It’s an encouraging sign that, when two prosecutors this week used seven of their peremptory challenges to strike black potential jurors, resulting in a sustained Batson challenge and the dismissal of the jury, Harris County District Attorney Pat Lykos disciplined them.
Forcing a prosecutor who uses peremptory challenges on the basis of race to start over with a new jury panel is like throwing him in the briar patch; it’s no kind of deterrence. (The better remedy in the trial court might have been for the judge, Jeanine Barr of the 182nd District Court, to seat the black jurors whom the prosecutors couldn’t give race-neutral reasons for striking.)
I can’t say whether the discipline DA Lykos meted out was excessive because, well, we don’t have anything to compare it to. I’m thinking that the accused, who gets to sit in the Harris County Jail now till June instead of finishing his trial this week, would answer the question in the negative, though. If he is acquitted then, he’s spent three extra months in jail thanks to the prosecutors; if he’s convicted then, we can never know whether this week’s jury would have acquitted him.
All human beings have prejudices. Anyone who denies having prejudices is more likely to fall victim to his own prejudices. The best we can do is to be aware of them and not act on them.
Any lawyer who tries cases is sometimes tempted to fall back on stereotypes in exercising peremptory challenges. When we succumb, we’ve failed. Sometimes, though — because of limits on voir dire — it’s the best we can do. These are two conscientious lawyers who screwed up one voir dire. I don’t think they consciously said, “first thing we do, let’s strike all the blacks”, but neither do I believe that they did an internal Batson audit of their strikes before turning in the list.
Their boss was right to discipline them, to remind both them and the rest of the Office to do such an audit so that they can’t claim to be “shocked” when 12 white people are called from the panel to the jury box.
In the Houston Chronicle, DA Lykos called her two employees “negligent and incompetent.” “Negligent” is fair, as the lowest mental state that ought to support discipline, but publicly calling lawyers who work for you “incompetent” is beyond the pale. To call a lawyer “incompetent” in any circumstances is harsh. It might make good press (lead story! front page! woohoo!), but it’s ruinous to a good lawyer’s reputation, and potentially libelous to boot.
If you work somewhere, and the boss might call you “incompetent” on the front page of the ninth-largest daily newspaper in the United States, let’s face it: it’s a shitty place to work.