 (1986).
3. An earlier case, Swain v. Alabama, 380 U.S. 202 (1965), had established the same general principle but insisted on a pattern of discrimination in case after case as proof of an equal protection violation. Id. at 224. Batson overruled this aspect of Swain, allowing proof of a prima facie case of impermissible discrimination from the facts of jury selection at a single trial. Batson, 476 U.S. at 93-96.
4. See Batson, 476 U.S. at 96-97.
5. See id. at 97-98.
6. See id.; Williams v. Groose, 77 F.3d 259, 261 (8th Cir. 1996) (allowing defendant to show that prosecutor's race-neutral reason is pretextual); cf. Purkett v. Elem, 115 S. Ct. 1769 (1995) (per curiam) (holding that race-neutral explanation need not be persuasive, or even plausible, to advance Batson analysis to ultimate question of purposeful discrimination).
7. 380 U.S. 202 (1965).
8. The Rehnquist Court has revealed its lack of enthusiasm for the claims of criminal defendants most clearly in its dramatic narrowing of the writ of habeas corpus. See, e.g., Herrera v. Collins, 506 U.S. 390 (1993) (rejecting claim of actual innocence based on newly discovered evidence as ground for federal habeas relief); Coleman v. Thompson, 501 U.S. 722 (1991) (raising standard habeas petitioner must meet to obtain federal court review of claim procedurally defaulted in state court); McCleskey v. Zant, 499 U.S. 467 (1991) (raising standard habeas petitioner must meet to obtain federal court review of claim raised in second or successive federal habeas petition); Teague v. Lane, 489 U.S. 288 (1989) (forbidding development of new rules of constitutional criminal procedure in federal habeas cases). For an excellent description of the recent revolution in habeas corpus law, see Larry W. Yackle, The Habeas Hagioscope, 66 S. CAL. L. REV. 2331 (1993). The Rehnquist Court's antipathy to the claims of criminal defendants has surfaced outside the habeas context as well. See, e.g., United States v. Williams, 504 U.S. 36 (1992) (holding federal prosecutor has no duty to disclose exculpatory information in his possession to grand juries considering criminal charges); Harmelin v. Michigan, 501 U.S. 957 (1991) (finding automatic imposition of mandatory sentence of life in prison without possibility of parole for possessing more than 650 grams of cocaine does not constitute cruel and unusual punishment within meaning of Eighth Amendment); Payne v. Tennessee, 501 U.S. 808 (1991) (allowing capital sentencing juries to consider victim impact statements); Stanford v. Kentucky, 492 U.S. 361 (1989) (allowing death penalty for murderer who was 16 years old when crime was committed); Penry v. Lynaugh, 492 U.S. 302 (1989) (finding execution of mentally retarded people convicted of capital offenses does not violate Eighth Amendment). But cf. Craig M. Bradley, Criminal Procedure in the Rehnquist Court: Has the Rehnquisition Begun?, 62 IND. L.J. 273, 275 (1987) (noting that review of Chief Justice Rehnquist's opinions "suggests that the future of criminal procedure, even in a Court in which the views of Justice Rehnquist held greater sway than they do now, would not differ as radically from current law as his critics suggest"). See generally Barry Friedman, Habeas and Hubris, 45 VAND. L. REV. 797, 821 (1992) ("[I]t is evident that this Court has a great hostility to the rights of criminal defendants.").
9. The Rehnquist Court has revealed its lack of enthusiasm for the claims of criminal defendants most clearly in its dramatic narrowing of the writ of habeas corpus. See, e.g., Herrera v. Collins, 506 U.S. 390 (1993) (rejecting claim of actual innocence based on newly discovered evidence as ground for federal habeas relief); Coleman v. Thompson, 501 U.S. 722 (1991) (raising standard habeas petitioner must meet to obtain federal court review of claim procedurally defaulted in state court); McCleskey v. Zant, 499 U.S. 467 (1991) (raising standard habeas petitioner must meet to obtain federal court review of claim raised in second or successive federal habeas petition); Teague v. Lane, 489 U.S. 288 (1989) (forbidding development of new rules of constitutional criminal procedure in federal habeas cases). For an excellent description of the recent revolution in habeas corpus law, see Larry W. Yackle, The Habeas Hagioscope, 66 S. CAL. L. REV. 2331 (1993). The Rehnquist Court's antipathy to the claims of criminal defendants has surfaced outside the habeas context as well. See, e.g., United States v. Williams, 504 U.S. 36 (1992) (holding federal prosecutor has no duty to disclose exculpatory information in his possession to grand juries considering criminal charges); Harmelin v. Michigan, 501 U.S. 957 (1991) (finding automatic imposition of mandatory sentence of life in prison without possibility of parole for possessing more than 650 grams of cocaine does not constitute cruel and unusual punishment within meaning of Eighth Amendment); Payne v. Tennessee, 501 U.S. 808 (1991) (allowing capital sentencing juries to consider victim impact statements); Stanford v. Kentucky, 492 U.S. 361 (1989) (allowing death penalty for murderer who was 16 years old when crime was committed); Penry v. Lynaugh, 492 U.S. 302 (1989) (finding execution of mentally retarded people convicted of capital offenses does not violate Eighth Amendment). But cf. Craig M. Bradley, Criminal Procedure in the Rehnquist Court: Has the Rehnquisition Begun?, 62 IND. L.J. 273, 275 (1987) (noting that review of Chief Justice Rehnquist's opinions "suggests that the future of criminal procedure, even in a Court in which the views of Justice Rehnquist held greater sway than they do now, would not differ as radically from current law as his critics suggest"). See generally Barry Friedman, Habeas and Hubris, 45 VAND. L. REV. 797, 821 (1992) ("[I]t is evident that this Court has a great hostility to the rights of criminal defendants.").
10. The Rehnquist Court has revealed its lack of enthusiasm for the claims of criminal defendants most clearly in its dramatic narrowing of the writ of habeas corpus. See, e.g., Herrera v. Collins, 506 U.S. 390 (1993) (rejecting claim of actual innocence based on newly discovered evidence as ground for federal habeas relief); Coleman v. Thompson, 501 U.S. 722 (1991) (raising standard habeas petitioner must meet to obtain federal court review of claim procedurally defaulted in state court); McCleskey v. Zant, 499 U.S. 467 (1991) (raising standard habeas petitioner must meet to obtain federal court review of claim raised in second or successive federal habeas petition); Teague v. Lane, 489 U.S. 288 (1989) (forbidding development of new rules of constitutional criminal procedure in federal habeas cases). For an excellent description of the recent revolution in habeas corpus law, see Larry W. Yackle, The Habeas Hagioscope, 66 S. CAL. L. REV. 2331 (1993). The Rehnquist Court's antipathy to the claims of criminal defendants has surfaced outside the habeas context as well. See, e.g., United States v. Williams, 504 U.S. 36 (1992) (holding federal prosecutor has no duty to disclose exculpatory information in his possession to grand juries considering criminal charges); Harmelin v. Michigan, 501 U.S. 957 (1991) (finding automatic imposition of mandatory sentence of life in prison without possibility of parole for possessing more than 650 grams of cocaine does not constitute cruel and unusual punishment within meaning of Eighth Amendment); Payne v. Tennessee, 501 U.S. 808 (1991) (allowing capital sentencing juries to consider victim impact statements); Stanford v. Kentucky, 492 U.S. 361 (1989) (allowing death penalty for murderer who was 16 years old when crime was committed); Penry v. Lynaugh, 492 U.S. 302 (1989) (finding execution of mentally retarded people convicted of capital offenses does not violate Eighth Amendment). But cf. Craig M. Bradley, Criminal Procedure in the Rehnquist Court: Has the Rehnquisition Begun?, 62 IND. L.J. 273, 275 (1987) (noting that review of Chief Justice Rehnquist's opinions "suggests that the future of criminal procedure, even in a Court in which the views of Justice Rehnquist held greater sway than they do now, would not differ as radically from current law as his critics suggest"). See generally Barry Friedman, Habeas and Hubris, 45 VAND. L. REV. 797, 821 (1992) ("[I]t is evident that this Court has a great hostility to the rights of criminal defendants.").
11. See J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419 (1994) (extending Batson to gender-based peremptory challenges); Georgia v. McCollum, 505 U.S. 42 (1992) (extending Batson to peremptory challenges by defense counsel in criminal cases); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (extending Batson to peremptory challenges by private litigants in civil cases); Powers v. Ohio, 499 U.S. 400 (1991) (extending Batson to objection by white defendant to exclusion of black jurors).
12. In this Article, I frequently refer to a "Batson violation" or a "Batson error" in a generic sense. I do not mean a scenario identical to the one in the Batson case itself (a prosecutor's discriminatory strike of a minority juror of the same race as the defendant), but any of the scenarios to which the Court has extended the Batson norm - situations where the juror and defendant are not of the same race, situations where the party engaging in discrimination is the defendant, and situations where an attorney strikes jurors on account of gender rather than race.
13. As the Court noted in Batson: [W]e express no view on whether it is more appropriate in a particular case, upon a finding of discrimination against black jurors, for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case, or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire. Batson, 476 U.S. at 100 n.24 (citation omitted). Some courts have determined that reinstating the wrongly challenged jurors is an appropriate remedy. See, e.g., State ex rel. Curry v. Bowman, 885 S.W.2d 421, 424-25 (Tex. Crim. App. 1993) (en banc) (approving practice of retaining improperly challenged jurors). Other courts have deemed dismissing the entire panel to be the "better practice." See, e.g., State v. McCollum, 433 S.E.2d 144, 159 (N.C. 1993). Charles Ogletree has argued that the alternative of dismissing the entire array and starting jury selection anew is insufficiently punitive. See Charles J. Ogletree, Just Say No!: A Proposal to Eliminate Racially Discriminatory Uses of Peremptory Challenges, 31 AM. CRIM. L. REV. 1099, 1116 (1994). On the other hand, Albert Alschuler has argued that neither of the Batson Court's two alternatives is satisfactory. See Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. CHI. L. REV. 153, 177-79 (1989).
14. As the Court noted in Batson: [W]e express no view on whether it is more appropriate in a particular case, upon a finding of discrimination against black jurors, for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case, or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire. Batson, 476 U.S. at 100 n.24 (citation omitted). Some courts have determined that reinstating the wrongly challenged jurors is an appropriate remedy. See, e.g., State ex rel. Curry v. Bowman, 885 S.W.2d 421, 424-25 (Tex. Crim. App. 1993) (en banc) (approving practice of retaining improperly challenged jurors). Other courts have deemed dismissing the entire panel to be the "better practice." See, e.g., State v. McCollum, 433 S.E.2d 144, 159 (N.C. 1993). Charles Ogletree has argued that the alternative of dismissing the entire array and starting jury selection anew is insufficiently punitive. See Charles J. Ogletree, Just Say No!: A Proposal to Eliminate Racially Discriminatory Uses of Peremptory Challenges, 31 AM. CRIM. L. REV. 1099, 1116 (1994). On the other hand, Albert Alschuler has argued that neither of the Batson Court's two alternatives is satisfactory. See Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. CHI. L. REV. 153, 177-79 (1989).
15. The inverse question - "what if the trial court errs, finding a Batson violation where there actually was not one?" - is a distinct issue that is outside the scope of this Article. For an explanation of why this issue is distinct from the one I address in this Article, see infra note 294.
16. In this Article, I address only the question of the appropriate remedy for Batson error on direct appeal. I do not consider the question of whether or when a remedy should be available on collateral review.
17. See infra note 148.
18. Susan N. Herman, Why the Court Loves Batson: Representation-Reinforcement. Colorblindness, and the Jury, 67 TUL. L. REV. 1807, 1831 n.98 (1993).
19. See infra Part III.
20. See infra text accompanying note 178.
21. I do not address the question of whether jury discrimination in civil cases violates the jury trial guarantee in the Seventh Amendment. See U.S. CONST. amend. VII.
22. 493 U.S. 474 (1990).
23. 497 U.S. 547 (1990), overruled by Adarand Constrs., Inc. v. Pena, 115 S. Ct. 2097 (1995). The Adarand opinion overruled Metro Broadcasting on the level of judicial scrutiny applicable to federal affirmative action plans; Adarand did not explicitly call into question Metro Broadcasting's broadcast diversity theory.
24. Metro Broadcasting, 497 U.S. at 582. Justice Powell made a similar argument on the benefits of racial and other sorts of diversity on university and medical school campuses in Regents of Univ. of California v. Bakke: The atmosphere of "speculation, experiment, and creation" - so essential to the quality of higher education - is widely believed to be promoted by a diverse student body. . . . An otherwise qualified medical student with a particular background - whether it be ethnic, geographic, culturally advantaged or disadvantaged - may bring to a professional school of medicine experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity. Bakke, 438 U.S. 265, 312-14 (1978) (opinion of Powell, J.).
25. Metro Broadcasting, 497 U.S. at 582.
26. 115 S. Ct. 2475 (1995).
27. See id. at 2494.
28. Id. at 2486 (quoting Shaw v. Reno, 113 S. Ct. 2816, 2827 (1993)).
29. The Court took this view even while engaging in some of that "irrational" stereotyping itself. The plaintiffs in Miller were white voters from the district that had been drawn to create a black majority. See id. at 2485. To establish their standing to challenge the districting plan, the plaintiffs had to show that they had suffered injury. See id.; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (summarizing standards for constitutional requirement of "injury in fact"). As Justice Stevens pointed out in his Miller dissent, the only harm that these plaintiffs suffered was the "representational harm" identified in Shaw, 113 S. Ct. at 2827; namely, the harm that arises in a racially gerrymandered district when the elected officials come to believe that their duty is to represent only the members of the dominant group, rather than their entire constituency. See Miller, 115 S. Ct. at 2497 (Stevens, J., dissenting). Ironically, this theory of standing depends on precisely the same inference about the viewpoint-predictive value of race that the Miller Court condemns. That is, it depends on the simple idea - openly scorned in Justice Kennedy's opinion for the Court - "that individuals of the same race share a single political interest." Id. at 2487. Thus, in the very same case, the Court both implicitly endorsed and explicitly condemned the idea that race predicts perspective.
30. This theory has gained currency in recent scholarship, particularly that of some critical race and feminist theorists. See T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1066, 1084 (1991) (arguing that "race may have an influence on how members of society understand their worlds and each other," and that "the views of subordinated groups on the extent and nature of subordination are likely to differ from those of majority groups"); Darryl K. Brown, The Role of Race in Jury Impartiality and Venue Transfers, 53 MD. L. REV. 107, 149-50 (1994) (summarizing "difference" scholarship and arguing that "[r]ace is a determinative prism through which people interpret social events and understand both human behavior and the law and through which they apply the latter to the former"); Ann E. Freedman, Sex Equality, Sex Differences, and the Supreme Court, 92 YALE L.J. 913, 965 (1983) (arguing "that women have distinctive perspectives that must play an important role in social transformation"); Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 323-35, 360 (1987) (urging reform of Critical Legal Studies movement to adopt more unambiguously distinctive perspective, or "normative intuitions[,] of those on the bottom").
31. This theory has gained currency in recent scholarship, particularly that of some critical race and feminist theorists. See T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1066, 1084 (1991) (arguing that "race may have an influence on how members of society understand their worlds and each other," and that "the views of subordinated groups on the extent and nature of subordination are likely to differ from those of majority groups"); Darryl K. Brown, The Role of Race in Jury Impartiality and Venue Transfers, 53 MD. L. REV. 107, 149-50 (1994) (summarizing "difference" scholarship and arguing that "[r]ace is a determinative prism through which people interpret social events and understand both human behavior and the law and through which they apply the latter to the former"); Ann E. Freedman, Sex Equality, Sex Differences, and the Supreme Court, 92 YALE L.J. 913, 965 (1983) (arguing "that women have distinctive perspectives that must play an important role in social transformation"); Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 323-35, 360 (1987) (urging reform of Critical Legal Studies movement to adopt more unambiguously distinctive perspective, or "normative intuitions[,] of those on the bottom").
32. This theory has gained currency in recent scholarship, particularly that of some critical race and feminist theorists. See T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1066, 1084 (1991) (arguing that "race may have an influence on how members of society understand their worlds and each other," and that "the views of subordinated groups on the extent and nature of subordination are likely to differ from those of majority groups"); Darryl K. Brown, The Role of Race in Jury Impartiality and Venue Transfers, 53 MD. L. REV. 107, 149-50 (1994) (summarizing "difference" scholarship and arguing that "[r]ace is a determinative prism through which people interpret social events and understand both human behavior and the law and through which they apply the latter to the former"); Ann E. Freedman, Sex Equality, Sex Differences, and the Supreme Court, 92 YALE L.J. 913, 965 (1983) (arguing "that women have distinctive perspectives that must play an important role in social transformation"); Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 323-35, 360 (1987) (urging reform of Critical Legal Studies movement to adopt more unambiguously distinctive perspective, or "normative intuitions[,] of those on the bottom").
33. This theory has gained currency in recent scholarship, particularly that of some critical race and feminist theorists. See T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1066, 1084 (1991) (arguing that "race may have an influence on how members of society understand their worlds and each other," and that "the views of subordinated groups on the extent and nature of subordination are likely to differ from those of majority groups"); Darryl K. Brown, The Role of Race in Jury Impartiality and Venue Transfers, 53 MD. L. REV. 107, 149-50 (1994) (summarizing "difference" scholarship and arguing that "[r]ace is a determinative prism through which people interpret social events and understand both human behavior and the law and through which they apply the latter to the former"); Ann E. Freedman, Sex Equality, Sex Differences, and the Supreme Court, 92 YALE L.J. 913, 965 (1983) (arguing "that women have distinctive perspectives that must play an important role in social transformation"); Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 323-35, 360 (1987) (urging reform of Critical Legal Studies movement to adopt more unambiguously distinctive perspective, or "normative intuitions[,] of those on the bottom").
34. By using the word "predictor," I do not mean to suggest that race or gender "predicts" a juror's perspective in the same way that, say, a drop in barometric pressure "predicts" a nasty turn in the weather. I am referring instead to something more vague and less confident, a suspicion or hunch that an attorney thinks is more likely true than not and one that the attorney therefore comfortably relies upon when exercising peremptory challenges.
35. When I speak of a juror's "perspective" or "viewpoint" in this Article, I mean a diffuse experiential filter through which a juror perceives the evidence and the events at trial. See Mark Cammack, In Search of the Post-Positivist Jury, 70 IND. L.J. 405, 416 (1995) ("All experience is mediated by preexisting knowledge structures, constellations of assumptions, interests, and purposes that filter and organize perception as it occurs."). I do not mean a conscious, hard-and-fast commitment to specific outcome-determinative beliefs. This sort of commitment is the stuff of true "bias," making a juror properly challengeable for cause.
36. 329 U.S. 187 (1946).
37. See generally McNabb v. United States, 318 U.S. 332, 340-41 (1943) (describing Supreme Court's supervisory power).
38. See Ballard, 329 U.S. at 193.
39. Id.
40. Id. at 194. Earlier in that same Term, the Court had flirted with the more radical idea that "wage earners," as a group, can rationally be presumed to share a distinctive viewpoint. In Thiel v. Southern Pac. Co., 328 U.S. 217 (1946), the Court exercised its supervisory power to condemn the practice of excluding all laborers paid a daily wage from jury service. See id. at 225. The district court had rested its decision squarely on the idea that wage earners, as a group, shared a common perspective. See id. at 220. The Supreme Court, however, did not analyze the problem in quite this way. Instead, it condemned the exclusion of wage earners as inconsistent with "the proper rules and principles of jury selection." Id. at 221. While suggesting that the exclusion of wage earners would do "violence to the democratic nature of the jury system" and "breathe life into any latent tendencies to establish the jury as the instrument of the economically and socially privileged," id. at 223-24, the Court nowhere suggested that the exclusion would strip the jury of a discrete and identifiable perspective.
41. 419 U.S. 522 (1975).
42. See id. at 523.
43. Id. at 528.
44. See id. at 533.
45. Id. at 531.
46. Id. at 532 (quoting Ballard v. United States, 329 U.S. 187, 194 (1946)).
47. Id. at 530.
48. 407 U.S. 493 (1972).
49. The Peters case produced three groups of three Justices. Justices Douglas, Stewart, and Marshall voted to grant the writ on a due process theory. See id. at 501-05. Justices Brennan, White, and Powell concurred in the judgment, preferring to grant the writ on the theory that the racial exclusion violated policy embodied in a federal statute. See id. at 505-07. Chief Justice Burger and Justices Blackmun and Rehnquist dissented. See id. at 507-13. While the case produced no majority or plurality opinion, only three of the Justices explicitly disagreed with Justice Marshall's comments about the nature of the harm caused by the exclusion of black jurors. See id. at 510-11. For a thorough analysis of the various opinions in Peters v. Kiff - from a person who was involved in the formulation ot Justice Marshall's opinion - see Barbara D. Underwood, Ending Race Discrimination in Jury Selection: Whose Right Is It, Anyway?, 92 COLUM. L. REV. 725, 739-42 (1992).
50. The "impartial jury" requirement of the Sixth Amendment was not available as a basis for decision because the trial in Peters had preceded Duncan r. Louisiana, 391 U.S. 145 (1968) (applying Sixth Amendment right to petit jury to states through Fourteenth Amendment), and Duncan did not apply retroactively, see DeStefano v. Woods, 392 U.S. 631 (1968). See Peters, 407 U.S. at 496. Justice Marshall relied instead on the due process notion that a tribunal must be impartial. See id. at 501-02.
51. Peters, 407 U.S. at 503.
52. Id. at 503-04. In support of this proposition, Justice Marshall cited Justice Douglas's words about the effect of gender exclusion from Ballard. See id. at 504 n. 12 (quoting Ballard v. United States, 329 U.S. 187, 193-94 (1946)).
53. See Vikram David Amar, Jury Service as Political Participation Akin to Voting, 80 CORNELL L. REV. 203, 210 (1995) (noting "great deal of tension" between Court's older and most recent cases on issue of whether group affiliation predicts juror perspective).
54. 476 U.S. 79 (1986).
55. See supra note 3.
56. See Batson, 476 U.S. at 89.
57. Id. at 87 (quoting Thiel v. Southern Pac. Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting)).
58. 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting).
59. Id. at 230 (Frankfurter, J., dissenting); see also id. (Frankfurter, J., dissenting) ("The exclusion of the daily wage earners does not remove a group who would, in the language of Mr. Justice Holmes, 'act otherwise than those who are drawn would act.'") (quoting Rawlins v. Georgia, 201 U.S. 638, 640 (1906)).
60. In the Court's next case addressing Batson, Powers v. Ohio, 499 U.S. 400 (1991), the Court said nothing more about the issue. It merely cited Batson for the proposition that juror race "simply 'is unrelated'" to juror fitness. Id. at 410 (quoting Batson, 476 U.S. at 87).
61. 500 U.S. 614 (1991).
62. Id. at 631.
63. Id.
64. I am not suggesting that the Court's rejection of the theory of difference was its only, or even its primary, reason for holding race-based peremptory challenges to be impermissible. The Court has stated a number of reasons why such challenges violate the law: they deny the equal protection rights of the challenged jurors, harm the community, and compromise the integrity of the justice system. See infra Part IV. Under prevailing law, however, see infra Parts III-IV, these reasons have little to do with the question at the heart of this Article: What harm does Batson error pose to the reliability of verdicts?
65. 114 S. Ct. 1419 (1994).
66. Cf. Edmonson, 500 U.S. at 642-43 (O'Connor, J., dissenting) ("In a civil trial, the attorneys for each side . . . use their peremptory strikes in direct opposition to one another, and for precisely contrary ends."); Gray v. Mississippi, 481 U.S. 648, 679 (1987) (Scalia, J., dissenting) ("Since defendants presumably use their peremptory challenges in the opposite fashion, the State's action simply does not result in juries 'deliberately tipped toward' conviction." (citation omitted)).
67. See J.E.B., 114 S. Ct. at 1422.
68. Id. at 1426 n.9.
69. Id. at 1427. This was an ironic criticism for the Court to make. The best support available for the State's claim was the Court's own words in Ballard v. United States, 329 U.S. 187 (1946), see supra text accompanying notes 30-34, which the J.E.B. Court itself quoted extensively and approvingly. See J.E.B., 114 S. Ct. at 1424. The J.E.B. majority's vacillation on the validity of the Court's earlier insight in Ballard seems to confirm Justice Scalia's assertion that the Court's J.E.B. opinion is "in opposition to its earlier Sixth Amendment 'fair-cross-section' cases." Id. at 1436 (Scalia, J., dissenting).
70. J.E.B., 114 S. Ct. at 1427 n.11.
71. Id.
72. Batson v. Kentucky, 476 U.S. 79, 121 (1986) (Burger, C.J., dissenting) (quoting Barbara Babcock, Voir Dire: Preserving "Its Wonderful Power", 27 STAN. L. REV. 545, 553-54 (1975)). The Chief Justice makes a similar point when he suggests that '"each race may have its own special concerns, or even may tend to favor its own . . . .'" Id. at 123 (Burger, C.J., dissenting) (quoting United States v. Leslie, 783 F.2d 541, 554 (5th Cir. 1986) (en banc)).
73. Id. at 121 (Burger, C.J., dissenting) (quoting Babcock, supra note 66, at 554).
74. Justice Rehnquist explained: The use of group affiliations, such as age, race, or occupation, as a "proxy" for potential juror partiality, based on the assumption or belief that members of one group are more likely to favor defendants who belong to the same group, has long been accepted as a legitimate basis for the State's exercise of peremptory challenges. . . . Indeed, . . . the use of such "proxies" by both the State and the defendant may be extremely useful in eliminating from the jury persons who might be biased in one way or another. Id. at 138-39 (Rehnquist, J., dissenting) (citations omitted).
75. 499 U.S. 400 (1991).
76. Id. at 424 (Scalia, J., dissenting).
77. 505 U.S. 42, 68 (1992) (O'Connor, J., dissenting) ("It is by now clear that conscious and unconscious racism can affect the way white jurors perceive minority defendants . . . ."); see id. at 60 (Thomas, J., concurring in judgment) (agreeing with Justice O'Connor); see also Brown v. North Carolina, 479 U.S. 940, 941 (1986) (O'Connor, J., concurring in denial of certiorari) ("We ought not delude ourselves that the deep faith that race should never be relevant has completely triumphed over the painful social reality that, sometimes, it may be.").
78. J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1435 (1994) (Rehnquist, C.J., dissenting).
79. Id. (Rehnquist, C.J., dissenting).
80. Id. at 1436 (Scalia, J., dissenting). The French expression means "there is no difference between men and women."
81. Id. at 1432 (O'Connor, J., concurring). Justice O'Connor is perhaps not a true dissenter from the Batson line of cases; for example, she concurred in the Court's opinion in Batson itself, and concurred in J.E.B. because she felt that the nation's commitment to nondiscrimination in jury selection outweighed the litigants' desires to remove certain classes of jurors who might rationally be presumed to harbor defined views. See id. (O'Connor, J., concurring). Still, of all of the Justices who have endorsed Batson and its extension to at least some new contexts, Justice O'Connor has been the most vocal in expressing reservations about the rule of Batson and its impact on the institution of the peremptory challenge. See id. at 1431 (O'Connor, J., concurring) ("Because I believe the peremptory remains an important litigator's tool and a fundamental part of the process of selecting impartial juries, our increasing limitation of it gives me pause."); Brown, 479 U.S. at 941-42 (O'Connor, J., concurring in denial of certiorari) (emphasizing that Batson limitation on unfettered exercise of peremptories ought to be limited to race-based peremptories).
82. As some have suggested, it seems odd to ask whether group affiliation is a rational proxy for perspective for the purposes of the equal protection analysis in Batson. Equal protection law demands more than a rational basis of a state actor who would intentionally disadvantage a person on account of race or gender. See Miller v. Johnson, 115 S. Ct. 2475, 2490 (1995) (requiring State to present "compelling" interest to defend racial classification successfully); Craig v. Boren, 429 U.S. 190, 197 (1976) (requiring State to present "important" interest to defend gender classification successfully). Thus the normative philosophy of the Equal Protection Clause may be at war with even a minimally rational race-or gender-based peremptory challenge. See Batson v. Kentucky, 476 U.S. 79, 123-25 (1986) (Burger, C.J., dissenting); Alschuler, supra note 11, at 201-03. This criticism, however, might focus on the wrong issue. The relevant question might not be whether rationally exercised peremptory challenges are compelling or important state interests, but whether such challenges serve compelling or important state interests. See J.E.B., 114 S. Ct. at 1438 (Scalia, J., dissenting); Batson, 476 U.S. at 125 (Burger, C.J., dissenting). In any event, this Article is not concerned with the question of whether Batson itself represents a sound application of equal protection analysis; it is concerned wish the separate question of whether Batson presents a sound account of the fair trial harm caused by the discriminatory peremptory challenge. See infra note 325. The Court's newest member, Justice Breyer, has had no real opportunity so make his views known on the question of whether group affiliation is a rational predictor of juror perspective.
83. See supra note 30-46 and accompanying text.
84. See 476 U.S. at 121 (Burger, C.J., dissenting) (quoting Babcock, supra note 66, at 553-54).
85. Nancy J. King, Postconviction Review of Jury Discrimination: Measuring the Effects of Juror Race on Jury Decisions, 92 MICH. L. REV. 63, 99 (1993); see also Cammack, supra note 29, as 478-79 (summarizing data from mock jury studies); Roberta K. Flowers, Does It Cost Too Much? A 'Difference' Look at J.E.B. v. Alabama, 64 FORDHAM L. REV. 491, 516-20 (1995) (summarizing social science and literary materials); Sheri Lynn Johnson, Bluck Innocence and the White Jury, 83 MICH. L. REV. 1611, 1625-43 (1985) (same). But see Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 TEX. L. REV. 1041, 1080 (1995) (disputing predictive value of group affiliation for voting preferences).
86. Nancy J. King, Postconviction Review of Jury Discrimination: Measuring the Effects of Juror Race on Jury Decisions, 92 MICH. L. REV. 63, 99 (1993); see also Cammack, supra note 29, as 478-79 (summarizing data from mock jury studies); Roberta K. Flowers, Does It Cost Too Much? A 'Difference' Look at J.E.B. v. Alabama, 64 FORDHAM L. REV. 491, 516-20 (1995) (summarizing social science and literary materials); Sheri Lynn Johnson, Bluck Innocence and the White Jury, 83 MICH. L. REV. 1611, 1625-43 (1985) (same). But see Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 TEX. L. REV. 1041, 1080 (1995) (disputing predictive value of group affiliation for voting preferences).
87. Nancy J. King, Postconviction Review of Jury Discrimination: Measuring the Effects of Juror Race on Jury Decisions, 92 MICH. L. REV. 63, 99 (1993); see also Cammack, supra note 29, as 478-79 (summarizing data from mock jury studies); Roberta K. Flowers, Does It Cost Too Much? A 'Difference' Look at J.E.B. v. Alabama, 64 FORDHAM L. REV. 491, 516-20 (1995) (summarizing social science and literary materials); Sheri Lynn Johnson, Bluck Innocence and the White Jury, 83 MICH. L. REV. 1611, 1625-43 (1985) (same). But see Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 TEX. L. REV. 1041, 1080 (1995) (disputing predictive value of group affiliation for voting preferences).
88. Nancy J. King, Postconviction Review of Jury Discrimination: Measuring the Effects of Juror Race on Jury Decisions, 92 MICH. L. REV. 63, 99 (1993); see also Cammack, supra note 29, as 478-79 (summarizing data from mock jury studies); Roberta K. Flowers, Does It Cost Too Much? A 'Difference' Look at J.E.B. v. Alabama, 64 FORDHAM L. REV. 491, 516-20 (1995) (summarizing social science and literary materials); Sheri Lynn Johnson, Bluck Innocence and the White Jury, 83 MICH. L. REV. 1611, 1625-43 (1985) (same). But see Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 TEX. L. REV. 1041, 1080 (1995) (disputing predictive value of group affiliation for voting preferences).
89. Sen King, supra note 79, at 81-85.
90. See id. at 88; see also Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendments Seizures: Should Race Matter?, 26 VAL. U. L. REV. 243, 250-62 (1991) (analyzing relations between African-American men and police); Richard A. Wasserstrom, Racism, Sexism, and Preferential Treatment: An Approach to the Topics, 24 UCLA L. REV. 581, 598 (1977) (describing unconscious racial prejudice based on perceptions of police behavior).
91. See id. at 88; see also Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendments Seizures: Should Race Matter?, 26 VAL. U. L. REV. 243, 250-62 (1991) (analyzing relations between African-American men and police); Richard A. Wasserstrom, Racism, Sexism, and Preferential Treatment: An Approach to the Topics, 24 UCLA L. REV. 581, 598 (1977) (describing unconscious racial prejudice based on perceptions of police behavior).
92. See King, supra note 79, at 88-89.
93. See id. at 95-98. Jury sentencing, even in the noncapital context, is still permitted in some circumstances in Arkansas, Kentucky, and Texas. See ARK. CODE ANN. § 5-4-103 (Michie 1993) (permitting jury sentencing of defendants convicted of felony after jury trial); KY. REV. STAT. ANN. § 532.055(2) (Michie Supp. 1994) (same); 3A TEX. CRIM. PROC. CODE ANN. § 37.07(2)(b) (West Supp. 1996) (permitting jury sentencing only on election of defendant).
94. See REID HASTIE ET AL., INSIDE THE JURY 140-42 (1983); Marder, supra note 79, at 1070-73 (citing studies suggesting difference between men's and women's assessments of reliability of eyewitness identifications).
95. Some might argue that the public's opinion on this issue is the most important of all, since it is the public that must ultimately accept or reject criminal verdicts as reliable pronouncements on basic moral questions. See Akhil Reed Amar, Sixth Amendment First Principles, 84 GEO. L.J. 641, 680-81 (1996) (arguing that "the public trial was designed . . . to satisfy the public that truth had prevailed at trial" and to be "confidence-enhancing"). On the subject of the public acceptance of jury verdicts and the jury's public role, see Gary Goodpaster, On the Theory of American Adversary Criminal Trial, 78 J. CRIM. L. & CRIMINOLOGY 118, 145-52 (1987); Marder, supra note 79, at 1052-63, 1077, 1095; Charles Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 HARV. L. REV. 1357, 1366-69 (1985).
96. Some might argue that the public's opinion on this issue is the most important of all, since it is the public that must ultimately accept or reject criminal verdicts as reliable pronouncements on basic moral questions. See Akhil Reed Amar, Sixth Amendment First Principles, 84 GEO. L.J. 641, 680-81 (1996) (arguing that "the public trial was designed . . . to satisfy the public that truth had prevailed at trial" and to be "confidence-enhancing"). On the subject of the public acceptance of jury verdicts and the jury's public role, see Gary Goodpaster, On the Theory of American Adversary Criminal Trial, 78 J. CRIM. L. & CRIMINOLOGY 118, 145-52 (1987); Marder, supra note 79, at 1052-63, 1077, 1095; Charles Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 HARV. L. REV. 1357, 1366-69 (1985).
97. Some might argue that the public's opinion on this issue is the most important of all, since it is the public that must ultimately accept or reject criminal verdicts as reliable pronouncements on basic moral questions. See Akhil Reed Amar, Sixth Amendment First Principles, 84 GEO. L.J. 641, 680-81 (1996) (arguing that "the public trial was designed . . . to satisfy the public that truth had prevailed at trial" and to be "confidence-enhancing"). On the subject of the public acceptance of jury verdicts and the jury's public role, see Gary Goodpaster, On the Theory of American Adversary Criminal Trial, 78 J. CRIM. L. & CRIMINOLOGY 118, 145-52 (1987); Marder, supra note 79, at 1052-63, 1077, 1095; Charles Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 HARV. L. REV. 1357, 1366-69 (1985).
98. See, e.g., Female Jurors Assert Sexism Hurt Menendez Deliberations, N.Y. TIMES, Jan. 31, 1994, at A13; Amy Wallace & Bob Pool, Jurors' Rift Emerged Early and Ran Deep, L.A. TIMES, Jan. 29, 1994, at A1. When the Menendez brothers were convicted by a single jury at their retrial, press reports noted that unlike the earlier juries, which had broken down into "cliques" largely along gender lines, the seven-man, five-woman jury on retrial "seem[ed] to get along." Ann W. O'Neill, Menendez Retrial Plays Differently, L.A. TIMES, Mar. 3, 1996, at A1; see also Ann W. O'Neill, Menendezes Are Found Guilty of Killing Parents, L.A. TIMES, Mar. 21, 1996, at A1.
99. See, e.g., Female Jurors Assert Sexism Hurt Menendez Deliberations, N.Y. TIMES, Jan. 31, 1994, at A13; Amy Wallace & Bob Pool, Jurors' Rift Emerged Early and Ran Deep, L.A. TIMES, Jan. 29, 1994, at A1. When the Menendez brothers were convicted by a single jury at their retrial, press reports noted that unlike the earlier juries, which had broken down into "cliques" largely along gender lines, the seven-man, five-woman jury on retrial "seem[ed] to get along." Ann W. O'Neill, Menendez Retrial Plays Differently, L.A. TIMES, Mar. 3, 1996, at A1; see also Ann W. O'Neill, Menendezes Are Found Guilty of Killing Parents, L.A. TIMES, Mar. 21, 1996, at A1.
100. See, e.g., Female Jurors Assert Sexism Hurt Menendez Deliberations, N.Y. TIMES, Jan. 31, 1994, at A13; Amy Wallace & Bob Pool, Jurors' Rift Emerged Early and Ran Deep, L.A. TIMES, Jan. 29, 1994, at A1. When the Menendez brothers were convicted by a single jury at their retrial, press reports noted that unlike the earlier juries, which had broken down into "cliques" largely along gender lines, the seven-man, five-woman jury on retrial "seem[ed] to get along." Ann W. O'Neill, Menendez Retrial Plays Differently, L.A. TIMES, Mar. 3, 1996, at A1; see also Ann W. O'Neill, Menendezes Are Found Guilty of Killing Parents, L.A. TIMES, Mar. 21, 1996, at A1.
101. See, e.g., Female Jurors Assert Sexism Hurt Menendez Deliberations, N.Y. TIMES, Jan. 31, 1994, at A13; Amy Wallace & Bob Pool, Jurors' Rift Emerged Early and Ran Deep, L.A. TIMES, Jan. 29, 1994, at A1. When the Menendez brothers were convicted by a single jury at their retrial, press reports noted that unlike the earlier juries, which had broken down into "cliques" largely along gender lines, the seven-man, five-woman jury on retrial "seem[ed] to get along." Ann W. O'Neill, Menendez Retrial Plays Differently, L.A. TIMES, Mar. 3, 1996, at A1; see also Ann W. O'Neill, Menendezes Are Found Guilty of Killing Parents, L.A. TIMES, Mar. 21, 1996, at A1.
102. See Georgia v. McCollum, 505 U.S. 42, 61 n.1 (1992) (Thomas, J., concurring) (noting frequent use of phrase "all white jury" in major newspapers).
103. See, e.g., Tony Freemantle, Jury Makeup Favors Simpson, Experts Say: Eight of Twelve Picked to Hear Case Are Black, HOUS. CHRON., Nov. 5, 1994, at 5; Janet Gilmore & Mark Katches, More Men, Latinos in Simpson Alternate Jury Pool, L.A. DAILY NEWS, Dec. 7, 1994, at N6; Mark Katches & Janet Gilmore, Jury Pool's Racial Composition Favors Simpson, Analysts Say, L.A. DAILY NEWS, Nov. 1, 1994, at N1; Mostly Black and Female Jurors Make Up Alternate O.J. Panel, FT. LAUDERDALE SUN-SENTINEL, Dec. 9, 1994, at 3A; Roger Simon, Poor Blacks May Hold Simpson's Fate, BALTIMORE SUN, Oct. 12, 1994, at 1A.
104. See, e.g., Tony Freemantle, Jury Makeup Favors Simpson, Experts Say: Eight of Twelve Picked to Hear Case Are Black, HOUS. CHRON., Nov. 5, 1994, at 5; Janet Gilmore & Mark Katches, More Men, Latinos in Simpson Alternate Jury Pool, L.A. DAILY NEWS, Dec. 7, 1994, at N6; Mark Katches & Janet Gilmore, Jury Pool's Racial Composition Favors Simpson, Analysts Say, L.A. DAILY NEWS, Nov. 1, 1994, at N1; Mostly Black and Female Jurors Make Up Alternate O.J. Panel, FT. LAUDERDALE SUN-SENTINEL, Dec. 9, 1994, at 3A; Roger Simon, Poor Blacks May Hold Simpson's Fate, BALTIMORE SUN, Oct. 12, 1994, at 1A.
105. See, e.g., Tony Freemantle, Jury Makeup Favors Simpson, Experts Say: Eight of Twelve Picked to Hear Case Are Black, HOUS. CHRON., Nov. 5, 1994, at 5; Janet Gilmore & Mark Katches, More Men, Latinos in Simpson Alternate Jury Pool, L.A. DAILY NEWS, Dec. 7, 1994, at N6; Mark Katches & Janet Gilmore, Jury Pool's Racial Composition Favors Simpson, Analysts Say, L.A. DAILY NEWS, Nov. 1, 1994, at N1; Mostly Black and Female Jurors Make Up Alternate O.J. Panel, FT. LAUDERDALE SUN-SENTINEL, Dec. 9, 1994, at 3A; Roger Simon, Poor Blacks May Hold Simpson's Fate, BALTIMORE SUN, Oct. 12, 1994, at 1A.
106. See, e.g., Tony Freemantle, Jury Makeup Favors Simpson, Experts Say: Eight of Twelve Picked to Hear Case Are Black, HOUS. CHRON., Nov. 5, 1994, at 5; Janet Gilmore & Mark Katches, More Men, Latinos in Simpson Alternate Jury Pool, L.A. DAILY NEWS, Dec. 7, 1994, at N6; Mark Katches & Janet Gilmore, Jury Pool's Racial Composition Favors Simpson, Analysts Say, L.A. DAILY NEWS, Nov. 1, 1994, at N1; Mostly Black and Female Jurors Make Up Alternate O.J. Panel, FT. LAUDERDALE SUN-SENTINEL, Dec. 9, 1994, at 3A; Roger Simon, Poor Blacks May Hold Simpson's Fate, BALTIMORE SUN, Oct. 12, 1994, at 1A.
107. See, e.g., Tony Freemantle, Jury Makeup Favors Simpson, Experts Say: Eight of Twelve Picked to Hear Case Are Black, HOUS. CHRON., Nov. 5, 1994, at 5; Janet Gilmore & Mark Katches, More Men, Latinos in Simpson Alternate Jury Pool, L.A. DAILY NEWS, Dec. 7, 1994, at N6; Mark Katches & Janet Gilmore, Jury Pool's Racial Composition Favors Simpson, Analysts Say, L.A. DAILY NEWS, Nov. 1, 1994, at N1; Mostly Black and Female Jurors Make Up Alternate O.J. Panel, FT. LAUDERDALE SUN-SENTINEL, Dec. 9, 1994, at 3A; Roger Simon, Poor Blacks May Hold Simpson's Fate, BALTIMORE SUN, Oct. 12, 1994, at 1A.
108. See, e.g., Jim Newton & Andrea Ford, Criminalist Concedes Errors; Panelist Ousted, L.A. TIMES, Apr. 6, 1995, at A1 (dismissing juror "did not change the gender or ethnic makeup of the panel . . . as one black woman was replaced with another").
109. See, e.g., A Profile of the Jury, N.Y. TIMES, Oct. 4, 1995, at A11.
110. See Alschuler, supra note 11, at 169 n.65 ("[J]ust as blacks and whites may favor Jesse Jackson for President in different ratios, blacks and whites may - if regarded collectively and statistically - approach the issues that arise in some criminal cases differently."); Katherine Goldwasser, Limiting a Criminal Defendant's Use of Peremptory Challenges: On Symmetry and the Jury in a Criminal Trial, 102 HARV. L. REV. 808, 834 n. 165 (1989); Ogletree, supra note 11, at 1104 ("[T]he roles and life experiences of men and women . . . are still unfortunately different enough that it is rational to believe that randomly selected women will view a case differently from randomly selected men.").
111. See Charles J. Ogletree, Jr., Arizona v. Fulminante: The Harm of Applying Harmless Error to Coerced Confessions, 105 HARV. L. REV. 152, 156-61 (1991).
112. See id. at 156.
113. 56 Cal. 406 (1880).
114. See ROGER J. TRAYNOR, THE RIDDLE OF HARMLESS ERROR 3-4 (1970) (citing St. Clair, 56 Cal. 406).
115. See U.S. CONST. amend. V ("No person . . . shall be compelled in any criminal case to be a witness against himself.").
116. See, e.g., Haynes v. Washington, 373 U.S. 503, 518-19 (1963) (citing Rogers v. Richmond, 365 U.S. 534, 541 (1961)).
117. See Ogletree, supra note 92, at 156.
118. See Act of February 26, 1919, ch. 48, 40 Stat. 1181. The idea contained in that Act survives both in the federal statute books and in the federal rules. See 28 U.S.C. § 2111 (1994) ("On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties,"); FED. R. CRIM. P. 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.").
119. See Chapman v. California, 386 U.S. 18, 22 (1967) ("All 50 States have harmless-error statutes or rules.").
120. See id. at 42-45 (Stewart, J., concurring in judgment).
121. 386 U.S. 18 (1967).
122. See id. at 19, 24-26.
123. The Chapman Court noted: At the time of the trial, Art. I, § 13 of the State's Constitution provided that 'in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.' Id. at 19 (quoting CAL. CONST. art. I, § 13).
124. See Griffin v. California, 380 U.S. 609, 613-15 (1965). The Fifth Amendment was made applicable to the states through the Fourteenth Amendment in Malloy v. Hogan, 378 U.S. 1 (1964).
125. See Chapman, 386 U.S. at 42-45 (Stewart, J., concurring in judgment).
126. There was something contrived about using Chapman for this purpose, since the Court went on to hold that the Griffin error in the case was not harmless. See id. at 24-26. One might have expected the Court to wait to craft a harmless error rule in a case where the rule actually made a difference. Still, the gratuitous Chapman rule has never been treated as dictum.
127. Id. at 22.
128. Id. at 23 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)). The Court has created considerable confusion in the lower courts by continually reformulating the Chapman harmless error standard in subsequent cases. See Martha A. Field, Assessing the Harmlessness of Federal Constitutional Error - A Process in Need of a Rationale, 125 U. PA. L. REV. 15 (1976); Gregory Mitchell, Against "Overwhelming" Appellate Activism: Constraining Harmless Error Review, 82 CAL. L. REV. 1335, 1341-47 (1994); Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 COLUM. L. REV. 79, 126-42 (1988).
129. Id. at 23 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)). The Court has created considerable confusion in the lower courts by continually reformulating the Chapman harmless error standard in subsequent cases. See Martha A. Field, Assessing the Harmlessness of Federal Constitutional Error - A Process in Need of a Rationale, 125 U. PA. L. REV. 15 (1976); Gregory Mitchell, Against "Overwhelming" Appellate Activism: Constraining Harmless Error Review, 82 CAL. L. REV. 1335, 1341-47 (1994); Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 COLUM. L. REV. 79, 126-42 (1988).
130. Id. at 23 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)). The Court has created considerable confusion in the lower courts by continually reformulating the Chapman harmless error standard in subsequent cases. See Martha A. Field, Assessing the Harmlessness of Federal Constitutional Error - A Process in Need of a Rationale, 125 U. PA. L. REV. 15 (1976); Gregory Mitchell, Against "Overwhelming" Appellate Activism: Constraining Harmless Error Review, 82 CAL. L. REV. 1335, 1341-47 (1994); Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 COLUM. L. REV. 79, 126-42 (1988).
131. Chapman, 386 U.S. at 22.
132. Chief Justice Rehnquist included an exhaustive list of these errors (as of 1991) in his opinion in Arizona v. Fulminante, 499 U.S. 279, 306-07 (1991) (Rehnquist, C.J., for Court in part and dissenting in part). Since Fulminante, the list has continued to lengthen. See Brecht v. Abrahamson, 113 S. Ct. 1710, 1713-14 (1993) (holding prosecution's use of defendant's post-Miranda silence for impeachment purposes amenable to harmless error review); Yates v. Evatt, 500 U.S. 391, 402 (1991) (applying harmless error analysis to taint of unconstitutional burden-shifting jury instruction).
133. Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (citing United States v. Nobles, 422 U.S. 225, 230 (1975)).
134. Rose v. Clark, 478 U.S. 570, 577-78 (1986) (citing Powell v. Alabama, 287 U.S. 45 (1932)). For a detailed analysis of the Court's shift to a reliability-based model of criminal procedure, see Tom Stacy. The Search for the Truth in Constitutional Criminal Procedure, 91 COLUM. L. REV. 1369 (1991). See also King, supra note 79, at 116 (noting that "the goal of ensuring the factual accuracy and reliability of criminal convictions and sentences . . . has become the driving force behind much of the criminal procedure jurisprudence of the present Court"); Ogletree, supra note 92, at 162 ("[A]ccuracy in the determination of guilt is the value that matters most to the Court in the criminal context."); Louis Michael Seidman, Factual Guilt and the Burger Court: An Examination of Continuity and Change in Criminal Procedure, 80 COLUM. L. REV. 436, 437 (1980) (noting that Burger Court's rhetoric "focused on the need to reorient the criminal justice system toward a model designed primarily to achieve accurate factual determinations of guilt or innocence in individual cases").
135. Rose v. Clark, 478 U.S. 570, 577-78 (1986) (citing Powell v. Alabama, 287 U.S. 45 (1932)). For a detailed analysis of the Court's shift to a reliability-based model of criminal procedure, see Tom Stacy. The Search for the Truth in Constitutional Criminal Procedure, 91 COLUM. L. REV. 1369 (1991). See also King, supra note 79, at 116 (noting that "the goal of ensuring the factual accuracy and reliability of criminal convictions and sentences . . . has become the driving force behind much of the criminal procedure jurisprudence of the present Court"); Ogletree, supra note 92, at 162 ("[A]ccuracy in the determination of guilt is the value that matters most to the Court in the criminal context."); Louis Michael Seidman, Factual Guilt and the Burger Court: An Examination of Continuity and Change in Criminal Procedure, 80 COLUM. L. REV. 436, 437 (1980) (noting that Burger Court's rhetoric "focused on the need to reorient the criminal justice system toward a model designed primarily to achieve accurate factual determinations of guilt or innocence in individual cases").
136. Fulminante, 499 U.S. at 308 (quoting Van Arsdall, 475 U.S. at 681).
137. Chapman v. California, 386 U.S. 18, 23-24 (1967).
138. See id. at 23 n.8 (citing Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel); Payne v. Arkansas, 356 U.S. 560 (1958) (coerced confessions); Tumey v. Ohio, 273 U.S. 510 (1927) (unbiased judge)). Indeed, on this point, the Chapman Court was unanimous: All nine Justices agreed that these three types of error could never be harmless. See Chapman, 386 U.S. at 42-44 (Stewart, J., concurring in judgment); id. at 52 n.7 (Harlan, J., dissenting).
139. 466 U.S. 668 (1984).
140. The Court held that a defendant seeking to prove that his attorney was constitutionally ineffective must prove that "counsel's representation fell below an objective standard of reasonableness." id. at 688, and must also show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694.
141. Id. at 686.
142. Id. at 687 (emphasis added).
143. For a persuasive account of the Court's growing "preoccupation with reliability" in its criminal procedure decisions of the 1980s, see Stacy & Dayton, supra note 109, at 82-88.
144. 499 U.S. 279 (1991).
145. Fulminante produced a somewhat confusing alignment of Justices in its several opinions. The net result was that Fulminante's confession was held to have been coerced, but the admission of that confession was held not to be harmless error. A majority of the Court (Justices White, Marshall, Blackmun, Stevens, and Scalia) held that Fulminante's confession was coerced. See id. at 287. A different majority (Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Souter) held that notwithstanding contrary language in Chapman, the admission of coerced confessions should be subjected to harmless error analysis. See id. at 306-12; id. at 313-14 (Kennedy, J., concurring in judgment). Yet a third majority (Justices White, Marshall, Blackmun, Stevens, and Kennedy) held that on the facts of this case, the admission of Fulminante's confession was not harmless. See id. at 295-302; id. at 313-14 (Kennedy, J., concurring in judgment). In its method of subjecting coerced confessions to harmless error analysis, Fulminante presents an odd parallel to Chapman. In Chapman, where the Court first adopted a harmless error rule, the Court need not have formulated a harmless error rule at all, since the Justices were of the view that the prosecutor's summation comments on the defendants' failure to testify were unquestionably harmful. See supra text accompanying note 106. In Fulminante, four of the five Justices who agreed that harmless error analysis should apply to the admission of coerced confessions were also of the view that there was no error in the case at all - that is, that the confession was not coerced. Consequently, much of the groundbreaking law of harmless error has been made by Justices who, under the terms of their own analysis, need not have reached the question of harmless error at all.
146. See Fulminante, 499 U.S. at 310 (Rehnquist, C.J., for Court in part and dissenting in part).
147. Id. at 311 (Rehnquist, C.J., for Court in part and dissenting in part).
148. Id. at 309 (Rehnquist, C.J., for Court in part and dissenting in part).
149. See id. (Rehnquist, C.J., for Court in part and dissenting in part) (citing Vasquez v. Hillery, 474 U.S. 254, 264 (1986) (grand jury discrimination); Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984) (public trial); McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (self-representation at trial); Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel); Tumey v. Ohio, 273 U.S. 510, 523 (1927) (biased judge)). The Hillery case is something of an aberration on this list; it is discussed more fully infra Section IV.D. In Sullivan v. Louisiana, 508 U.S. 275 (1993), the Court added another constitutional error to the list of errors subject to automatic reversal - a constitutionally deficient instruction on the standard of proof beyond a reasonable doubt. Interestingly, however, the Court did not rely primarily on Fulminante's distinction between "structural" and "trial" errors. Rather, the Sullivan Court held that the trial court's failure to give an accurate instruction on proof beyond a reasonable doubt deprived the defendant of a "jury" within the meaning of the Sixth Amendment, and thereby left the reviewing court without a true "verdict" on which to perform harmless error analysis. See id. at 277-78. The Court relied on Fulminante's distinction between "structural" and "trial" error only in passing, as an alternative basis for the decision. See id. at 278-79. Perhaps the Sullivan Court's reluctance to embrace Fulminante's dichotomy of errors reflects some of the same discomfort that that schema has created in the law reviews. See, e.g., Linda E. Carter, Harmless Error in the Penally Phase of a Capital Case: A Doctrine Misunderstood and Misapplied, 28 GA. L. REV. 125, 140-43 (1993); Henry Monaghan, Harmless Error and the Valid Rule Requirement, 1989 SUP. CT. REV. 195, 204; Ogletree, supra note 92, at 162-64; Stephen L. Earnest, Recent Decision, 61 MISS. L.J. 445, 457-58 (1991).
150. See id. (Rehnquist, C.J., for Court in part and dissenting in part) (citing Vasquez v. Hillery, 474 U.S. 254, 264 (1986) (grand jury discrimination); Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984) (public trial); McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (self-representation at trial); Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel); Tumey v. Ohio, 273 U.S. 510, 523 (1927) (biased judge)). The Hillery case is something of an aberration on this list; it is discussed more fully infra Section IV.D. In Sullivan v. Louisiana, 508 U.S. 275 (1993), the Court added another constitutional error to the list of errors subject to automatic reversal - a constitutionally deficient instruction on the standard of proof beyond a reasonable doubt. Interestingly, however, the Court did not rely primarily on Fulminante's distinction between "structural" and "trial" errors. Rather, the Sullivan Court held that the trial court's failure to give an accurate instruction on proof beyond a reasonable doubt deprived the defendant of a "jury" within the meaning of the Sixth Amendment, and thereby left the reviewing court without a true "verdict" on which to perform harmless error analysis. See id. at 277-78. The Court relied on Fulminante's distinction between "structural" and "trial" error only in passing, as an alternative basis for the decision. See id. at 278-79. Perhaps the Sullivan Court's reluctance to embrace Fulminante's dichotomy of errors reflects some of the same discomfort that that schema has created in the law reviews. See, e.g., Linda E. Carter, Harmless Error in the Penally Phase of a Capital Case: A Doctrine Misunderstood and Misapplied, 28 GA. L. REV. 125, 140-43 (1993); Henry Monaghan, Harmless Error and the Valid Rule Requirement, 1989 SUP. CT. REV. 195, 204; Ogletree, supra note 92, at 162-64; Stephen L. Earnest, Recent Decision, 61 MISS. L.J. 445, 457-58 (1991).
151. See id. (Rehnquist, C.J., for Court in part and dissenting in part) (citing Vasquez v. Hillery, 474 U.S. 254, 264 (1986) (grand jury discrimination); Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984) (public trial); McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (self-representation at trial); Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel); Tumey v. Ohio, 273 U.S. 510, 523 (1927) (biased judge)). The Hillery case is something of an aberration on this list; it is discussed more fully infra Section IV.D. In Sullivan v. Louisiana, 508 U.S. 275 (1993), the Court added another constitutional error to the list of errors subject to automatic reversal - a constitutionally deficient instruction on the standard of proof beyond a reasonable doubt. Interestingly, however, the Court did not rely primarily on Fulminante's distinction between "structural" and "trial" errors. Rather, the Sullivan Court held that the trial court's failure to give an accurate instruction on proof beyond a reasonable doubt deprived the defendant of a "jury" within the meaning of the Sixth Amendment, and thereby left the reviewing court without a true "verdict" on which to perform harmless error analysis. See id. at 277-78. The Court relied on Fulminante's distinction between "structural" and "trial" error only in passing, as an alternative basis for the decision. See id. at 278-79. Perhaps the Sullivan Court's reluctance to embrace Fulminante's dichotomy of errors reflects some of the same discomfort that that schema has created in the law reviews. See, e.g., Linda E. Carter, Harmless Error in the Penally Phase of a Capital Case: A Doctrine Misunderstood and Misapplied, 28 GA. L. REV. 125, 140-43 (1993); Henry Monaghan, Harmless Error and the Valid Rule Requirement, 1989 SUP. CT. REV. 195, 204; Ogletree, supra note 92, at 162-64; Stephen L. Earnest, Recent Decision, 61 MISS. L.J. 445, 457-58 (1991).
152. See, e.g., Scarpa v. Dubois, 38 F.3d 1, 14 (1st Cir. 1994) ("In effect, then, the harmfulness of structural errors can be conclusively presumed."), cert. denied, 115 S. Ct. 940 (1995).
153. Fulminante, 499 U.S. at 310 (Rehnquist, C.J., for Court in part and dissenting in part) (emphasis added) (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)).
154. Id. at 309 (Rehnquist, C.J., for Court in part and dissenting in part); see also Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993) (holding that structural errors "require[] automatic reversal of the conviction because they infect the entire trial process"); Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (noting that some constitutional errors are automatically reversible because their effects are "fundamental and pervasive" (emphasis added)).
155. Vasquez v. Hillery, 474 U.S. 254 (1986), sits uncomfortably in Fulminante's list of structural errors requiring automatic reversal. After Fulminante, appellate reversal requires some type of harm to the reliability of the petit jury's verdict - either demonstrable harm in the case of trial error, or presumable harm in the case of structural error. The Hillery case, however, concerned the exclusion of blacks from the grand jury. See id. at 255-56. Modern grand juries are notoriously dependent on, and controlled by, the prosecutor. See infra text accompanying note 206. Whatever might be said of the harm that racial exclusion causes to the verdict pronounced by an independent and autonomous petit jury, the same cannot be said for the impact of racial exclusion on the indictment produced by a subservient grand jury. See infra Section IV.D. The right to self-representation at trial also seems out of place in Fulminante's list. That constitutional right, recognized in Faretta v. California, 422 U.S. 806 (1975), hardly seems to enhance the reliability of criminal verdicts. Indeed, it might be seen to do just the opposite. If the right to representation by trained counsel is essential to the rigorous process of adversarial testing that we take to establish truth, as the Court has said it is, see Gideon v. Wainwright, 372 U.S. 335, 342-45 (1963), then it is difficult to understand how the right of a layperson to refuse trained counsel and go it alone does not frustrate this search. Nonetheless, the Court has continued to treat the denial of the right to self-representation as a structural error requiring reversal. See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) ("Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to 'harmless error' analysis."). The rule of automatic reversal for denial of the right to self-representation is at odds with the single-minded focus on reliable verdicts that animates Fulminante and most of the Court's other criminal procedure cases of the last fifteen years.
156. Fulminante, 499 U.S. at 308 (Rehnquist, C.J., for Court in part and dissenting in part) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)) (emphasis added).
157. Stacy & Dayton, supra note 109, at 80-81. Stacy and Dayton were not here referring to Fulminante, as their excellent article preceded that decision. They were, however, referring to a number of cases from the late 1970s and early-to mid-1980s that suggested the approach to the criminal verdict that Fulminante adopted. See id. at 80 n.9.
158. See Jordan Steiker, Innocence and Federal Habeas, 41 UCLA L. REV. 303, 304 (1993) ("As the Court has narrowed the reach of the writ, it has repeatedly emphasized that the availability of habeas relief should depend in large measure on whether the petitioner is factually innocent.").
159. 489 U.S. 288 (1989).
160. Id. at 313 (O'Connor, J., plurality opinion).
161. See, e.g., Coleman v. Thompson, 501 U.S. 722, 748 (1991) (holding that where habeas petitioner missed filing deadline for direct appeal from state court conviction, federal district court may address claims of constitutional error only if petitioner can show cause for default and actual prejudice flowing from claimed error).
162. See, e.g., McCleskey v. Zant, 499 U.S. 467, 493 (1991) (adopting cause-and-prejudice test for claims of constitutional error not presented in first federal habeas petition).
163. See, e.g., Schlup v. Delo, 115 S. Ct. 851, 862 (1995) (allowing successive petition upon appropriate showing of actual innocence).
164. See Teague, 489 U.S. at 310, 316. Although Teague produced only a plurality opinion, its rule has been applied in subsequent majority opinions. See, e.g., Butler v. McKellar, 494 U.S. 407, 409 (1990) (applying Teague to question of lawfulness of custodial interrogation on particular set of facts); Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (stating that Teague applies to whether Constitution permits execution of mentally retarded prisoner).
165. Teague, 489 U.S. at 313.
166. Id. at 312 (quoting Desist v. United States, 394 U.S. 244, 262 (1969) (Harlan, J., dissenting)); see also id. at 320-22 (Stevens, J., concurring) (faulting Teague plurality for limiting federal habeas court's power to announce new rules to "factual innocence" standard).
167. Fulminante is, of course, a case about direct appellate review, rather than collateral review, and the Court has admittedly made clear that "collateral review is different from direct review." Brecht v. Abrahamson, 113 S. Ct. 1710, 1719 (1993). Yet the differences between direct and collateral review do not suggest that the Court has one image of what a criminal verdict is in direct review cases and a completely different image of the criminal verdict in collateral review cases. On collateral review, principles of comity and federalism counsel greater hesitation before a federal reviewing court will disturb a state criminal conviction. See id. at 1720-21. The Court held in Brecht, for example, that courts should use a less rigorous harmless error standard in habeas cases than in direct review cases. See id. at 1721-22 (directing habeas courts to determine whether error "had substantial and injurious effect or influence in determining the verdict" rather than whether error was "harmless beyond a reasonable doubt"). This does not mean, however, that a criminal verdict is any less a finding of historical fact in one setting than the other. It simply means that a habeas court must treat that finding more deferentially in order to avoid creating excessive friction between state and federal courts.
168. Smith v. Murray, 477 U.S. 527, 545 (1986) (Stevens, J., dissenting).
169. I do not mean to suggest that concerns for the factual accuracy of criminal verdicts have driven each and every one of the Burger and Rehnquist Courts' habeas opinions. Notably, the Court has declined several significant invitations to eliminate habeas review for claims not directly impugning the factual accuracy of verdicts. See, e.g., Withrow v. Williams, 507 U.S. 680 (1993) (allowing habeas review of claimed violation of defendant's rights under Miranda v. Arizona, 384 U.S. 436 (1966)); Rose v. Mitchell, 443 U.S. 545 (1979) (allowing habeas review of claim of racial discrimination in selection of grand jury). I do believe, however, that most of the Court's work in the habeas area for the last two decades has been animated by concerns for factual accuracy. See supra note 134. Indeed, I argue in this Article that the Court's heightened concern for factual accuracy, especially in recent years, has likely undermined the reasoning in Mitchell. See infra notes 200-04 and accompanying text.
170. Of course, this is a victory that has been realized only in the appellate setting. Trial courts still enforce some rules that are designed primarily to deter police misconduct, irrespective of impact on the reliability of the jury's factfinding. Obvious examples of such rules are the exclusionary rule, which requires the suppression of evidence seized in violation of the defendant's Fourth Amendment rights, see Mapp v. Ohio, 367 U.S. 643, 655 (1961), and the rule of Miranda v. Arizona, 384 U.S. 436 (1966), which forbids the prosecution from using an admission taken from a suspect in police custody who has not been informed of her constitutional rights to silence and counsel. On appeal, however, the prophylactic and deterrence-based rationales for these rules collapse. Violations of these rules at trial are not automatically reversible they are reversible only if they harm the reliability of the verdict. See Arizona v. Fulminante, 499 U.S. 279, 292 n.6 (1991) (White, J., for Court in part and dissenting in part) (citing cases establishing that Miranda violations are reviewed for harmless error); Bumper v. North Carolina, 391 U.S. 543, 550 (1968) (holding violations of exclusionary rule subject to harmless error analysts); cf. Nix v. Williams, 467 U.S. 431, 443 n.4 (1984) (adopting "inevitable discovery" exception to Fourth Amendment exclusionary rule in part on basis of exception's conceptual similarity to independent source doctrine).
171. Mark Cammack has perceptively tied this prevailing view of the criminal verdict to the empiricist epistemology of the Enlightenment. See Cammack, supra note 29, at 410-15, 422-62; see also Brown, supra note 27, at 140-47 (discussing "foundationalist" and "antifoundationalist" understandings of jury decisionmaking). This philosophy of knowledge works from the premise that the world has an objective, empirical reality independent of the mind of a person observing it. The observer's mind is a blank slate; it comes to know the world around it only through the observer's senses. What the observer knows is "true" only to the extent that the observer's mental representation accurately corresponds to the objective, empirical nature of the thing observed. See Cammack, supra note 29, at 410-15. Cammack notes that "[i]n recent years, the premises of empiricism . . . have been subjected to sustained attack across all of the disciplines they once held." Id. at 415. The main attack has been "contextualist" - an attack on the notion that a bright line separates the subjective mind of the observer from the objective world that he observes. See id. at 415-21. This modern epistemology emphasizes the importance of context to the construction of knowledge, insisting that "representations of reality are shaped by the values and purposes of their human creators." Id. at 417. Cammack suggests that the entire Court has clung to the empiricist model of the criminal verdict in Batson and its other jury selection cases. See id. at 456. I do not agree; I see in the opinions of Batson's opponents a strong - and quite powerful - commitment to contextualism. See infra note 213 and accompanying text.
172. The Court has addressed two related questions. First, in Vasquez v. Hillery, 474 U.S. 254, 255-56 (1986), the Court held that racial discrimination in the selection of grand jurors required reversal of the defendant's conviction, even though the defendant had been properly convicted by a lawfully constituted petit jury. Whether Hillery should be extended to the Batson setting, and indeed, whether Hillery was correctly decided, is discussed infra Section IV.D. Second, the Court has determined that Batson does not apply retroactively on collateral review of convictions that became final before Batson was decided. See Allen v. Hardy, 478 U.S. 255, 260 (1986) (per curiam). Part of the Court's rationale was that Batson error does no serious harm to criminal verdicts. See infra note 187. One lower federal court has addressed the question of whether Batson error can be harmless on direct appeal. In United States v. Thompson, 827 F.2d 1254 (9th Cir. 1987), the court, citing Hillery, explicitly rejected the government's argument that Batson error can be harmless. See id. at 1261. Other federal courts and judges have suggested that Batson error cannot be Fulminante-style trial error but is instead structural error. See, e.g., Rosa v. Peters, 36 F.3d 625, 634 n.17 (7th Cir. 1994); Ramseur v. Beyer, 983 F.2d 1215, 1225-26 n.6 (3d Cir. 1992); Blair v. Armontrout, 976 F.2d 1130, 1143 n.2 (8th Cir. 1992) (Heaney, J., concurring in part and dissenting in part). The state courts have taken conflicting positions. Some have stated that Batson error cannot be harmless. See, e.g., K.S. v. Carr, 618 So. 2d 707, 711 (Ala. 1993); State v. Pharris, 846 P.2d 454, 459 (Utah Ct. App. 1993); cf. Ex parte Yelder, 575 So. 2d 137, 138-39 (Ala. 1991) (requiring court to presume prejudice on defendant's claim of ineffective assistance of counsel for failure to raise Batson objection). Others have held that Batson error can be harmless in certain circumstances. See, e.g., Macon v. State, 652 So. 2d 331, 333 (Ala. Crim. App. 1994) (finding Batson error harmless where excused juror would have been excused in any event to tend to ill relative); State v. Vincent, 755 S.W.2d 400, 403-04 (Mo. Ct. App. 1988) (finding black defendant suffered no harm from prosecution's use of all six of its peremptories to exclude blacks, because jury that was seated still had five blacks); Seubert v. State, 749 S.W.2d 585, 588 (Tex. Ct. App. 1988) (finding Batson error might be harmless where blacks were not significantly underrepresented on jury compared to percentage in group from which venire was drawn), rev'd on other grounds, 787 S.W.2d 68 (Tex. Crim. App. 1990) (en banc). Outside the context of the Batson problem, the Court has selected appellate remedies for certain errors in jury selection. For example, the Court has held that the erroneous denial of a "for cause" challenge is not automatically reversible so long as the biased juror is removed by a peremptory challenge. See Ross v. Oklahoma, 487 U.S. 81, 86-88 (1988). The circuits are split on whether the erroneous denial of a peremptory challenge on other than Batson grounds should be automatically reversible. See, e.g., Kirk v. Raymark Indus., 61 F.3d 147, 158-62 (3d Cir. 1995) (yes); United States v. Annigoni, 57 F.3d 739, 745 (9th Cir. 1995) (no); see also infra note 294 (describing Annigoni).
173. See Batson v. Kentucky, 476 U.S. 79, 100 (1986); Powers v. Ohio, 499 U.S. 400, 416 (1991) (reversing conviction); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631 (1991) (reversing judgment); J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1430 (1994) (reversing judgment); see also Powers, 499 U.S. at 414 (noting that Court has "recognized that discrimination in the jury selection process may lead to the reversal of a conviction").
174. Sometimes the parties invited the Court to make this assumption: in Powers, the State conceded that the conviction should be reversed if the Court accepted the while defendant's argument that he had standing to object to the dismissal of black jurors. See Powers, 499 U.S. at 416.
175. But see Dawson v. Delaware, 503 U.S. 159, 169 (1992) (Blackmun, J., concurring) (placing Batson error on list of errors to which Court has refused to apply harmless error analysis).
176. Powers, 499 U.S. at 402.
177. Smith v. Texas, 311 U.S. 128, 130 (1940) (holding that facially race-neutral system for grand jury selection was applied in illegally discriminatory manner).
178. Edmonson, 500 U.S. at 628.
179. See Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991) (Rehnquist, C.J., for Court in part and dissenting in part).
180. This is precisely what the Court has said of the error of discrimination in the selection of grand jurors. See Fulminante, 499 U.S. at 310 (Rehnquist, C.J., for Court in part and dissenting in part); Vasquez v. Hillery, 474 U.S. 254, 260-63 (1986). But see infra Section IV.D (arguing that reasoning of Hillery decision is unpersuasive and obsolete).
181. See infra text accompanying notes 194-97.
182. When I say "automatic affirmance," I do not mean that all cases presenting Batson error must be affirmed on appeal. Cases presenting Batson error might also present some other kind of error that does in fact warrant reversal. What I am suggesting is simply that a Batson violation - as currently defined - can never supply a reason for reversing a conviction.
183. For a careful student-written analysis of the possible types and victims of Batson error, see David Zonana, Note, The Effect of Assumptions About Racial Bias on the Analysis of Batson's Three Harms and the Peremptory Challenge, 1994 ANN. SURV. AM. L. 203.
184. See Batson v. Kentucky, 476 U.S. 79, 85-87 (1986).
185. See id. at 87.
186. See id. at 87-88.
187. Not every instance of jury discrimination will victimize all three of these individuals or groups. For example, in a McCollum situation, where the defendant himself engages in illegal discrimination, the defendant may not be the one harmed. In this situation, the Court has made clear that the important interests at stake are those of the jurors and the community. See Georgia v. McCollum, 505 U.S. 42, 48-50 (1992).
188. See Paul Brest, The Supreme Court, 1975 Term - Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 8-11 (1976) (noting that courts heighten scrutiny of racial classifications because such classifications cause stigmatic harm to targeted groups); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 349-55 (1987).
189. See Paul Brest, The Supreme Court, 1975 Term - Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 8-11 (1976) (noting that courts heighten scrutiny of racial classifications because such classifications cause stigmatic harm to targeted groups); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 349-55 (1987).
190. 100 U.S. 303 (1879).
191. Id. at 308.
192. See Batson v. Kentucky, 476 U.S. 79, 85-87 (1986).
193. See, e.g., Batson, 476 U.S. at 87.
194. Powers v. Ohio, 499 U.S. 400, 409 (1991).
195. The Court's decisions in McCollum, Edmonson, and Powers all rested primarily on the excluded juror's rights. See Georgia v. McCollum, 505 U.S. 42, 48-49 (1992); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619 (1991); Powers, 499 U.S. at 409. According to Barbara Underwood, this is precisely as it should be. See Underwood, supra note 43. at 742-50 (arguing that jurors' equal protection rights provide proper basis for Barson and its progeny).
196. See Powers, 499 U.S. at 411-12; Batson, 476 U.S. at 86-87.
197. Batson, 476 U.S. at 87; see also McCollum, 505 U.S. at 49-50 (explaining harm that Batson violations cause to public confidence in administration of justice, especially in race-related cases).
198. Strauder v. West Virginia, 100 U.S. 303, 309 (1879).
199. Id. at 308.
200. See supra notes 108-47 and accompanying text (explaining development of Court's view that only non-harmless error is reversible).
201. Arizona v. Fulminante, 499 U.S. 279 (1991).
202. See id. at 311-12 (Rehnquist, C.J., for Court in part and dissenting in part).
203. I am here describing how the rule of appellate reversal appears to operate in the post-Fulminante world. I am not making a normative argument that appellate reversal ought not be available to remedy the stigmatic injury occasioned by racial discrimination in jury selection. In my view, Fulminante was a mistake; the appellate process ought to protect more values than just verdict reliability. Nevertheless, the Court decided otherwise in Fulminante, and we must now assess the impact of that case's narrowing of the function of appellate reversal on all varieties of trial error, including Batson error.
204. Powers v. Ohio, 499 U.S. 400, 406-07 (1991) (quoting ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 334-37 (Schocken ed., 1st ed. 1961)). The Powers Court also noted that the jury system '"postulates a conscious duty of participation in the machinery of justice,'" id. at 406 (quoting Balzac v. Porto Rico, 258 U.S. 298, 310 (1922)), and that "[j]ury service preserves the democratic element of the law," id. at 407.
205. See id. at 409. See generally Underwood, supra note 43, at 745-47 (elaborating on participational injury caused by exclusion from jury service).
206. See infra note 196.
207. See supra notes 171-72 and accompanying text.
208. Batson v. Kentucky, 476 U.S. 79, 86 (1986).
209. Id. at 87 (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *350).
210. Id. at 86. Of course, if this is the true harm that Batson error causes to the fairness of trials, then the Court seems to have lost its nerve just four years later in Holland v. Illinois, when it held that the Sixth Amendment's guarantee of an "impartial jury" does not forbid discrimination in the selection of petit juries. See Holland v. Illinois, 493 U.S. 474, 478, 487 (1990). For a discussion of Holland, see infra Section VI.B.
211. The Court's unease in stating and defining the fair trial impact of Batson error may stem from the fact that Batson and its progeny are equal protection cases. In using equal protection to guarantee fair trials, the Court has pressed the Equal Protection Clause into a criminal-process service to which it is not obviously suited. See infra notes 246-47 and accompanying text. The more obvious textual anchor for an effort to ensure full representation of the community on the petit jury is the Sixth Amendment's guarantee of an impartial jury in all criminal cases. See U.S. CONST. amend. VI. The Court, however, has not interpreted that language in this way. See Holland v. Illinois, 493 U.S. 474 (1990), discussed infra at text accompanying notes 272-303.
212. In Allen v. Hardy, 478 U.S. 255 (1986) (per curiam), the Court addressed whether Batson should apply retroactively to convictions that had become final before Batson was decided. Part of the Court's inquiry was whether Batson had been '"designed to enhance the accuracy of criminal trials.'" Id. at 259 (quoting Solem v. Stumes, 465 U.S. 638, 643 (1984)). On this score, the Allen Court merely noted that "the rule in Batson may have some bearing on the truthfinding function of a criminal trial." Id. at 259 (emphasis added). But the Court much more confidently asserted that Batson "strengthens public confidence in the administration of justice." Id.
213. Powers v. Ohio, 499 U.S. 400 (1991).
214. Id. at 411-12 (citation omitted).
215. See supra Part II.
216. For a suggestion that this odd result flows from Strauder v. West Virginia, 100 U.S. 303 (1879), see Zonana, supra note 159, at 209-10.
217. J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1437 (1991) (Scalia, J., dissenting).
218. I should make clear here that I am not arguing that this conclusion about the fair trial harm of Batson error is correct. In fact, I make the opposite claim in Part VI. I am arguing here only that this counterintuitive conclusion about the fair trial harm of Batson error flows from the Batson Court's premises, taken together with the Fulminante approach to appellate remedies.
219. See Arizona v. Fulminante, 499 U.S. 279, 309 (1991).
220. Id. at 309-10.
221. Indeed, it does more: it seems to undermine Strauder itself. Strauder was a direct appeal from a criminal conviction obtained from a jury from which all blacks had been excluded by law. The Court automatically reversed the conviction, without evaluating the harmfulness of the equal protection violation to the reliability of the verdict. See Strauder v. West Virginia, 100 U.S. 303, 312 (1879). Fulminante, of course, requires actual or presumed harm to the reliability of the verdict as a condition of appellate reversal. Batson's proponents on the Court suggest that there is, by definition, no such harm. Under current law, then, it would seem (startlingly) that Strauder was wrongly decided on the question of remedy - that the Court wrongly deployed a rule of automatic reversal to police an equal protection norm that had nothing to do with the factual reliability of verdicts. The same would be true of Whitus v. Georgia, 385 U.S. 545 (1967); Hernandez v. Texas, 347 U.S. 475 (1954); and Patton v. Mississippi, 332 U.S. 463 (1947), in all of which the Court reversed convictions to punish equal protection violations injury selection.
222. See, e.g., Batson v. Kentucky, 476 U.S. 79, 87 (1986).
223. 474 U.S. 254 (1986).
224. See Rosa v. Peters, 36 F.3d 625, 634 n.17 (7th Cir. 1994); Blair v. Armontrout, 976 F.2d 1130, 1143 n.2 (8th Cir. 1992) (Heaney, J., concurring in part and dissenting in part); United States v. Thompson, 827 F.2d 1254, 1261 (9th Cir. 1987); Batiste v. State, 888 S.W.2d 9, 13-14 (Tex. Crim. App. 1994); Herman, supra note 15, at 1831 n.98.
225. 443 U.S. 545 (1979).
226. Id. at 556.
227. Id. at 558.
228. See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (recognizing "principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence"); see also Stacy & Dayton, supra note 109, at 80-88 (discussing increasing use of harmless constitutional error doctrine).
229. See Vasquez v. Hillery, 474 U.S. 254, 264 (1985).
230. See id. at 263.
231. See, e.g., Akhil Reed Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. DAVIS L. REV. 1169, 1175 (1995); Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 CORNELL L. REV. 260, 263 (1995).
232. See, e.g., Akhil Reed Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. DAVIS L. REV. 1169, 1175 (1995); Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 CORNELL L. REV. 260, 263 (1995).
233. See Hillery, 474 U.S. at 266-67 (O'Connor, J., concurring in judgment).
234. See id. at 264 n.6.
235. Justice Brennan had retired by the time of Fulminante.
236. I mean here that Hillery is conceptually obsolete, not that it is no longer good law. In Fulminante, Chief Justice Rehnquist cited the error in Hillery as one of the few structural errors that still trigger automatic reversal. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (Rehnquist, C.J., for Court in part and dissenting in part). This citation should not, however, be taken as an endorsement of Hillery's reasoning; the Chief Justice was, after all, a dissenter in Hillery. See Hillery, 474 U.S. at 267 (Powell, J., joined by Burger, C.J. & Rehnquist, J., dissenting). At most, the citation simply reflects the Chief Justice's deference to precedent.
237. See J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1437 (1994) (Scalia, J., dissenting) (joined by Rehnquist, C.J. & Thomas, J.) ("But if men and women jurors are (as the Court thinks) fungible, then the only arguable injury from the prosecutor's 'impermissible' use of male sex as the basis for his peremptories is injury to the stricken juror, not to the defendant.").
238. See supra notes 126-31 and accompanying text.
239. J.E.B., 114 S. Ct. at 1437 (Scalia, J., dissenting); see also id. at 1432 (O'Connor, J., concurring) ("We know that like race, gender matters."); id. at 1436 (Scalia, J., dissenting) (expressing "personal[]" belief that a juror's gender has some statistically significant predictive value in certain types of cases); Georgia v. McCollum, 505 U.S. 42, 61 (1992) (Thomas, J., concurring in judgment) (noting "common experience and common sense" suggest link between juror race and trial outcome in at least some cases); Batson v. Kentucky, 476 U.S. 79, 121 (1986) (Burger, C.J., dissenting) (endorsing view that "certain classes of people" have statistically demonstrable "predispositions"); id. at 138-39 (Rehnquist, J., dissenting) (accepting group affiliation as "'proxy' for potential juror partiality"). Justice O'Connor, of course, is not technically an opponent of Batson or its extension to at least certain other contexts. See supra note 75. She does, however, share with Batson's opponents the view that a prospective juror's race or gender is a rational predictor of his or her perspective. See J.E.B., 114 S. Ct. at 1431-32 (O'Connor, J., concurring).
240. See J.E.B., 114 S. Ct. al 1437 (Scalia, J., dissenting); Powers v. Ohio, 499 U.S. 400, 423-24 (1991) (Scalia, J., dissenting); Batson, 476 U.S. at 137-38 (Rehnquist, J., dissenting).
241. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 644 (1991) (Scalia, J., dissenting) (arguing that peremptories can sometimes assure racially diverse jury); Powers, 499 U.S. at 426-27 (Scalia, J., dissenting) (noting that Holland suggested that race-based peremptories may increase fairness); Holland v. Illinois, 493 U.S. 474, 481, 483-84 (1990); Batson, 476 U.S. at 139 (Rehnquist, J., dissenting).
242. 478 U.S. 255 (1986).
243. See id. at 259-61.
244. Justices Marshall and Stevens, both in the majority in Batson, dissented in Allen. See id. at 261-64. Justice Blackmun, also a member of the Batson majority, objected to the summary disposition in Allen, and would have set the case for oral argument. See id. at 261 (Blackmun, J., dissenting).
245. Id. at 259.
246. Id.
247. See Batson v. Kentucky, 476 U.S. 79, 121 (1986) (Burger, C.J., dissenting) (suggesting statistical basis underlying use of race as proxy for bias); id. at 138-39 (Rehnquist, J., dissenting) (suggesting that age, race, and occupation as "'proxy' for potential juror partiality" can be useful for eliminating biased jurors).
248. Justice O'Connor was also in the Allen majority. She, however, had joined the Court's opinion in Batson. See Batson, 476 U.S. at 111 (O'Connor, J., concurring).
249. 489 U.S. 288 (1989).
250. See id. at 292-93.
251. See id. at 293.
252. See id. at 295-96.
253. See id. at 299, 314-15 (plurality opinion). But see id. at 340-42 (Brennan, J., dissenting) (noting Teague's Sixth Amendment claim seeks only "procedures that allow a fair possibility for the jury to reflect a cross-section of the community").
254. 493 U.S. 474, 478 (1990) (5-4 decision). For a discussion of the Court's opinion in Holland, see infra Section VI.B.
255. The Teague plurality consisted of Chief Justice Rehnquist, and Justices O'Connor, Scalia, and Kennedy. See Teague, 489 U.S. at 292.
256. See id. at 301.
257. Id. at 313.
258. Id. at 315.
259. See J.E.B v. Alabama ex rel. T.B., 114 S. Ct. 1419 (1994).
260. See id. at 1422.
261. See id. at 1436-39 (Scalia, J., dissenting).
262. Id. at 1436 (Scalia, J., dissenting).
263. Id. at 1437 (Scalia, J., dissenting).
264. Id. (Scalia, J., dissenting).
265. Id. (Scalia, J., dissenting).
266. See, e.g., id. at 1438-39 (Scalia, J., dissenting) ("The biases that go along with group characteristics tend to be biases that the juror himself does not perceive, so that it is no use asking about them."); Powers v. Ohio, 499 U.S. 400, 423-24 (1991) (Scalia, J., dissenting).
267. Powers, 499 U.S. at 424 (Scalia, J., dissenting).
268. Such an error could not conceivably be labelled trial error and then subjected to harmless error analysis. In Sullivan v. Louisiana, 508 U.S. 275 (1993), a constitutionally defective instruction on reasonable doubt deprived the murder defendant of his right to trial by a "jury" of the sort guaranteed by the Sixth Amendment. See id. at 276-78. Justice Scalia, writing for a unanimous Court, easily brushed aside the State's claim that the denial of the defendant's right to a jury that met the Sixth Amendment's standards was amenable to harmless error analysis. See id. at 278-81. He did so in the face of strong evidence of the defendant's guilt. See State v. Sullivan, 596 So. 2d 177, 180-81, 186 (La. 1992) (noting evidence of defendant's guilt included inculpatory confession from immunized accomplice, eyewitness identifications, and expert ballistics testimony linking bullets removed from victim's body and from crime scene to gun found in apartment where defendant had gone after crime), rev'd sub nom. Sullivan v. Louisiana, 508 U.S. 275 (1993). Justice Scalia insisted that it was senseless to inquire whether a real "jury" of the kind guaranteed by the Sixth Amendment would undoubtedly have convicted the defendant on such evidence; the point was that the evidence had never been reviewed by such a jury in the first place because of a faulty reasonable doubt instruction. See Sullivan, 113 S. Ct. at 279-80. It stands to reason that harmless error review would be equally inappropriate in other circumstances where a defendant is denied the "jury" guaranteed by the Sixth Amendment. Cf. Batson v. Kentucky, 476 U.S. 79, 86 (1986) (holding that jury discrimination violates "[t]he very idea of a jury").
269. See Powers, 499 U.S. at 431 (Scalia, J., joined by Rehnquist, C.J., dissenting) ("Even if I agreed that the exercise of peremptory strikes constitutes unlawful discrimination . . . , I would not understand why the release of a convicted murderer who has not been harmed by those strikes is an appropriate remedy."); Duren v. Missouri, 439 U.S. 357, 373 n.* (1979) (Rehnquist, J., dissenting) ("The reversal of concededly fair convictions returned by concededly impartial juries is, to say the least, an irrational means of vindicating the equal protection rights of those unconstitutionally excluded from jury service.").
270. See J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1431-32 (1994) (O'Connor, J., concurring); see also Brown v. North Carolina, 479 U.S. 940, 940-42 (1986) (O'Connor, J., concurring in denial of certiorari).
271. Of course, if Batson's proponents were now to embrace the theory of difference, this would place them at odds with the overall direction in which the Court appears to be heading on the issue of racial difference. See Adarand Constructors, Inc, v. Pena, 115 S. Ct. 2097, 2119 (1995) (Scalia, J., concurring in part and concurring in judgment) ("In the eyes of government, we are just one race here. It is American."); Miller v. Johnson, 115 S. Ct. 2475, 2494 (1995); Shaw v. Reno, 113 S. Ct. 2816, 2827 (1993). See generally Jeffrey Rosen, The Color-Blind Court, NEW REPUBLIC, July 31, 1995, at 19 (explaining and critiquing several decisions of Supreme Court's 1994 Term that revealed emerging commitment to absolute colorblindness in constitutional adjudication).
272. See U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . . .").
273. The Court has used the Equal Protection Clause to guarantee some minimal fairness in post-trial proceedings - on appeals and collateral review. See, e.g., Douglas v. California, 372 U.S. 353, 357-58 (1963) (holding that indigent defendants have right to appointed counsel on first direct appeal taken as of right); Griffin v. Illinois, 351 U.S. 12, 18 (1956) (holding that indigent defendants have right to trial transcript at public expense where necessary on direct appeal). Even in these cases, she Court did not use the Equal Protection Clause to gauge the actual fairness of the substance of the appellate or collateral review. Rather, the Court simply used the Equal Protection Clause to insist on equal access to this sort of review, regardless of wealth.
274. Others have pointed to the Sixth Amendment as a possible constraint on the discriminatory exercise of peremptory challenges. See, e.g., Marder, supra note 79, at 1132-34 (proposing elimination of all peremptory challenges in order to vindicate Sixth Amendment's requirement of "impartial" jury); Toni M. Massaro, Peremptories or Peers? - Rethinking Sixth Amendment Doctrine, Images, and Procedures, 64 N.C. L. REV. 501, 541-63 (1986) (proposing elimination of prosecutor's peremptory challenges to produce jury that satisfies Sixth Amendment's impartiality, community representation, and peer representation requirements); Wendy Lynn Trugman, The Representative Jury Standard: An Alternative to Batson v. Kentucky, 23 AM. CRIM. L. REV. 403 (1986) (criticizing intent-based equal protection theory of Batson, and proposing effects-based theory based on Sixth Amendment's representative cross-section requirement).
275. Others have pointed to the Sixth Amendment as a possible constraint on the discriminatory exercise of peremptory challenges. See, e.g., Marder, supra note 79, at 1132-34 (proposing elimination of all peremptory challenges in order to vindicate Sixth Amendment's requirement of "impartial" jury); Toni M. Massaro, Peremptories or Peers? - Rethinking Sixth Amendment Doctrine, Images, and Procedures, 64 N.C. L. REV. 501, 541-63 (1986) (proposing elimination of prosecutor's peremptory challenges to produce jury that satisfies Sixth Amendment's impartiality, community representation, and peer representation requirements); Wendy Lynn Trugman, The Representative Jury Standard: An Alternative to Batson v. Kentucky, 23 AM. CRIM. L. REV. 403 (1986) (criticizing intent-based equal protection theory of Batson, and proposing effects-based theory based on Sixth Amendment's representative cross-section requirement).
276. Nancy King proposes a different solution in her comprehensive article. See supra note 79. Canvassing the social science literature on the decisionmaking effects of racial prejudice, King concludes that it is possible for reviewing courts actually to measure the effects of discrimination in at least some cases. She seems to argue that reversal should be confined to those cases where social science data strongly predict that discrimination played a role in the verdict. In a sense, King disputes the Court's instinct that Batson error is structural; she believes that it is like trial error, in that its precise impact on the verdict can be measured. See Arizona v. Fulminante, 499 U.S. 279, 310-11 (1991) (Rehnquist, C.J., for Court in part and dissenting in part) (explaining difference between trial and structural error). I have one major objection to King's solution, and the Court would surely have another. My hesitation is that the social science data do not actually permit the sort of fine-tuned measurement that King would expect of them. King concedes as much. In summarizing the measuring value of the data she has catalogued, she allows no more than this: [T]he studies would supporta finding of a high probability of prejudice from jury discrimination if a black defendant could establish that he was convicted and sentenced to death for killing a white police officer by an all-white jury that heard racial epithets during trial and deliberations, when the case turned on the defendant's claim of self-defense and evidence of guilt was close - primarily a swearing match between black defense witnesses and the officer's partner - and when legal selection procedures would probably have produced a jury with at least three blacks. Conversely, the studies suggest a low probability that a white defendant indicted for sexually abusing a black child would be prejudiced by discriminatory selection practices that reduced the number of blacks on the grand jury by one. King, supra note 79, at 100 n.138. But these cases are far too easy to be illuminating. We do not need to rely on social science for these results; our own common sense instincts do just fine. King's solution is therefore not really a solution, because the rule would not help courts decide hard cases. The Court would undoubtedly have an even more basic objection to King's solution. King hinges her entire claim that the effects of race prejudice are measurable on social science data. This is, of course, her only choice, as jury deliberations are secret, and testimony about those deliberations generally inadmissible. See FED. R. EVID. 606(b). But the Court has grown extremely hostile to the notion of building rules, especially equal protection rules, on social science data. See McCleskey v. Kemp, 481 U.S. 279 (1987) (refusing to rely on extensive empirical study of capital punishment in Georgia); see also Ballew v. Georgia, 435 U.S. 223, 246 (1978) (Powell, J., concurring in the judgment) (questioning Justice Blackmun's "heavy reliance on numerology derived from statistical studies" to establish that five-member juries violate Sixth Amendment); Craig v. Boren, 429 U.S. 190, 204 (1976) ("It is unrealistic to expect either members of the judiciary or state officials to be well versed in the rigors of experimental or statistical technique. But this merely illustrates that proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause."). King offers no reason why the Court would be more inclined to base a rule on social science data in this area than in any other.
277. 493 U.S. 474 (1990).
278. See id. at 484.
279. These are Chief Justice Rehnquist and Justices O'Connor and Scalia. See infra text accompanying notes 285-86.
280. This camp of Justices currently consists of Chief Justice Rehnquist and Justices Scalia and Thomas. Of this group, only Chief Justice Rehnquist was on the Court when Batson was decided. However, Justices Scalia and Thomas have repeatedly expressed the view that Batson was a mistake. See Georgia v. McCollum, 505 U.S. 42, 69-70 (1992) (Scalia, J., dissenting) (objecting to gradual destruction of defendants' rights to peremptory challenges); id. at 60 (Thomas, J., concurring in judgment) ("I write separately to express my general dissatisfaction with our continuing attempts to use the Constitution to regulate peremptory challenges."); Powers v. Ohio, 499 U.S. 400, 431 (1991) (Scalia, J., dissenting) ("Even if I agreed that the exercise of peremptory strikes constitutes unlawful discrimination (which I do not) . . . ."); see also J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1439 (1994) (Scalia, J., dissenting) (arguing against extension of Batson to sex). Chief Justice Rehnquist wrote the opinion in Fulminante that expanded harmless error doctrine to coerced confessions, and was joined by (among others) Justice Scalia. See Fulminante, 499 U.S. at 281. Justice Thomas was not on the Court at the time of Fulminante, and he has not yet had the opportunity to indicate that he shares the Court's focus on verdict reliability as the central value in the criminal process. As Justice Thomas seems to share Justice Scalia's and Chief Justice Rehnquist's voting patterns, particularly in criminal cases, it seems fair to assume that he shares this particular viewpoint as well. See Christopher E. Smith, The Constitution and Criminal Punishment: The Emerging Visions of Justices Scalia and Thomas, 43 DRAKE L. REV. 593 (1995); Richard G. Wilkins et al., Supreme Court Voting Behavior: 1994 Term, 22 HASTINGS CONST. L.Q. 269, 289 (1995) (noting comparable voting patterns among Rehnquist, Scalia, and Thomas in criminal cases); The Supreme Court, 1994 Term, 109 HARV. L. REV. 10, 341 (1995) (showing that in 1994 Term, Thomas voted with Scalia 88.2% of time and with Rehnquist 81.4% of time); The Supreme Court, 1993 Term, 108 HARV. L. REV. 26, 373 (showing that in 1993 Term, Thomas voted with Scalia 82.8% of time and with Rehnquist 67.8% of time); The Supreme Court, 1992 Term, 107 HARV. L. REV. 27, 373 (1993) (showing that in 1992 Term, Thomas voted with Scalia 86% of time and with Rehnquist 82.5% of time); The Supreme Court, 1991 Term, 106 HARV. L. REV. 19, 379 (1992) (showing that in 1991 Term, Thomas voted with Scalia 85.9% of time and with Rehnquist 80% of time).
281. This camp of Justices currently consists of Chief Justice Rehnquist and Justices Scalia and Thomas. Of this group, only Chief Justice Rehnquist was on the Court when Batson was decided. However, Justices Scalia and Thomas have repeatedly expressed the view that Batson was a mistake. See Georgia v. McCollum, 505 U.S. 42, 69-70 (1992) (Scalia, J., dissenting) (objecting to gradual destruction of defendants' rights to peremptory challenges); id. at 60 (Thomas, J., concurring in judgment) ("I write separately to express my general dissatisfaction with our continuing attempts to use the Constitution to regulate peremptory challenges."); Powers v. Ohio, 499 U.S. 400, 431 (1991) (Scalia, J., dissenting) ("Even if I agreed that the exercise of peremptory strikes constitutes unlawful discrimination (which I do not) . . . ."); see also J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1439 (1994) (Scalia, J., dissenting) (arguing against extension of Batson to sex). Chief Justice Rehnquist wrote the opinion in Fulminante that expanded harmless error doctrine to coerced confessions, and was joined by (among others) Justice Scalia. See Fulminante, 499 U.S. at 281. Justice Thomas was not on the Court at the time of Fulminante, and he has not yet had the opportunity to indicate that he shares the Court's focus on verdict reliability as the central value in the criminal process. As Justice Thomas seems to share Justice Scalia's and Chief Justice Rehnquist's voting patterns, particularly in criminal cases, it seems fair to assume that he shares this particular viewpoint as well. See Christopher E. Smith, The Constitution and Criminal Punishment: The Emerging Visions of Justices Scalia and Thomas, 43 DRAKE L. REV. 593 (1995); Richard G. Wilkins et al., Supreme Court Voting Behavior: 1994 Term, 22 HASTINGS CONST. L.Q. 269, 289 (1995) (noting comparable voting patterns among Rehnquist, Scalia, and Thomas in criminal cases); The Supreme Court, 1994 Term, 109 HARV. L. REV. 10, 341 (1995) (showing that in 1994 Term, Thomas voted with Scalia 88.2% of time and with Rehnquist 81.4% of time); The Supreme Court, 1993 Term, 108 HARV. L. REV. 26, 373 (showing that in 1993 Term, Thomas voted with Scalia 82.8% of time and with Rehnquist 67.8% of time); The Supreme Court, 1992 Term, 107 HARV. L. REV. 27, 373 (1993) (showing that in 1992 Term, Thomas voted with Scalia 86% of time and with Rehnquist 82.5% of time); The Supreme Court, 1991 Term, 106 HARV. L. REV. 19, 379 (1992) (showing that in 1991 Term, Thomas voted with Scalia 85.9% of time and with Rehnquist 80% of time).
282. This camp of Justices currently consists of Chief Justice Rehnquist and Justices Scalia and Thomas. Of this group, only Chief Justice Rehnquist was on the Court when Batson was decided. However, Justices Scalia and Thomas have repeatedly expressed the view that Batson was a mistake. See Georgia v. McCollum, 505 U.S. 42, 69-70 (1992) (Scalia, J., dissenting) (objecting to gradual destruction of defendants' rights to peremptory challenges); id. at 60 (Thomas, J., concurring in judgment) ("I write separately to express my general dissatisfaction with our continuing attempts to use the Constitution to regulate peremptory challenges."); Powers v. Ohio, 499 U.S. 400, 431 (1991) (Scalia, J., dissenting) ("Even if I agreed that the exercise of peremptory strikes constitutes unlawful discrimination (which I do not) . . . ."); see also J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1439 (1994) (Scalia, J., dissenting) (arguing against extension of Batson to sex). Chief Justice Rehnquist wrote the opinion in Fulminante that expanded harmless error doctrine to coerced confessions, and was joined by (among others) Justice Scalia. See Fulminante, 499 U.S. at 281. Justice Thomas was not on the Court at the time of Fulminante, and he has not yet had the opportunity to indicate that he shares the Court's focus on verdict reliability as the central value in the criminal process. As Justice Thomas seems to share Justice Scalia's and Chief Justice Rehnquist's voting patterns, particularly in criminal cases, it seems fair to assume that he shares this particular viewpoint as well. See Christopher E. Smith, The Constitution and Criminal Punishment: The Emerging Visions of Justices Scalia and Thomas, 43 DRAKE L. REV. 593 (1995); Richard G. Wilkins et al., Supreme Court Voting Behavior: 1994 Term, 22 HASTINGS CONST. L.Q. 269, 289 (1995) (noting comparable voting patterns among Rehnquist, Scalia, and Thomas in criminal cases); The Supreme Court, 1994 Term, 109 HARV. L. REV. 10, 341 (1995) (showing that in 1994 Term, Thomas voted with Scalia 88.2% of time and with Rehnquist 81.4% of time); The Supreme Court, 1993 Term, 108 HARV. L. REV. 26, 373 (showing that in 1993 Term, Thomas voted with Scalia 82.8% of time and with Rehnquist 67.8% of time); The Supreme Court, 1992 Term, 107 HARV. L. REV. 27, 373 (1993) (showing that in 1992 Term, Thomas voted with Scalia 86% of time and with Rehnquist 82.5% of time); The Supreme Court, 1991 Term, 106 HARV. L. REV. 19, 379 (1992) (showing that in 1991 Term, Thomas voted with Scalia 85.9% of time and with Rehnquist 80% of time).
283. This camp of Justices currently consists of Chief Justice Rehnquist and Justices Scalia and Thomas. Of this group, only Chief Justice Rehnquist was on the Court when Batson was decided. However, Justices Scalia and Thomas have repeatedly expressed the view that Batson was a mistake. See Georgia v. McCollum, 505 U.S. 42, 69-70 (1992) (Scalia, J., dissenting) (objecting to gradual destruction of defendants' rights to peremptory challenges); id. at 60 (Thomas, J., concurring in judgment) ("I write separately to express my general dissatisfaction with our continuing attempts to use the Constitution to regulate peremptory challenges."); Powers v. Ohio, 499 U.S. 400, 431 (1991) (Scalia, J., dissenting) ("Even if I agreed that the exercise of peremptory strikes constitutes unlawful discrimination (which I do not) . . . ."); see also J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1439 (1994) (Scalia, J., dissenting) (arguing against extension of Batson to sex). Chief Justice Rehnquist wrote the opinion in Fulminante that expanded harmless error doctrine to coerced confessions, and was joined by (among others) Justice Scalia. See Fulminante, 499 U.S. at 281. Justice Thomas was not on the Court at the time of Fulminante, and he has not yet had the opportunity to indicate that he shares the Court's focus on verdict reliability as the central value in the criminal process. As Justice Thomas seems to share Justice Scalia's and Chief Justice Rehnquist's voting patterns, particularly in criminal cases, it seems fair to assume that he shares this particular viewpoint as well. See Christopher E. Smith, The Constitution and Criminal Punishment: The Emerging Visions of Justices Scalia and Thomas, 43 DRAKE L. REV. 593 (1995); Richard G. Wilkins et al., Supreme Court Voting Behavior: 1994 Term, 22 HASTINGS CONST. L.Q. 269, 289 (1995) (noting comparable voting patterns among Rehnquist, Scalia, and Thomas in criminal cases); The Supreme Court, 1994 Term, 109 HARV. L. REV. 10, 341 (1995) (showing that in 1994 Term, Thomas voted with Scalia 88.2% of time and with Rehnquist 81.4% of time); The Supreme Court, 1993 Term, 108 HARV. L. REV. 26, 373 (showing that in 1993 Term, Thomas voted with Scalia 82.8% of time and with Rehnquist 67.8% of time); The Supreme Court, 1992 Term, 107 HARV. L. REV. 27, 373 (1993) (showing that in 1992 Term, Thomas voted with Scalia 86% of time and with Rehnquist 82.5% of time); The Supreme Court, 1991 Term, 106 HARV. L. REV. 19, 379 (1992) (showing that in 1991 Term, Thomas voted with Scalia 85.9% of time and with Rehnquist 80% of time).
284. This camp of Justices currently consists of Chief Justice Rehnquist and Justices Scalia and Thomas. Of this group, only Chief Justice Rehnquist was on the Court when Batson was decided. However, Justices Scalia and Thomas have repeatedly expressed the view that Batson was a mistake. See Georgia v. McCollum, 505 U.S. 42, 69-70 (1992) (Scalia, J., dissenting) (objecting to gradual destruction of defendants' rights to peremptory challenges); id. at 60 (Thomas, J., concurring in judgment) ("I write separately to express my general dissatisfaction with our continuing attempts to use the Constitution to regulate peremptory challenges."); Powers v. Ohio, 499 U.S. 400, 431 (1991) (Scalia, J., dissenting) ("Even if I agreed that the exercise of peremptory strikes constitutes unlawful discrimination (which I do not) . . . ."); see also J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1439 (1994) (Scalia, J., dissenting) (arguing against extension of Batson to sex). Chief Justice Rehnquist wrote the opinion in Fulminante that expanded harmless error doctrine to coerced confessions, and was joined by (among others) Justice Scalia. See Fulminante, 499 U.S. at 281. Justice Thomas was not on the Court at the time of Fulminante, and he has not yet had the opportunity to indicate that he shares the Court's focus on verdict reliability as the central value in the criminal process. As Justice Thomas seems to share Justice Scalia's and Chief Justice
285. This camp of Justices currently consists of Chief Justice Rehnquist and Justices Scalia and Thomas. Of this group, only Chief Justice Rehnquist was on the Court when Batson was decided. However, Justices Scalia and Thomas have repeatedly expressed the view that Batson was a mistake. See Georgia v. McCollum, 505 U.S. 42, 69-70 (1992) (Scalia, J., dissenting) (objecting to gradual destruction of defendants' rights to peremptory challenges); id. at 60 (Thomas, J., concurring in judgment) ("I write separately to express my general dissatisfaction with our continuing attempts to use the Constitution to regulate peremptory challenges."); Powers v. Ohio, 499 U.S. 400, 431 (1991) (Scalia, J., dissenting) ("Even if I agreed that the exercise of peremptory strikes constitutes unlawful discrimination (which I do not) . . . ."); see also J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1439 (1994) (Scalia, J., dissenting) (arguing against extension of Batson to sex). Chief Justice Rehnquist wrote the opinion in Fulminante that expanded harmless error doctrine to coerced confessions, and was joined by (among others) Justice Scalia. See Fulminante, 499 U.S. at 281. Justice Thomas was not on the Court at the time of Fulminante, and he has not yet had the opportunity to indicate that he shares the Court's focus on verdict reliability as the central value in the criminal process. As Justice Thomas seems to share Justice Scalia's and Chief Justice Rehnquist's voting patterns, particularly in criminal cases, it seems fair to assume that he shares this particular viewpoint as well. See Christopher E. Smith, The Constitution and Criminal Punishment: The Emerging Visions of Justices Scalia and Thomas, 43 DRAKE L. REV. 593 (1995); Richard G. Wilkins et al., Supreme Court Voting Behavior: 1994 Term, 22 HASTINGS CONST. L.Q. 269, 289 (1995) (noting comparable voting patterns among Rehnquist, Scalia, and Thomas in criminal cases); The Supreme Court, 1994 Term, 109 HARV. L. REV. 10, 341 (1995) (showing that in 1994 Term, Thomas voted with Scalia 88.2% of time and with Rehnquist 81.4% of time); The Supreme Court, 1993 Term, 108 HARV. L. REV. 26, 373 (showing that in 1993 Term, Thomas voted with Scalia 82.8% of time and with Rehnquist 67.8% of time); The Supreme Court, 1992 Term, 107 HARV. L. REV. 27, 373 (1993) (showing that in 1992 Term, Thomas voted with Scalia 86% of time and with Rehnquist 82.5% of time); The Supreme Court, 1991 Term, 106 HARV. L. REV. 19, 379 (1992) (showing that in 1991 Term, Thomas voted with Scalia 85.9% of time and with Rehnquist 80% of time).
286. There is nearly a one-to-one correspondence between majority votes in Batson and dissenting votes in Fulminante. The Batson majority included Justices White, Marshall, Blackmun, and Stevens (in addition to Justices Brennan and Powell); these four were the four dissenters in Fulminante on the question of whether harmless error analysis should apply to coerced confessions. Notably, their position in Fulminante was not just that coerced confessions impugn the reliability of verdicts, but also that coerced confessions should trigger automatic reversal because they offend other important values. See Fulminante, 499 U.S. at 293 (White, J., for Court in part and dissenting in part).
287. By two "lawfully constituted juries," I mean two juries from which all jurors subject to challenge for cause have been removed.
288. Reviewing social science research, Mark Cammack recently concluded that "two conscientious jurors exposed to the same evidence may develop reconstructions of the facts and implications of those facts that are 'surprisingly dissimilar.'" Cammack, supra note 29, at 476 (quoting William C. Thompson et al., Death Penalty Attitudes & Conviction Proneness, 8 LAW & HUM. BEHAV. 95, 110-11 (1984)). As Cammack noted, this does not necessarily translate into different verdicts: "[D]iversifying the jury's standards for describing the social world may enrich the factfinding process generally without systematically orienting it toward conviction or acquittal." Id. at 479. Still, Cammack agreed that "there is a demonstrated correlation between race and decision in at least some cases." Id. (citing Johnson, supra note 79, at 1625-43; King, supra note 79, at 80-91); see also Brown, supra note 27, at 117 (noting that race and gender influence jury voting). But see Jeffrey E. Pfeifer, Comment, Reviewing the Empirical Evidence on Jury Racism: Findings of Discrimination or Discriminatory Findings?, 69 NEB. L. REV. 230, 241-50 (1990) (questioning validity of social science research in this area).
289. Reviewing social science research, Mark Cammack recently concluded that "two conscientious jurors exposed to the same evidence may develop reconstructions of the facts and implications of those facts that are 'surprisingly dissimilar.'" Cammack, supra note 29, at 476 (quoting William C. Thompson et al., Death Penalty Attitudes & Conviction Proneness, 8 LAW & HUM. BEHAV. 95, 110-11 (1984)). As Cammack noted, this does not necessarily translate into different verdicts: "[D]iversifying the jury's standards for describing the social world may enrich the factfinding process generally without systematically orienting it toward conviction or acquittal." Id. at 479. Still, Cammack agreed that "there is a demonstrated correlation between race and decision in at least some cases." Id. (citing Johnson, supra note 79, at 1625-43; King, supra note 79, at 80-91); see also Brown, supra note 27, at 117 (noting that race and gender influence jury voting). But see Jeffrey E. Pfeifer, Comment, Reviewing the Empirical Evidence on Jury Racism: Findings of Discrimination or Discriminatory Findings?, 69 NEB. L. REV. 230, 241-50 (1990) (questioning validity of social science research in this area).
290. It is no response to say, as Batson's opponents do, that the value of the unfettered peremptory is that it allows the parties to work against precisely this outcome by cleansing the jury of bias and thereby enhancing impartiality. Not only is such a goal unattainable in practice, as the law nowhere allocates to a party an unlimited number of peremptory challenges, but it is also undesirable in theory. The Sixth Amendment does not command singleminded pursuit of an impartial jury; it requires a balance of, or compromise between, the sometimes conflicting norms of impartiality and community representation. See infra text accompanying notes 302-05.
291. See generally Colloquy, Racism in the Wake of the Los Angeles Riots, 70 DENV. U. L. REV. 187 (1993) (addressing systematic nature of racism in wake of Los Angeles unrest); Symposium, Los Angeles, April 29, 1992 and Beyond: The Law, Issues, and Perspectives, 66 S. CAL. L. REV. 1313 (1993) (addressing legal, political, and cultural circumstances that precipitated unrest in Los Angeles following first Rodney King verdict).
292. See generally Colloquy, Racism in the Wake of the Los Angeles Riots, 70 DENV. U. L. REV. 187 (1993) (addressing systematic nature of racism in wake of Los Angeles unrest); Symposium, Los Angeles, April 29, 1992 and Beyond: The Law, Issues, and Perspectives, 66 S. CAL. L. REV. 1313 (1993) (addressing legal, political, and cultural circumstances that precipitated unrest in Los Angeles following first Rodney King verdict).
293. Here Batson's opponents reject the empiricism of Balson's, proponents and reveal strong contextualist leanings. See supra notes 66-75 and accompanying text.
294. The view does not strike me as particularly radical in the abstract. Admittedly, it would be radical if juries were required to reply to special interrogatories on discrete factual questions in criminal cases, rather than to announce a general verdict on the overall question of guilt or innocence. If this were our system's practice, jury verdicts would look a lot more like the findings of historical fact that the Court seems to imagine in its harmless error cases. But as a rule, juries in this country issue general verdicts on the question of guilt or innocence. This is a more ambiguous determination - one which does not fit as comfortably into a model of historical fact. For a discussion of the prevailing preference for general verdicts in criminal cases, see Albert W. Alschuler & Andrew G. Deiss, A Brief History of Criminal Jury in the United States, 61 U. CHI. L. REV. 867, 912-13 (1994); Scott W. Howe, Jury Fact-Finding in Criminal Cases: Constitutional Limits on Factual Disagreements Among Convicting Jurors, 58 MO. L. REV. 1, 49 n.179 (1993); Anne Bowen Poulin, The Jury: The Criminal Justice System's Different Voice, 62 U. CIN. L. REV. 1377, 1398, 1420-23 (1994); Eric S. Miller, Note, Compound-Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts, 104 YALE L.J. 2277, 2304 (1995).
295. The view does not strike me as particularly radical in the abstract. Admittedly, it would be radical if juries were required to reply to special interrogatories on discrete factual questions in criminal cases, rather than to announce a general verdict on the overall question of guilt or innocence. If this were our system's practice, jury verdicts would look a lot more like the findings of historical fact that the Court seems to imagine in its harmless error cases. But as a rule, juries in this country issue general verdicts on the question of guilt or innocence. This is a more ambiguous determination - one which does not fit as comfortably into a model of historical fact. For a discussion of the prevailing preference for general verdicts in criminal cases, see Albert W. Alschuler & Andrew G. Deiss, A Brief History of Criminal Jury in the United States, 61 U. CHI. L. REV. 867, 912-13 (1994); Scott W. Howe, Jury Fact-Finding in Criminal Cases: Constitutional Limits on Factual Disagreements Among Convicting Jurors, 58 MO. L. REV. 1, 49 n.179 (1993); Anne Bowen Poulin, The Jury: The Criminal Justice System's Different Voice, 62 U. CIN. L. REV. 1377, 1398, 1420-23 (1994); Eric S. Miller, Note, Compound-Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts, 104 YALE L.J. 2277, 2304 (1995).
296. The view does not strike me as particularly radical in the abstract. Admittedly, it would be radical if juries were required to reply to special interrogatories on discrete factual questions in criminal cases, rather than to announce a general verdict on the overall question of guilt or innocence. If this were our system's practice, jury verdicts would look a lot more like the findings of historical fact that the Court seems to imagine in its harmless error cases. But as a rule, juries in this country issue general verdicts on the question of guilt or innocence. This is a more ambiguous determination - one which does not fit as comfortably into a model of historical fact. For a discussion of the prevailing preference for general verdicts in criminal cases, see Albert W. Alschuler & Andrew G. Deiss, A Brief History of Criminal Jury in the United States, 61 U. CHI. L. REV. 867, 912-13 (1994); Scott W. Howe, Jury Fact-Finding in Criminal Cases: Constitutional Limits on Factual Disagreements Among Convicting Jurors, 58 MO. L. REV. 1, 49 n.179 (1993); Anne Bowen Poulin, The Jury: The Criminal Justice System's Different Voice, 62 U. CIN. L. REV. 1377, 1398, 1420-23 (1994); Eric S. Miller, Note, Compound-Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts, 104 YALE L.J. 2277, 2304 (1995).
297. The view does not strike me as particularly radical in the abstract. Admittedly, it would be radical if juries were required to reply to special interrogatories on discrete factual questions in criminal cases, rather than to announce a general verdict on the overall question of guilt or innocence. If this were our system's practice, jury verdicts would look a lot more like the findings of historical fact that the Court seems to imagine in its harmless error cases. But as a rule, juries in this country issue general verdicts on the question of guilt or innocence. This is a more ambiguous determination - one which does not fit as comfortably into a model of historical fact. For a discussion of the prevailing preference for general verdicts in criminal cases, see Albert W. Alschuler & Andrew G. Deiss, A Brief History of Criminal Jury in the United States, 61 U. CHI. L. REV. 867, 912-13 (1994); Scott W. Howe, Jury Fact-Finding in Criminal Cases: Constitutional Limits on Factual Disagreements Among Convicting Jurors, 58 MO. L. REV. 1, 49 n.179 (1993); Anne Bowen Poulin, The Jury: The Criminal Justice System's Different Voice, 62 U. CIN. L. REV. 1377, 1398, 1420-23 (1994); Eric S. Miller, Note, Compound-Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts, 104 YALE L.J. 2277, 2304 (1995).
298. Stated a bit differently, it cannot simultaneously be true that a jury's sole function is reliably to uncover a preexisting empirical fact, and that the racially or sexually influenced perspectives that jurors bring to the jury room actually have an impact on the verdict. Yet this is exactly what the opinions of the Batson opponents say, when read together with their opinions in the harmless error cases.
299. For a similar view in the far broader context of epistemology (rather than the narrow context of harmless error review), see Cammack, supra note 29, at 420.
300. Again, Mark Cammack has made a similar point in the broader context of theories of knowledge. See id. at 421.
301. See infra text accompanying notes 302-05.
302. See supra note 85.
303. See infra text accompanying notes 302-05; see also Marder, supra note 79, at 1066-74.
304. Williams v. Florida, 399 U.S. 78, 100 (1970).
305. Ballew v. Georgia, 435 U.S. 223, 239 (1978) (Blackmun, J.). There is some confusion as to whether Justice Blackmun's opinion in Ballew is for the Court, or whether only Justice Stevens joined it. While not a foolproof summary of the opinion, the Syllabus prepared by the Reporter's Office suggests that only Justice Stevens joined Justice Blackmun's opinion. See id. at 223. This is technically true: Only Justice Stevens agreed with Justice Blackmun's views both that the five-person jury violated the Sixth and Fourteenth Amendments and that the appropriate remedy was a new trial. Yet in a separate one-paragraph opinion, joined by Justices Stewart add Marshall, Justice Brennan stated that he "join[ed] Mr. Justice Blackmun's opinion insofar as it holds that the Sixth and Fourteenth Amendments require juries in criminal trials to contain more than five persons." Id. at 246 (Brennan, J.) (emphasis added). This group of three Justices did not think a new trial was the appropriate remedy for unrelated reasons, but quite clearly did join Justice Blackmun's opinion - not just the judgment - on the Sixth Amendment issue. Contrary to the suggestion in the syllabus of the decision, it seems that Justice Blackmun's Sixth Amendment analysis did attract five votes. In addition, Justice White explicitly agreed that a five-person jury violated the Sixth Amendment because "a jury of fewer than six persons would fail to represent the sense of the community . . . ." Id. at 245 (White, J., concurring in judgment).
306. See, e.g., Apodaca v. Oregon, 406 U.S. 404 (1972) (plurality opinion). The Court also upheld a verdict reached by nine out of twelve jurors against a due process and equal protection challenge in Johnson v. Louisiana, 406 U.S. 356, 362-65 (1972).
307. See Apodaca, 406 U.S. at 410-11.
308. See Burch v. Louisiana, 441 U.S. 130, 134-39 (1979). The Court in Burch was very clear that the five-sixths voting rule was unconstitutional under the Sixth and Fourteenth Amendments because it "sufficiently threaten[ed] the constitutional principles that led to the establishment of the size threshold" of six that the Court had established in Ballew. Id. at 139. Those principles, of course, included the principle that a jury must represent the community. See supra note 268 and accompanying text.
309. 493 U.S. 474 (1990).
310. See id. at 477-78. The defendant, a white man objecting to the exclusion of black jurors, also had to argue that he had standing to raise the Sixth Amendment claim. The Court agreed that he did. See id. at 476-77.
311. See id. at 478.
312. See id. at 477-88. Joining Justice Scalia in the Holland majority were Chief Justice Rehnquist and Justices White, O'Connor, and Kennedy. Justices Brennan, Marshall, Blackmun, and Stevens dissented. All of the Holland dissenters were in the Batson majority, as were Justices White and O'Connor. See Batson v. Kentucky, 476 U.S. 79, 81 (1986).
313. See Holland, 493 U.S. at 482-83 (citing Lockhart v. McCree, 476 U.S. 162, 173-75 (1986)).
314. See id. at 483. The legitimate state interest that the Court saw in Holland for skewing the representative nature of the jury was "the assurance of impartiality that the system of peremptory challenges has traditionally provided." Id. But see infra text accompanying notes 302-05.
315. Holland, 493 U.S. at 483 (quoting Taylor v. Louisiana, 419 U.S. 522, 538 (1975)).
316. Id. (quoting Lockhart v. McCree, 476 U.S. 162, 173 (1986)).
317. See id. at 484-86; see also id. at 488 (Kennedy, J., concurring) (arguing defendant's contention "admits of no limiting principle to make it workable in practice").
318. Id. at 484.
319. See J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1439 (1994) (Scalia, J., dissenting) (describing peremptory challenge as "a practice that has been considered an essential part of fair jury trial since the dawn of the common law").
320. See supra notes 267-71.
321. In his opinion for the Court in Holland, Justice Scalia seemed at times to pretend that the jury size and jury unanimity cases never happened. For example, Justice Scalia asserted that "[t]he Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does)." Holland v. Illinois, 493 U.S. 474, 480 (1990). If the Sixth Amendment does not assure a representative jury, then what could possibly support the Court's holdings in Williams, Ballew, Apodaca, and Burch? What would stand in the way of a jury of five? Or less than five? Or a verdict by simple majority of a three-person jury? At other times, Justice Scalia acknowledged that these precedents were on the books, but read them as isolated decisions devoid of any meaning beyond their facts. "While statements in our prior cases have alluded to . . . a 'fair possibility' requirement," he wrote, "satisfying it has not been held to require anything beyond the inclusion of all cognizable groups in the venire, see Lockhart v. McCree, 476 U.S. 162 (1986); Duren [v. Missouri, 439 U.S. 357 (1979)]; Taylor [v. Louisiana, 419 U.S. 522 (1975)], and the use of a jury numbering at least six persons, see Ballew v. Georgia, 435 U.S. 223 (1978); Williams v. Florida, 399 U.S. 78 (1970)." Holland, 493 U.S. at 478. This is not reasoning; this is list making. What Justice Scalia omitted, besides the jury unanimity cases, was the reason that the Sixth Amendment condemns five-person juries or nonunanimous verdicts from six-person juries, the underlying idea that links Lockhart, Duren, and Taylor with Ballew and Williams (and, for that matter, Apodaca and Burch as well). That underlying constitutional idea is the Sixth Amendment's insistence that a jury represent the community from which it is drawn.
322. See supra notes 66-75 and accompanying text.
323. J.E.B., 114 S. Ct. at 1432 (O'Connor, J., concurring).
324. See supra Section VI.A.
325. Akhil Reed Amar has argued powerfully that the criminal jury was designed as a representative democratic body - in his words, "a political institution embodying popular sovereignty and republican self-government." Amar, supra note 85, at 684. Juries, according to Amar, are "supposed to represent the polity - the people," even if such representation might "trump a given defendant's desires." Id. at 685. Amar praises the Court for adopting and extending the Batson norm; he sees the Batson line of cases as implementing the Constitution's commitment to a representative jury. See id. at 685. I agree with Amar that the results of the Batson line of cases help achieve a more representative jury. Yet I am puzzled by Amar's assertion that the Court here "has been on just the right track." Id. If the notion that a criminal jury must represent the community is, as the title of his article implies, a "Sixth Amendment first principle," then the Court ought not be praised for sneaking a Sixth Amendment first principle into the Equal Protection Clause of the Fourteenth Amendment. It should instead be criticized for failing, as it did in Holland, to enforce a Sixth Amendment first principle under the Sixth Amendment.
326. See Lockhart v. McCree, 476 U.S. 162, 173-74 (1986); Duren v. Missouri, 439 U.S. 357, 364 n.20 (1979); Taylor v. Louisiana, 419 U.S. 522, 538 (1975).
327. See Holland v. Illinois, 493 U.S. 474, 484-85 (1990).
328. Other models for the claimed Sixth Amendment right were readily available to the Holland majority, especially two well-known state decisions that interpreted state constitutional jury trial guarantees in much the way Holland proposed for the Sixth Amendment. See People v. Wheeler, 583 P.2d 748 (Cal. 1978); Commonwealth v. Soares, 387 N.E.2d 499 (Mass. 1979). For a thorough discussion of these cases, see William T. Pizzi, Batson v. Kentucky: Curing the Disease But Killing the Patient, 1987 SUP. CT. REV. 97, 103-06.
329. Holland's attorney's strategic decision to litigate under the Sixth Amendment rather than the Equal Protection Clause might seem odd: If Batson already provided the necessary rule, why look for one in the Sixth Amendment as well? The simple answer is that the defendant in Holland was white, and the Supreme Court had not yet decided Powers, which permitted defendants not of the same race as excluded jurors to avail themselves of the Batson rule. See Powers v. Ohio, 499 U.S. 400, 404 (1991). Holland's attorney most likely thought that he had a better chance of establishing standing under the Sixth Amendment than under the Equal Protection Clause. See The Supreme Court, 1989 Term - Leading Cases, 104 HARV. L. REV. 129, 169 n.10 (1990). As things turned out, this was a bad strategy. Shortly after Holland lost his Sixth Amendment argument, another white defendant persuaded the Court to adopt the equal protection analysis that Holland's attorney had avoided. See Powers, 499 U.S. at 404 (1991). But it was an enormously telling strategy, revealing the gaping fair trial hole at the center of Batson. Holland's attorney faced a problem of standing: How could a white defendant have standing to lodge a Batson objection to the exclusion of black jurors? The law of standing would require Holland to show that he had suffered a "concrete injury" from the exclusion of black jurors. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 567 n.3 (1992). Holland's attorney undoubtedly read Batson and saw no way to articulate any real equal-protection-based harm that a white defendant could possibly suffer from the exclusion of black jurors. This was certainly not an unreasonable reading of Batson. See supra Part IV. The Sixth Amendment, with its insistence on community representation, undoubtedly seemed a far safer choice. It was - at least on the issue of standing. The Holland Court had little trouble in concluding that a white defendant had standing to contest the exclusion of black jurors under the Sixth Amendment. See Holland, 493 U.S. at 474. Holland's lawyer's sensible choice to litigate under the Sixth Amendment says much about the curious lack of a fair trial injury at the core of Batson.
330. See supra notes 267-68 and accompanying text.
331. On direct appeal, a claim of Batson error can reach an appellate court in two main ways. Commonly, a defendant claims that the trial court wrongly determined that the prosecutor did not violate Batson in challenging a juror. Here, the defendant is asking the appellate court to conclude that the prosecutor removed a juror on account of race or gender and in fact had no race-or gender-neutral grounds to doubt the juror's impartiality. Less commonly, a defendant argues that the trial court wrongly found that defense counsel violated Batson in challenging a juror. Here, the defendant is asking the appellate court to conclude that defense counsel did in fact have race-or gender-neutral grounds to doubt the juror's impartiality, but that the trial court wrongly saw the peremptory as race-or gender-based. Only in the first of these two scenarios should the court find a structural Sixth Amendment error of the kind that I have described in this Article. This might seem odd at first. Both of these situations arguably present claims of Batson error, yet I am suggesting that only the former presents a Sixth Amendment structural error warranting automatic reversal. This is so because the latter claim is really not a claim of Batson error at all; it is simply a claim that the trial court wrongly stripped the defense of a statutorily conferred peremptory challenge. A recent Ninth Circuit case shows why this is true. United States v. Annigoni, 57 F.3d 739 (9th Cir. 1995), concerned a bank fraud prosecution involving a real estate partnership. On voir dire, an Asian prospective juror named Jue Hom admitted that he had an investment in a real estate partnership and suggested that he knew of litigation over the investment. See id. at 741. Defense counsel exercised a peremptory challenge against Hom. See id. In response to the prosecutor's Batson objection, defense counsel explained that he was challenging Hom because of his investment background, not his race. See id. at 742. The district court found that defense counsel's peremptory was race-based and left Hom on the jury. See id. The jury convicted Annigoni. See id. at 741. To prevail on appeal, the defendant needed to convince the appellate court that defense counsel had not violated Batson by challenging Hom but in fact had a convincing race-neutral explanation for doubting his impartiality and wanting him off the jury. The injury that the defendant claimed he suffered was not harm to the representativeness of the jury, but harm to the impartiality of the jury: A while-collar case about real estate partnerships ended up being judged by a jury that included a possibly defrauded investor in real estate partnerships. At bottom, this was simply a claim that the district court mistakenly disallowed the defendant a peremptory challenge that he should have had as a matter of statutory right. See 28 U.S.C. § 1870 (1994). The question on an appeal such as this is not how to remedy a Batson violation, because to reach the question of remedy, the appellate court must first find that there was no Batson violation and consequently no harm to the Sixth Amendment value of community representation. The question on this appeal is rather how the court should remedy the improper denial of a party's statutory right to a peremptory challenge. The Annigoni court held that automatic reversal was not the appropriate remedy and affirmed the conviction. Annigoni, 57 F.3d at 745. The Third and Fifth Circuits have reached the opposite conclusion, opting for a rule of per se reversal. See Kirk v. Raymark Indus., 61 F.3d 147, 162 (3d Cir. 1995); United States v. Broussard, 987 F.2d 215, 217 (5th Cir. 1993). While this question is beyond the scope of this Article, the Annigoni court's approach appears far more consistent with the Supreme Court's clear hostility to rules of automatic reversal for errors that do not plainly undermine the reliability of the jury's verdict. See supra Part III.
332. Indeed, this distinction between affirmative and negative rules of representation is one that the Court has drawn in its jury discrimination cases. See, e.g., Carter v. Jury Comm'n, 396 U.S. 320, 343 (1970) (Douglas, J., dissenting in part) ("We have often said that no jury need represent proportionally a cross-section of the community . . . . Jury selection is largely by chance; and no matter what the race of the defendant, he bears the risk that no racial component, presumably favorable to him, will appear on the jury that tries him. The law only requires that the panel not be purposely unrepresentative."); Thiel v. Southern Pac. Co., 328 U.S. 217, 220 (1946) ("[American tradition of trial by jury] does not mean . . . that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community . . . . But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.").
333. See Raymond J. Broderick, Why the Peremptory Challenge Should Be Abolished, 65 TEMP. L. REV. 369, 408-10 (1992) (criticizing Holland for tolerating systematic exclusion of identifiable community groups through peremptory challenges).
334. Holland v. Illinois, 493 U.S. 474, 486 (1990).
335. See supra note 247.
336. Holland, 493 U.S. at 486.
337. See supra Section VI.A.
338. On the educative and political functions of juries and jury service, see Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1186-89 (1991); Amar, supra note 206; Amar, supra note 47, at 217-21; Marder, supra note 79, at 1083-86, 1098-99; Underwood, supra note 43, at 749-50.
339. Holland, 493 U.S. at 480.
340. See supra note 284.
341. See Cammack, supra note 29, at 480-81 ("[I]t cannot be denied that race, gender, and ethnicity are highly salient categories of social understanding in our society and have been for a very long time.").
342. See Taylor v. Louisiana, 419 U.S. 522, 530 (1975) ("Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial." (emphasis added)). Of course, the jury serves more than one value. Not only must it represent (or, more precisely, not designedly misrepresent) the community, but it must also be "impartial." U.S. CONST. amend. VI. It is not difficult to see how the two values of community representation and impartiality might sometimes conflict with one another. For example, some segment of the community undoubtedly deems the death penalty so unjust that its members would refuse even to consider voting to impose it in any case, regardless of the facts. See Witherspoon v. Illinois, 391 U.S. 510, 513 (1968). This segment of the community has come to be known as "Witherspoon excludables" in the case law. See Lockhart v. McCree, 476 U.S. 162, 167 n.1 (1986). To say that the Sixth Amendment forbids the purposeful underrepresentation of Witherspoon excludables is to say that the Sixth Amendment requires the seating of "partial" jurors - jurors who cannot "lay aside [their] impression[s] or opinion[s] and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 723 (1961); see McCree, 476 U.S. at 174 (rejecting claim that Witherspoon excludables are distinctive group within community for Sixth Amendment purposes). Where these two values conflict, the Sixth Amendment should be read to require as reasonable an accommodation of them as possible. See Massaro, supra note 248, at 541-42 (arguing that jury that satisfies Sixth Amendment is one that meets requirements of impartiality, community representation, and peer-group representation). It should not be read to require community representation at all costs. If, for example, a black juror stated on voir dire that he would be unable to set aside his belief that all police officers are evidence-fabricating liars utterly unworthy of belief, that juror would properly be excludable for cause, even if his views accurately reflected those of some segment of the black community. On the other hand, if an attorney challenged a black juror on the suspicion that that juror had had certain life experiences that would cause him to doubt the veracity or integrity of police officers in some instances, the Sixth Amendment's concern for community representation would trump its concern for impartiality, and the juror would sit. See McCree, 476 U.S. at 176 (noting that jurors who "firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law").
343. See Batson v. Kentucky, 476 U.S. 79, 124 (1986) (Burger, C.J., dissenting); Elaine A. Carlson, Batson, J.E.B., and Beyond: The Paradoxical Quest for Reasoned Peremptory Strikes in the Jury Selection Process, 46 BAYLOR L. REV. 947, 970-75 (1994) (analyzing propriety under Batson of religion-based peremptory challenges and of voir dire questions designed to probe prospective juror's religious beliefs); Brian E. Leach, Comment, Extending Batson v. Kentucky to Gender and Beyond: The Death Knell for the Peremptory Challenge?, 19 S. ILL. U. L. REV. 381, 398 (1995) (summarizing case law addressing possible extension of Batson to religion-based peremptories); Angela J. Mason, Note, Discrimination Based on Religious Affiliation: Another Nail in the Peremptory Challenge's Coffin?, 29 GA. L. REV. 493 (1995) (arguing that logic requires extension of Batson to religion, which will result in demise of peremptory challenge). But see J. Suzanne Bell Chambers, Note, Applying the Break: Religion and the Peremptory Challenge, 70 IND. L.J. 569 (1995) (arguing that extension of Batson to peremptories exercised on account of religion is neither constitutionally required nor desirable as matter of policy). To date, the courts have largely declined so extend Batson's protection to religious groups. See State v. Davis, 504 N.W.2d 767 (Minn. 1993), cert. denied, 114 S. Ct. 2120 (1994); Casarez v. Texas, 913 S.W.2d 468, 478 (Tex. Crim. App. 1995) (en banc) (holding, on rehearing, that peremptory challenges may be exercised on basis of religion in individual cases). But see Davis, 114 S. Ct. at 2120-22 (Thomas, J., dissenting from denial of certiorari) (arguing that logic of J.E.B would require Court to condemn peremptory challenges exercised on religious grounds).
344. See Batson v. Kentucky, 476 U.S. 79, 124 (1986) (Burger, C.J., dissenting); Elaine A. Carlson, Batson, J.E.B., and Beyond: The Paradoxical Quest for Reasoned Peremptory Strikes in the Jury Selection Process, 46 BAYLOR L. REV. 947, 970-75 (1994) (analyzing propriety under Batson of religion-based peremptory challenges and of voir dire questions designed to probe prospective juror's religious beliefs); Brian E. Leach, Comment, Extending Batson v. Kentucky to Gender and Beyond: The Death Knell for the Peremptory Challenge?, 19 S. ILL. U. L. REV. 381, 398 (1995) (summarizing case law addressing possible extension of Batson to religion-based peremptories); Angela J. Mason, Note, Discrimination Based on Religious Affiliation: Another Nail in the Peremptory Challenge's Coffin?, 29 GA. L. REV. 493 (1995) (arguing that logic requires extension of Batson to religion, which will result in demise of peremptory challenge). But see J. Suzanne Bell Chambers, Note, Applying the Break: Religion and the Peremptory Challenge, 70 IND. L.J. 569 (1995) (arguing that extension of Batson to peremptories exercised on account of religion is neither constitutionally required nor desirable as matter of policy). To date, the courts have largely declined so extend Batson's protection to religious groups. See State v. Davis, 504 N.W.2d 767 (Minn. 1993), cert. denied, 114 S. Ct. 2120 (1994); Casarez v. Texas, 913 S.W.2d 468, 478 (Tex. Crim. App. 1995) (en banc) (holding, on rehearing, that peremptory challenges may be exercised on basis of religion in individual cases). But see Davis, 114 S. Ct. at 2120-22 (Thomas, J., dissenting from denial of certiorari) (arguing that logic of J.E.B would require Court to condemn peremptory challenges exercised on religious grounds).
345. See Batson v. Kentucky, 476 U.S. 79, 124 (1986) (Burger, C.J., dissenting); Elaine A. Carlson, Batson, J.E.B., and Beyond: The Paradoxical Quest for Reasoned Peremptory Strikes in the Jury Selection Process, 46 BAYLOR L. REV. 947, 970-75 (1994) (analyzing propriety under Batson of religion-based peremptory challenges and of voir dire questions designed to probe prospective juror's religious beliefs); Brian E. Leach, Comment, Extending Batson v. Kentucky to Gender and Beyond: The Death Knell for the Peremptory Challenge?, 19 S. ILL. U. L. REV. 381, 398 (1995) (summarizing case law addressing possible extension of Batson to religion-based peremptories); Angela J. Mason, Note, Discrimination Based on Religious Affiliation: Another Nail in the Peremptory Challenge's Coffin?, 29 GA. L. REV. 493 (1995) (arguing that logic requires extension of Batson to religion, which will result in demise of peremptory challenge). But see J. Suzanne Bell Chambers, Note, Applying the Break: Religion and the Peremptory Challenge, 70 IND. L.J. 569 (1995) (arguing that extension of Batson to peremptories exercised on account of religion is neither constitutionally required nor desirable as matter of policy). To date, the courts have largely declined so extend Batson's protection to religious groups. See State v. Davis, 504 N.W.2d 767 (Minn. 1993), cert. denied, 114 S. Ct. 2120 (1994); Casarez v. Texas, 913 S.W.2d 468, 478 (Tex. Crim. App. 1995) (en banc) (holding, on rehearing, that peremptory challenges may be exercised on basis of religion in individual cases). But see Davis, 114 S. Ct. at 2120-22 (Thomas, J., dissenting from denial of certiorari) (arguing that logic of J.E.B would require Court to condemn peremptory challenges exercised on religious grounds).
346. See Batson v. Kentucky, 476 U.S. 79, 124 (1986) (Burger, C.J., dissenting); Elaine A. Carlson, Batson, J.E.B., and Beyond: The Paradoxical Quest for Reasoned Peremptory Strikes in the Jury Selection Process, 46 BAYLOR L. REV. 947, 970-75 (1994) (analyzing propriety under Batson of religion-based peremptory challenges and of voir dire questions designed to probe prospective juror's religious beliefs); Brian E. Leach, Comment, Extending Batson v. Kentucky to Gender and Beyond: The Death Knell for the Peremptory Challenge?, 19 S. ILL. U. L. REV. 381, 398 (1995) (summarizing case law addressing possible extension of Batson to religion-based peremptories); Angela J. Mason, Note, Discrimination Based on Religious Affiliation: Another Nail in the Peremptory Challenge's Coffin?, 29 GA. L. REV. 493 (1995) (arguing that logic requires extension of Batson to religion, which will result in demise of peremptory challenge). But see J. Suzanne Bell Chambers, Note, Applying the Break: Religion and the Peremptory Challenge, 70 IND. L.J. 569 (1995) (arguing that extension of Batson to peremptories exercised on account of religion is neither constitutionally required nor desirable as matter of policy). To date, the courts have largely declined so extend Batson's protection to religious groups. See State v. Davis, 504 N.W.2d 767 (Minn. 1993), cert. denied, 114 S. Ct. 2120 (1994); Casarez v. Texas, 913 S.W.2d 468, 478 (Tex. Crim. App. 1995) (en banc) (holding, on rehearing, that peremptory challenges may be exercised on basis of religion in individual cases). But see Davis, 114 S. Ct. at 2120-22 (Thomas, J., dissenting from denial of certiorari) (arguing that logic of J.E.B would require Court to condemn peremptory challenges exercised on religious grounds).
347. Holland v. Illinois, 493 U.S. 474, 486 (1990). See generally Laurie Magid, Challenges to Jury Composition: Purging the Sixth Amendment Analysis of Equal Protection Concepts, 24 SAN DIEGO L. REV. 1081, 1104-11 (1987) (describing judicial efforts to determine which community groups are cognizable for Sixth Amendment purposes). But cf. Marder, supra note 79, at 1104 (suggesting that "dividing people according to distinctive groups is a difficult task and one that is likely to seem unfair to, and be divisive within, the community").
348. See Lockhart v. McCree, 476 U.S. 162, 174 (1986); Duren v. Missouri, 439 U.S. 357, 364 (1979).
349. McCree, 476 U.S. at 174 (emphasis added).
350. Taylor v. Louisiana, 419 U.S. 522, 530 (1975).
351. McCree, 476 U.S. at 175.
352. See supra note 29.
353. The lower federal courts have also proven themselves equal to this task. In Willis v. Zant, 720 F.2d 1212 (11th Cir. 1983), the court was presented with a claim that "young adults from age 18-30" were a distinctive community group for Sixth Amendment purposes. See id. at 1215. To resolve this claim, the court laid down a test: To show that a group is distinctive or cognizable under the sixth amendment, a defendant must show: (1) that the group is defined and limited by some factor (i.e., that the group has a definite composition such as by race or sex); (2) that a common thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group's interests cannot be adequately represented if the group is excluded from the jury selection process. Id. at 1216. Other courts have applied the Willis test, or one like it, to reach the conclusion that young adults, and various other groups, do not constitute distinctive groups within the community for Sixth Amendment purposes. See United States v. Fletcher, 965 F.2d 781, 782-83 (9th Cir. 1992) (college students); Silagy v. Peters, 905 F.2d 986, 1009-11 (7th Cir. 1990) (people over 70); United States v. Canfield, 879 F.2d 446, 447 (8th Cir. 1989) (residents of Minneapolis); Ford v. Seabold, 841 F.2d 677, 681 (6th Cir. 1988) (young adults aged 18-29); United States v. Salamone, 800 F.2d 1216, 1218-20 (3d Cir. 1986) (members of National Rifle Association); Anaya v. Hansen, 781 F.2d 1, 5-8 (1st Cir. 1986) ("blue collar workers" and "less educated individuals"); Barber v. Ponte, 772 F.2d 982, 997-1000 (1st Cir. 1985) (en banc) (young adults aged 18-34); United States v. Kleifgen, 557 F.2d 1293, 1296 (9th Cir. 1977) (unemployed, young, and non-high school graduates); United States v. Olson, 473 F.2d 686, 688 (8th Cir. 1973) (people aged 18-20). The Willis test is a sensible one. Coupled with the Supreme Court's admonition in McCree that distinctive groups do not include "any . . . group defined solely in terms of shared attributes that render members of that group unable to serve as jurors in a particular case," McCree, 476 U.S. at 176-77, the Willis test presents a workable way for courts to police the limits of community representation.
354. See JOHN HART ELY, DEMOCRACY AND DISTRUST 135-79 (1980).
355. See id.
356. Nothing that I have said in this Article demonstrates that the Sixth Amendment would support the result that the Court reached in Georgia v. McCollum, 505 U.S. 42, 48-55, 59 (1992), extending the Batson prohibition to criminal defense counsel. This does not mean that the Sixth Amendment definitely would not support the result in McCollum; it means only that the question of whether the Sixth Amendment's Jury Clause protects the government as well as the accused is beyond the scope of this Article. On that subject, see generally Susan Bandes, Taking Some Rights Too Seriously: The State's Right to a Fair Trial, 60 S. CAL. L. REV. 1019 (1987), as well as Amar, supra note 85, at 681-82. It is worth noting, however, that even if the Sixth Amendment forbade defense counsel from engaging in discriminatory jury selection, the question of the appropriate appellate remedy for such discrimination would not arise. The Fifth Amendment's Double Jeopardy Clause would preclude the government from appealing any acquittal that followed from defense counsel's jury discrimination, and the government would nave no incentive to complain if it obtained a conviction. The McCollum case itself made its way to the Supreme Court only because the State had filed a pre-trial motion to forbid defense counsel from violating Batson, the trial court had denied that motion, and the State was given permission to take an interlocutory appeal. See McCollum, 505 U.S. at 45. In a similar vein, nothing in this Article suggests that the Seventh Amendment's jury trial guarantee in civil cases would support the result that the Court reached in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). As noted earlier, the problem of discriminatory peremptory challenges in the civil setting is beyond this Article's scope. See supra note 18. On the issue of community representation on the civil jury, see generally Phoebe A. Haddon, Rethinking the Jury, 3 WM. & MARY BILL RTS. J. 29 (1994). It bears mentioning, though, that even if the Seventh Amendment supported the result in Edmonson for federal civil cases, it probably would not support that result in state civil cases, because the Seventh Amendment's jury trial guarantee is among the provisions of the first eight amendments that have not been incorporated through the Fourteenth Amendment to apply to the states. See Curtis v. Loether, 415 U.S. 189, 192 n.6 (1974) (holding that jury trial in civil cases is not privilege or immunity of national citizenship which states are forbidden by Fourteenth Amendment to abridge); Walker v. Sauvinet, 92 U.S. 90, 92 (1875) (same); see also Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 217 (1916) (holding that Seventh Amendment jury trial guarantee does not apply in state court civil cases).
357. Nothing that I have said in this Article demonstrates that the Sixth Amendment would support the result that the Court reached in Georgia v. McCollum, 505 U.S. 42, 48-55, 59 (1992), extending the Batson prohibition to criminal defense counsel. This does not mean that the Sixth Amendment definitely would not support the result in McCollum; it means only that the question of whether the Sixth Amendment's Jury Clause protects the government as well as the accused is beyond the scope of this Article. On that subject, see generally Susan Bandes, Taking Some Rights Too Seriously: The State's Right to a Fair Trial, 60 S. CAL. L. REV. 1019 (1987), as well as Amar, supra note 85, at 681-82. It is worth noting, however, that even if the Sixth Amendment forbade defense counsel from engaging in discriminatory jury selection, the question of the appropriate appellate remedy for such discrimination would not arise. The Fifth Amendment's Double Jeopardy Clause would preclude the government from appealing any acquittal that followed from defense counsel's jury discrimination, and the government would nave no incentive to complain if it obtained a conviction. The McCollum case itself made its way to the Supreme Court only because the State had filed a pre-trial motion to forbid defense counsel from violating Batson, the trial court had denied that motion, and the State was given permission to take an interlocutory appeal. See McCollum, 505 U.S. at 45. In a similar vein, nothing in this Article suggests that the Seventh Amendment's jury trial guarantee in civil cases would support the result that the Court reached in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). As noted earlier, the problem of discriminatory peremptory challenges in the civil setting is beyond this Article's scope. See supra note 18. On the issue of community representation on the civil jury, see generally Phoebe A. Haddon, Rethinking the Jury, 3 WM. & MARY BILL RTS. J. 29 (1994). It bears mentioning, though, that even if the Seventh Amendment supported the result in Edmonson for federal civil cases, it probably would not support that result in state civil cases, because the Seventh Amendment's jury trial guarantee is among the provisions of the first eight amendments that have not been incorporated through the Fourteenth Amendment to apply to the states. See Curtis v. Loether, 415 U.S. 189, 192 n.6 (1974) (holding that jury trial in civil cases is not privilege or immunity of national citizenship which states are forbidden by Fourteenth Amendment to abridge); Walker v. Sauvinet, 92 U.S. 90, 92 (1875) (same); see also Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 217 (1916) (holding that Seventh Amendment jury trial guarantee does not apply in state court civil cases).
358. See Bush v. Vera, 116 S. Ct. 1941, 2001 n.5 (1996) (Souter, J., joined by Ginsburg & Breyer, JJ., dissenting).
359. Id. (Souter, J., joined by Ginsburg & Breyer, JJ., dissenting).
360. Id. (Souter, J., joined by Ginsburg & Breyer, JJ., dissenting).
361. Id. (Souter, J., joined by Ginsburg & Breyer, JJ., dissenting).
362. Id. (Souter, J., joined by Ginsburg & Breyer, JJ., dissenting).
363. Id. (Souter, J., joined by Ginsburg & Breyer, JJ., dissenting).
364. Id. (Souter, J., joined by Ginsburg & Breyer, JJ., dissenting).
365. See supra notes 214-43 and accompanying text.
366. As I have explained earlier, discriminatory peremptories do offend core equal protection values. See supra Section IV.A-B. Thus I do not argue in this Article that Batson and its progeny were wrongly decided as a matter of equal protection law, see supra note 76 (identifying issues involved in analyzing Batson as equal protection law), simply that the equal protection theory of Batson does not adequately account for the fair trial harm caused by the discriminatory use of peremptory challenges. My proposal is intended not to replace Batson, but to coexist with it and to provide a coherent reason for automatically reversing convictions tainted by Batson error. The reach of the Sixth Amendment theory that I propose in this Article is admittedly somewhat narrower than the current reach of Batson in all its applications. See supra note 316.
367. See Sullivan v. Louisiana, 508 U.S. 275, 279-82 (1993) (holding that trial court's failure to instruct jury properly on reasonable doubt standard denied defendant's Sixth Amendment right to jury trial and was "structural error" requiring automatic reversal).