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[ARCHIVE CLIP: The Honorable, the Chief Justice, and the Associate Justices of the Supreme Court of the United States.] 

[ARCHIVE CLIP:All yay, all yay, all yay.] 

[ARCHIVE CLIP: All persons having business before the Honourable, the Supreme Court of the United States are admonished to draw near and give their attention.]

[ARCHIVE CLIP: All yay, all yay, all yay.]
[ARCHIVE CLIP: The court is now sitting. 

[ARCHIVE CLIP: All yay.]

[ARCHIVE CLIP: God save the United States and this Honourable Court.]

[ARCHIVE CLIP: All yay, all yay, all yay...]

JAD ABUMRAD:  Alright, let's do it. 

SEAN RAMESWARAM: Yep. 

JAD: Hey, I'm Jad Abumrad. This is More Perfect, a miniseries about the Supreme Court. And today's story’s from a reporter Sean—I always eff up your last name, can you just say it? 

SEAN: Rameswaram

JAD: Rameswaram. I always put the accent in the wrong place. Anyhow, let me set the table for you. We live in a representative democracy, and what does that actually mean practically speaking like—when do we come in contact with that democracy? Two places seems to me mainly—one when we vote, right?

SEAN:  Yeah, you're asking me? 

JAD: Yeah. 

SEAN: I was deep in thought—if you vote... 

JAD: If you vote, it's true... 

SEAN: I know, like college educated, super progressive human beings who are like, “Why would I ever vote? It doesn't mean anything.” 

JAD: Exactly. 

SEAN: Not to mention people who just don't even care about the world. JAD: Yeah, it sort of makes my point like voting is the first way. And for a lot of people, it's entirely optional. The second way is not—you will be fined if you don't do it. And I mean, serving on a jury. This is where like we the people decide who goes to jail, who gets free, who lives, who dies. This is where we actually do democracy. Today, we start with the story of a guy who—Supreme—who is Supreme Court famous, would you say? 

SEAN: Yeah, he's in the books. He's like a chapter. 

JAD: Yeah, he's like one of the most important names you've never heard of because he's at the center of this ongoing battle about who gets to serve on juries. And his name—depending on who you are—either symbolizes the best parts of American democracy or the most cynical.

SEAN: Should I say his name? 

JAD: Yeah, go for it. 

SEAN: James Batson. James Kirkland Batson. 

SEAN: Hello, James? 

JAMES BATSON: Yeah.

SEAN: Sean.  

SEAN: I went to his house in Louisville. 

SEAN Tell me your full name and tell me where you're from and—and that bit.

JAMES BATSON: James Batson—Louisville, Kentucky.

SEAN: James Batson, his name just kept coming up over and over again, when I was looking through the history of jury selection in America. So I called him up. And I was like, “Hey, I'm this radio reporter in New York City. And I'm really interested in your case, because there's this other case before the court right now. Could I come talk to you?” And he's—he was like... 

JAMES BATSON: Uh, yeah.

SEAN: Sure. 

JAMES BATSON: Okay. Make sure my full name and city’s mentioned. 

SEAN: Of course.

SEAN: He's tall. He's built like a fridge. He's a black man.

JAMES BATSON: Right now I drive a truck, local and cross country. As far as I’ve been it’s 15 hours one way.

SEAN: Where was that? 

JAMES BATSON: Florida. 

SEAN: As a kid he was—he was an A student.

JAMES BATSON: Graduated from [inaudible] Technical High School.

SEAN: He was in a like vocational school specializing in electrical engineering. 

JAMES BATSON: Industrial electricity. 

SEAN: He seemed pretty popular.

JAMES BATSON: In fact I got a perfect attendance award at Sunday school when I was 18. 

SEAN: But... 

JAMES BATSON: Shortly after that seemed like the bottom fell out.

[MUSIC IN]

SEAN: So James Batson grew up in the west end of Louisville in the 1970s. And the West End was super rough. 

JAMES BATSON: With people selling dope, prostitution. Uh just everything had to do with fast money. And at a young age, fast money was like the American dream. I mean, it's pretty hard when a lot of people around you got nice things. And they got them because they're doing something illegal. And you keep coming up with rabbit ears. You're shaking your head like you know what rabbit ears are. 

SEAN: What are rabbit ears? 

JAMES BATSON: You pull both of your pockets out. And there’s nothing in either one of them. 

[Laughter]

SEAN: He said it all started when he was 10, he wanted a pair of shoes. He couldn't afford them. 

JAMES BATSON: Chuck Taylors well when they first came out, if you didn't have a pair of those, you get on what they call buddies.

SEAN: What are buddies?

JAMES BATSON: Cheap tennis shoes. 

SEAN: Him and his brother asked his mom for money and they—she gave them some money, but not enough. So to make up the difference, they went out and they stole people's empty soda bottles and turned them in for like the deposits.

JAMES BATSON: Three cents or a nickel apiece, stolen enough pop bottles to get Chuck Taylors. That was my first experience with illegal money, stealing pop bottles. 

[MUSIC IN]

JAMES BATSON: So everything else advanced from there. 

SEAN: Fast forward a couple of years, James is more grown up. He starts doing some petty crime and he starts breaking into houses.

JAMES BATSON: They—they actually gave me a name—they called me the pants pocket burglar. When the crime would happen, burglar would take only stuff could fit in his pocket. 

SEAN: Like purses and jewelry. 

JAMES BATSON: No merchandise. If it didn't fit in his pocket, he wouldn't take it. 

SEAN: And that was you. 

JAMES BATSON: I’m not admitting that was me…

SEAN: Plausible deniability. Those are his two middle names. 

SEAN: Right, but I'm asking you—was it you?

JAMES BATSON: I take the fifth.

[Laugher]

SEAN: So you’re saying...

SEAN: So James starts stealing bigger things and he starts getting arrested, starts going in and out of the courts, and then one of those small in and out cases, became I think American legal history. 

JAMES BATSON: They get me out of a car. 

SEAN: 1982 cops pull him over. 

JAMES BATSON: They pulled me out of the car. They said, “You have a right to remain silent.” Anything and went through that little protocol, whatever. 

SEAN: They tell him... 

JAMES BATSON: Some burglaries that happened in that area. And they said I did them. 

SEAN: Were you—were you stealing stuff at the time? 

JAMES BATSON: Yeah, at the time. I had been doing some burglaries or whatever. But anyway,

SEAN: James said he didn't do this one and that they didn't have the proof. He was just driving around in his car. And they picked him up.

JAMES BATSON: When they arrested me, I'm thinking they didn't really have a case against me. They didn't catch me breaking into a house. You got me out of a car. No fingerprints nowhere. 

SEAN: He thinks he can win. 

JAMES BATSON: I feel like I could beat the case, so I'm like I'm on a jury trial.

JOE GUTTMAN: And the mere fact that you and I are talking about James Batson’s case 30 plus years later, is amazing. 

[MUSIC IN]

SEAN: That's the prosecutor. 

JOE GUTTMAN: My name is Joe Guttman. I'm from Louisville, Kentucky. I grew up in Louisville, raised in Louisville.  

SEAN: Wanted to be a lawyer since he was a kid. 

JOE GUTTMAN: My parents went through a divorce when I was very young, and I wanted to go to law school to help kids in divorces.

SEAN: 1982 when Joe Guttman first gets the Batson case, he's 26 years old and had just become a lawyer.

JOE GUTTMAN: Uh James' case was in the first six months that I was in the prosecutor's office. 

SEAN: Pretty impressive first year. 

JOE GUTTMAN: Um, no. [MUSIC OUT] Starting out, I lost my first eight trials. 

SEAN: Really? 

JOE GUTTMAN: Yeah.

SEAN: But he says when he saw Batson’s case—you know—this low level burglary... 

JOE GUTTMAN: A break in of a house and a purse being stolen? 

SEAN: He was like, oh, maybe this will be my win. 

JOE GUTTMAN: The evidence appeared that he was guilty of the crime. James was accused and identified as the one who's having done it. 

SEAN: Through eyewitnesses, they're saying James did it, but James is saying, “No, I didn't, you don't have any proof.” He says the cops probably showed these witnesses photos of him before because they—he’d never seen them before in his life. So—so Guttman’s on the case, he goes to trial and... 

JAMES BATSON: Had a hung jury. 

SEAN: They ended up being a hung jury. 

JAMES BATSON: Hip, hip, hooray. 

SEAN: It means they couldn't come to a unanimous decision. So James gets off.

SEAN: Why was it a hung jury? 

JOE GUTTMAN: Well, in Kentucky, you have to have a unanimous verdict. So the defense is looking for that one juror that keeps from convicting. 

SEAN: There was apparently one juror who just didn't buy it—didn't buy the evidence and thought James was legit. It was a black woman.

JAMES BATSON: One black lady came to visit me after the jury was over. She said, “I really, really don't think you're guilty. The rest of the jury was trying to make me say that you was guilty. And I was saying not guilty.” So it ended up being a hung jury. 

JOE GUTTMAN: I was disappointed at that point. I was having second thoughts about—you know—is this the right career for me?

SEAN: So Joe Guttman—he says, “I'm going to try this case one more time. It was pretty close to guilty. I had this one juror who hung it up. So let me do it one more time.” And he does something this time, a little differently. 

[MUSIC IN]

SEAN: Just to set it up, as you know, when you get a jury summons, you go in, you're on a jury pool and at the beginning of a trial...

[ARCHIVE CLIP: All rise court…] 

[ARCHIVE CLIP: Potential jurors, please stand and raise your right hand.] SEAN: You have jury selection. 

[ARCHIVE CLIP: You and each of you do solemnly swear or affirm that you will true answer tonight to such questions as maybe asked you touching your qualifications…]

SEAN: That’s where both sides—the prosecution, the defense, sometimes the judge—they get jurors into a room and they start asking lots of questions.

[ARCHIVE CLIP: Is there anyone here who's been the victim of a crime?] 

[ARCHIVE CLIP: Have any of you had family members that have been victims of crime?]

[ARCHIVE CLIP: Okay, I saw a couple of hands.]

SEAN: They start interviewing jurors.

[ARCHIVE CLIP: Do you have any opinions one way or the other about the criminal justice system in general?]

SEAN: To figure out which jurors do we want. 

[ARCHIVE CLIP: Do you have any kids?]

[ARCHIVE CLIP: I do.] 

[ARCHIVE CLIP: Are you a member or are you involved in any organizations?] 

[ARCHIVE CLIP: I'm a member of a church…] 

SEAN: Which jurors do we want to get rid of? And that's the more important part of this process—which jurors do we want to toss off this jury pool?

[ARCHIVE CLIP: Were you ever in the military?]

[ARCHIVE CLIP: No.]

[ARCHIVE CLIP: Okay…]

JAD: So what are the rules to get rid of jurors?

SEAN: There's two ways to get rid of jurors to get down to that group of 12 in this case, and the first way is called striking for cause.

[ARCHIVE CLIP: The state would move to excuse him for cause at this time.]

SEAN: Striking for cause is like when they ask you can you be fair in this case? If you say, “You know, no, I really can't—I have really strong feelings about the people or the subject matter.” That's a strike for cause or it’s like, “Hey, that lady who's sitting in the chair—the defendant, that's—that's my cousin. We grew up together.”

JAD: Oh, like conflict of interest. 

SEAN: Blatant conflict of interest, “That's my boss. We go out every Saturday for brunch.” Whatever it is. You're too close to this. You can't be fair. 

JAD: Got it. 

SEAN: So that one’s cause—that's pretty much common sense. It makes sense to everyone. But the second way is the heart of this whole matter, this whole story. It's called a peremptory challenge. 

JAD: Preemptory or…

SEAN: Not preemptory, peremptory. 

JAD: That’s a word?

SEAN: Depending on how you punch it into Google, it'll be like, “That’s a typo, Son.” 

JAD: What does it mean, what does peremptory mean? 

SEAN: Peremptory challenge means you get a certain number of strikes, just to get rid of people you think might not be fair to you. But you can really use them any way you want. And with these strikes, you don't have to give any reason. 

JAD: Wow. And how many of these do you get? 

SEAN: So it varies from state to state. In some states, it's 20. In other states, it's four. In Kentucky then and now….

JOE GUTTMAN: Each side gets eight. Eight jurors that they just get to put the X and say, “You're not gonna sit on this trial hook or crook.”

JAD: And they don't have to explain themselves at all? 

SEAN: They don't have to explain anything. And this isn't just some weird legal rule we made up like 20 years ago. This is something that has been around. It's older than America goes back to England in the 11th, 12th century. And before that—some say it goes back to like 104 BC Roman times. 

JAD: Really? 

SEAN: Really. And the idea is—I feel like the visualization is like a seesaw. 

[MUSIC IN]

SEAN: Like, okay, we need to get to this perfect group of 12 people. And—you know—there's going to be people who are biased to either side. So each side gets to eliminate people. You get three—you get three—you get four—you get four—and then we'll come to this balance in the jury of a group of people who are going to be fair. 

JAD: So if both sides are sort of trying to tilt it their way from either side, the thinking is, it'll end up balanced.

[MUSIC OUT]

SEAN: Yeah. And also the thinking was that this would give both sides more faith in the process, and at the same time, protect both sides from like the tyranny of a trial judge who has too much power. 

JAD: Gotcha. Okay.

SEAN: Anyways so what happens in this case is the second trial begins. SEAN: So take me into the moment of jury selection, which is I imagine early in the...

JOE GUTTMAN: Yeah, that's—that's the first thing that happens. 

SEAN: So set a scene for me. 

JOE GUTTMAN: Well, the only people that were in the courtroom were some family members of Mr. Batson... 

SEAN: His attorney. 

JOE GUTTMAN: A detective, and me, and the jury.

SEAN: So the reason we're talking about this case, and Joe Guttman, and James Batson is because the next thing that happens is Joe Guttman gets up there, he scans the jury pool, and at this point he says there were 13 people left—four that were black, nine that were white—and he uses his peremptory challenges to strike off one, two, three, four Black jurors. They're all gone. Leaving an all white jury. 

SEAN: Do you remember striking four minority people off this jury.

JOE GUTTMAN: Well, I mean, I did. Do I specifically remember the reason for each? No, I don't.

SEAN: I asked Joe, was the reason because they were, in fact, black.

JOE GUTTMAN: No, I can say that they were not stricken because of race. And I remember specifically that one of the jurors lived in the neighborhood.

SEAN: He doesn't exactly remember what his reasons were for all four black jurors. But what's important for our story is to know that James Batson is sitting there in the room, as all of this is happening. 

JAMES BATSON: And I'm like, ah—just completely—they struck all the blacks off the jury pool. It ain't right and I told my lawyer, I said object to that, you know.

SEAN: Lawyer says, “Why would I object?” James said, “Because it's not fair.” 

JAMES BATSON: He said, “No, that's a long standing rule.” 

SEAN:  He's allowed to do that. 

JAMES BATSON: And you can strike whoever you want.

SEAN: Was your lawyer white or was he black? 

JAMES BATSON: He was white. 

SEAN: And was the Judge white or black? 

JAMES BATSON: He was white. 

SEAN: And aside from those four people that have just been struck off the jury... 

JAMES BATSON: Everybody in the courtroom was white.

SEAN: So again…

JAMES BATSON: Told my lawyer to object... 

SEAN: And again, the lawyer says…

JAMES BATSON: He said, “No, I told you, you can’t object to this.” I said, “What you mean, you can't? You work for me, you do what I say. You object, object anyway. I don't care if it’s a long standing rule—object.” And he did. And it all came behind that one objection.

SEAN: This one tiny moment. 

JAMES BATSON: Yeah.

JOE GUTTMAN: What happened is after the jury was selected, Doug Dayale, James attorney said, “Judge, I want to make an objection.” We went up to the bench. He said, “Your Honor, you can see there's an all white jury, I would like for him to explain his strikes.” But before I could get another word out of my mouth, Judge Ryde said, “Mr. Guttman does not have to explain his rights. It's not the law. Let's move on.” 

SEAN: Hm.

JOE GUTTMAN: “Move on.”

SEAN: So they moved on with an all white jury. 

JAMES BATSON: And I got found guilty. I got 20 years. 

SEAN: Hm. For burglary? 

JAMES BATSON: Yes. 

SEAN: So Batson goes to prison. 

JAMES BATSON: Danville, Kentucky. 

SEAN: And he says his first move when he got there. 

JAMES BATSON: Appeal immediately.

[MUSIC IN]

SEAN: And ultimately, his appeal ends up in the hands of this guy–

David Niehaus: David Niehaus, Jefferson County Public Defender's Office.

SEAN: And Niehaus decides to do something ambitious. 

David Niehaus: What we did is we call it taking a tour of the jurisdictions.

[MUSIC IN]

[SONG CLIP: Washington, Oregon, California, Nevada, Idaho, Utah, Arizona, Montana, Wyoming...]

SEAN: He takes a legal road trip. So Niehaus and his team start looking at other states, looking at other regions to find out whether this is a problem elsewhere.

David Niehaus: Is this just something limited to the south? Or is it something else?

JAD: You mean like are people in other places doing what Joe Guttman did and using peremptories to kick black people off of juries? 

SEAN: Right, right, right, right.

SEAN: And what he found is that this was happening. 

[SONG CLIP: Illinois, Michigan, Indiana, Kentucky, Ohio…] 

SEAN: Pretty much everywhere. So they filed an appeal which worked its way up through the courts. And in December 1985.

[ARCHIVE CLIP: Thank you, gentlemen, the case is submitted. We'll hear arguments next in Batson against Kentucky.]

SEAN: The case arrives at the Supreme Court of the United States.

JOE GUTTMAN: I get a call one day from the Associated Press...

JAD: That's Joe Guttman?

SEAN: Mhm.

JOE GUTTMAN: ...saying, “How do you feel about the Supreme Court accepting the case of James Kirkland Batson?” and I was almost speechless. And... 

SEAN: Were you sitting on the bench? 

JOE GUTTMAN: I did go just to observe and learn. 

[ARCHIVE CLIP, Judge: Mr. Niehaus, I think you may proceed whenever you're ready.] 

[ARCHIVE CLIP, David Niehaus: Thank you, Your Honor. Mr. Chief Justice, and may it please the court…]

SEAN: So here's how it ultimately went down. 

[MUSIC IN]

SEAN: Batson’s side—Niehaus—he argues that these strikes were being used to take black people off juries. And that this was happening everywhere.

[ARCHIVE CLIP, David Niehaus: We were able to list some 25 jurisdictions…]

SEAN: And that the practice violated the 14th Amendment, which was equal protection, and the Sixth Amendment, which was a right to a jury of your peers.

[ARCHIVE CLIP, David Niehaus: To a jury that is as representative of the community as possible.]

SEAN: So if Louisville is like 17%, black, the jury should probably be about 17% black, and the prosecutor shouldn't just be allowed to skew that without having to give a reason. 

[ARCHIVE CLIP, Kentucky: First of all…] 

SEAN: Kentucky's response... 

[ARCHIVE CLIP, Kentucky: ...to require an explanation of peremptory challenges would destroy—we believe—the historical nature and function of the device itself.]

SEAN: And so Kentucky's saying, we shouldn't have to justify these strikes. The court has told us that again, and again.

[ARCHIVE CLIP, Kentucky Side: It has always been unfettered and uncontrolled by the court—unexplained.] 

SEAN: And this practice goes back centuries. And yes, there may be some abuses, but this is a tool that lawyers need.

[ARCHIVE CLIP, Judge: Thank you, gentlemen, the case is submitted.]

SEAN: Four months later, the court delivers its verdict. And in a seven to two decision... 

[MUSIC IN]

SEAN: Batson wins. The court found that the prosecutor’s actions for sure violated the 14th amendment. They said racial discrimination of any kind in jury selection is not allowed. Cue Dan Rather. 

[NEWS CLIP, Dan Rather: The high court ruled today it is illegal…] 

SEAN: Totes illegal. 

[NEWS CLIP, Dan Rather: ...even on a peremptory challenge—it is illegal for a lawyer to reject a juror on the basis of race.]

SEAN: James Batson’s sentence was immediately vacated. 

SEAN: How did that feel?

JAMES BATSON: It's indescribable. If you in prison, and you know your sentence is being taken away—I mean, that's a great feeling. I still brag every now and then and it's—the conversation come up. I could just be hanging out, playing chess—you know, I got a law in the law books, Batson rule [laughs].

SEAN: And that was the biggest deal of all this. The headline, there was this new rule...

[MUSIC IN]

JAMES BATSON: Batson rule.

[ARCHIVE CLIP: The Batson.]

[ARCHIVE CLIP: Batson.]

[ARCHIVE CLIP: Batson.]

[ARCHIVE CLIP: Batson rule.]

SEAN: ... named after him.

[ARCHIVE CLIP: Justice has put new limits on what is called peremptory challenge.]

SEAN: The Batson rule. The Batson rule is this echo of what James did in court that day. When you see people—minorities getting booted off of a jury, you can say, “Your Honor, I think that's a…” 

[ARCHIVE CLIP: Batson violation.]

SEAN: “...Batson violation.” And then the other side, be it the defense or the prosecution, has to provide nonracial reasons for why they eliminated that juror. And for a lot of people, this was a breakthrough. This was like, finally, we figured out how to do this right. There was a system in place to protect everyone. And that system was even extended to civil cases and eventually to women as well. 

JEFF ROBINSON: Uh, it was a big deal when the case was decided and the initial elation was quickly tempered with a strong dose of reality...

SEAN: This is Jeff Robinson. He's the director of the ACLU Center for Justice. 

JEFF ROBINSON: ...because what Batson prevents is deliberate racial discrimination.

BRYAN STEVENSON: And almost immediately... 

JEFF ROBINSON: All over the country... 

BRYAN STEVENSON: Prosecutors started training each other...

JEFF ROBINSON: Teaching each other... 

BRYAN STEVENSON: On how to get around Batson...

SEAN: That's Bryan Stevenson. He's the director of the Equal Justice Initiative. 

BRYAN STEVENSON: In Montgomery, Alabama. There were trainings all across the country. 

JEFF ROBINSON: And some of these are on videotape. 

SEAN: And I found one.

JAD: [laughs]

SEAN: I mean, it's on YouTube. 

[ARCHIVE CLIP: When you're picking a jury, you gotta stay to these basic rules.]

SEAN: This is one of those videos. This one—it's a Philadelphia prosecutor named Jack McMahon lecturing to a room full of young prosecutors on how to pick a jury.

[ARCHIVE CLIP, Jack McMahon: You know, in—in selecting blacks, you don't want the real educated ones. In my experience black women—young black women are very bad. There's an antagonism, I guess maybe because they're downtrodden on two respects there—they got two minorities, they’re women and they’re blacks. And so they're downtrodden on two areas and they somehow want to take it out on somebody and you don't want it to be you. And so…]

SEAN: The craziest thing about this video is that it was filmed just a few months after the Batson decision.

[ARCHIVE CLIP, Jack McMahon: Batson versus Kentucky, I'm sure you've all become aware of that case, and…]

SEAN: Jack McMahon basically tells these prosecutors, “Look, so we've got this new rule. Here's how you break it—you strike the black person off the jury, but just say it's for another reason.”

JEFF ROBINSON: Because that's what Batson requires—is a racially neutral reason.

[ARCHIVE CLIP, Jack McMahon: My advice would be—in that situation is—when you do have a black jury, you question them at length and on that little sheet that you have, mark something down that you can articulate later time if something happens. So let's say you strike three blacks to start with, first three people—write it down right then and there, I'd write it right in my little box there. You know, the woman had a kid about the same age as the defendant, and I thought she'd be sympathetic to a more—she's unemployed. And I just don't like unemployed people, because I find they're not too stable…]

BRYAN STEVENSON: It was almost this training to create a catalogue of reasons that on the face were race neutral. Just say you're excluding them because they're too tall. Or they're too old.

[ARCHIVE CLIP: Oh, that person was wearing a black sweater.]

JEFF ROBINSON: Things like, well, he lives in a bad neighborhood. 

[ARCHIVE CLIP: Person wouldn't maintain eye contact.] 

[ARCHIVE CLIP: Their body language.] 

[ARCHIVE CLIP: Or they belong to a church.] 

[ARCHIVE CLIP: Tattoos.]

[ARCHIVE CLIP: Or they're a nurse.]

[ARCHIVE CLIP, Jack McMahon: Any of those reasons, have it marked down...]

JEFF ROBINSON:: As long as a prosecutor doesn't say I excused that person because they're black. Batson says it's completely okay.

BRYAN STEVENSON: I was actually working on a case. 

SEAN: This is lawyer, Bryan Stevenson again. 

BRYAN STEVENSON: My office, at the time, was called the Southern Prisoners Defense Committee. This was when I was in Atlanta, Georgia, before I moved to Alabama. 

SEAN: And when was this? 

BRYAN STEVENSON: This was 1986. And we were defending someone down in Swainsboro, Georgia. A guy by the name of Gamble. And the Batson decision came down, and objections were made when the prosecutor used his peremptory strikes to exclude all of the African Americans. And we said, “Wait a minute, Your Honor, there's a new decision, Batson versus Kentucky, which means that the prosecutor can’t do this.” And the court said, “Well, I've read Batson, what this means is that the prosecutor has to give race neutral reasons.” And so the prosecutor says, “I've got my race neutral reasons.” He said, “Well, I struck this woman, because she looks just like the defendant.” The defendant was an African American man. I said, “Wait a minute, what is that?” “No, she does.” And the judge, “Oh, I see that,” he said.

SEAN: The judge said, “I see that?”

BRYAN STEVENSON: Oh, yes, he did. 

SEAN: What?!

BRYAN STEVENSON:  The prosecutor said, “I struck this man because he lives in South Swainsboro. And that's where the defendant lives.” And we were—of course—we’d say, “Look, all the black people live in South Swainsboro...”

SEAN: Geez.

BRYAN STEVENSON: “...all the white people—that's not a race neutral reason.” The judge said, “No, that is a race neutral reason.” He said, “I struck one person because this man was in the military. And he was discharged after five years in the military. And in my experience, Your Honor, you only get discharged honorably after an even number of years.” Well, the juror was put back on the stand. We said, “Well, were you discharged from the military honorably?” “Yes, I was—I was actually decorated. I got this medal. I got this award. I've got these things.” “Well, I still accept the prosecutor’s reading for excluding that person.” 

SEAN: Oh no.

BRYAN STEVENSON: My favorite was the prosecutor said...

SEAN: None of those were your favorite?

BRYAN STEVENSON: Oh no it gets better—it gets better. 

SEAN: This is insane.

BRYAN STEVENSON: Prosecutor said, “I struck this man because he testified that he was a Mason.” And he said, “Your Honor, I just don't want anybody who's a member of a Masonic lodge on my jury. They have their own codes, their own rituals, their own culture. I don't want that.” And the juror was put back on the stand. We asked the juror, “Are you a member of a Masonic Lodge?” And the juror said, “No, I'm not.” He said, “I'm a brick mason.” And the judge says, “I still know what you mean. I'll let you exclude that person.” 

SEAN: Oh, my God. 

BRYAN STEVENSON: Right. And so almost from the very beginning, there was this cynicism—this game playing. I used to tell people, “Batson’s not going to eliminate racial bias in jury selection. But it will make the jury selection process a lot more entertaining. Y'all should come to court and just watch the show.”

[MUSIC IN]

[SONG CLIP: That’s entertainment….]

SEAN: So you could argue that not only did Batson not change anything, but Batson made things worse. As one lawyer Stephen Bright put it to me...

STEPHEN BRIGHT: I think what Batson is really is basically a set of procedures to sort of legitimize and cover up the race discrimination that's going on. 

SEAN: You had this smelly, putrid problem of racial discrimination in jury selection, and instead of tossing it out, we just sprayed Febreze all over it.

JAD: You just kind of perfumed it vaguely. 

SEAN: Cheap cologne, it's still there. It’s just vaguely hidden. And now with the Batson rule, if you think the prosecution or the defense is striking people off because of race, you have to call them out. And then you have to somehow try and prove that the reason they're providing is a lie. And that's really, really difficult to do.

STEPHEN BRIGHT: Since 1986, for example, in the state of Washington, there have been probably 47, 48 challenges on Batson issues where people have been convicted, and they've said, “Wait a minute, the prosecutors were excusing people of color from the jury because they were people of color.” Out of those 46 to 50 challenges, there's been one reversal.

BRYAN STEVENSON: The state of Tennessee has not reversed a single case, under Batson, in the 30 years—40—since the Batson decision came down.

SEAN: As a result, he says there's still many counties in America... 

STEPHEN BRIGHT: Where the diversity of the jury has not increased very much at all.

SEAN: So for example, in one Louisiana parish, they looked at felony cases over an eight year period, and found that nearly half the black jurors were struck.

STEPHEN BRIGHT: In Houston County, Alabama... 

SEAN: Over a five year period.

STEPHEN BRIGHT: ...the data established that 80 percent of the African Americans qualified for jury service were struck.

JAD: 80 percent? 

SEAN: 80 percent, and that's in death penalty cases. So... 

JAD: Wow.

SEAN: I mean, if you think about that, like a big percentage of the time, these are lawyers who are going around the Batson rule, going around the law, going around the constitution to get these all white juries who are then oftentimes putting black men to death. And that reminds you of some pretty dark history.

JAD: Yeah wow... Super basic question... 

SEAN: Yeah. 

JAD: I mean, that video—training video—the assumption in that video is that having black people on the jury would hurt that guy—would hurt the prosecutor? 

SEAN: Yeah. 

JAD: Is that—should we just assume that or I mean, is there any—any data that would say that's even remotely true?

SEAN: The hardest thing about looking at this stuff analytically is that juries are like a black box. They don't let journalists and academics in often to study what's going on. The jury is kind of sacred that way. 

JAD: Yeah. 

SEAN: But the few times we've gotten data—like there's this group called the Capital Jury Project that looks at data, specifically in capital cases because that's where the stuff ends up being life or death. So they looked at data in like 350 cases in 14 states over a number of years. And they found that white men are more likely to go for the death penalty than black men. When you get to sentencing—that number—that the difference between white and black gets really exaggerated. Like, white men are seven times more likely to want the death penalty than a black person. There's another study that was done in Florida. And this one looked at felony cases over like 10 years. And they found that all white jury pools in Florida convicted black defendants 16 percent more often than white defendants. 

JAD: Okay. 

SEAN: But what was really interesting is like that that gap was practically eliminated when at least one member of the jury pool was black. 

JAD: Interesting. 

SEAN: So you put one black person on the jury pool, and that difference is annihilated. 

JAD: And to ask the obvious question, why? 

SEAN: I mean, obviously, criminal cases usually involve cops. And the reason that's often cited is that—you know—black jurors are less likely to believe cops. Black jurors are more likely to insert some sense of suspicion into the States or the Commonwealth or whatever's testimony. 

JAD: Yeah. 

SEAN: And almost everyone I talked to gave me a version of this that—you know—when you have black people on the jury they deliberate more, and that black people are less likely to trust law enforcement. Especially Jack McMahon, who was the guy we heard from in that video.

JACK MCMAHON: Listen, anybody that knows me, knows I am about as the anti racist person that you could ever imagine. I am a stone cold liberal to the nth degree, but I was talking about practicalities of picking a jury back then. And I still stand by that. I mean, if you're a prosecutor—alright, let me ask you this question—and you're trying a drug case—so to speak—and you're—in your defense—and the defendant is going to claim that the cops are lying. Okay. And you're the prosecutor now. What demographic group has had more exposure to police lying than minority communities? They have seen police lie and will believe police lie more than some white guy who lives in a rich area believes a police officer every—everything he says. And so as a prosecutor, you're trying to win the case. And that person is not going to be a person that’s going to be more questioning of your witnesses and you're given the opportunity through peremptory challenges to strike them. Why wouldn't you, you’d be a fool not to?

SEAN: Well, I guess I see the argument that—you know—you use your peremptory challenges to get the best jury you can to win. 

JACK MCMAHON: Right. 

SEAN: But doesn't eliminating a black juror, because you believe they might have certain biases against a police officer versus a white juror, in some way violate the equal protection clause of the 14th amendment? 

JACK MCMAHON: No, I don't think so. Not at all. Because it's not because of the color of their skin. It's because of their demographics and where—who they've dealt with. It's a societal demographic concept. It's just—it's just a fact of life. It's just like...

SEAN: But I think those facts of life and those societal demographical concepts all stem from the color of their skin.

JACK MCMAHON: Oh, well, that's a—that's—that—that may be a deeper issue that we can't deal with in jury selection. You're right. But the reality is—the reality is that—that—that's what the situation is so—so you're saying that if you're the prosecutor, you should say, “Oh, well, this guy will probably be worse for me, he probably believe those cops are lying, but I'm gonna take him because I want to pull the...” you know—come on. I mean, that's just not realistic. That's just—there isn't a prosecutor in the country that would do that. Say, “Well, I want to—I want to show my altruism and I'm gonna keep this guy on my jury who may disbelieve my essential witnesses because I want to be altruistic.” I mean, come on. That's just not the way life is.

JAD: Coming up, how to solve a problem like Batson? More Perfect will continue in a moment. 

[ARCHIVE CLIP: All yay, all yay, all yay...]
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JAD: This is More Perfect, mini-series about the Supreme Court. I’m Jad Abumrad. 

SEAN: I’m Sean Rameswaram.

JAD: Let’s just for a second explain how we got into this whole morass about racial bias and jury selection. 

SEAN: I think we should. 

JAD: It's because of a case that was in front of the Supreme Court this term. 

SEAN: Yep. 

[ARCHIVE CLIP: You'll hear argument first this morning in Case 148349. Foster versus Chapman.]

SEAN: So basic facts. This is a murder case in Georgia, a younger black man kills an elderly white woman. The prosecutors dismiss a bunch of black jurors, and the defense having this new Batson rule says, “Hold up, can't do that.” And the prosecutors give these race neutral reasons. And the judge says, “That looks good to me.” And then, years later, something sort of incredible happens through like one of those Freedom of Information Act type things. The defense actually gets to see the notes the prosecution had during the trial—the notes they kept during jury selection.

STEPHEN BRIGHT: This is one of those rare times when we pull back the curtain and we find out what the prosecutors were doing.

SEAN: This is lawyer Stephen Bright. He actually argued the Foster case in front of the Supreme Court late last year, and he says what you saw in these notes was that the prosecution—they literally wrote a little b next to the name of each and every black juror. 

STEPHEN BRIGHT: B one, B two, B three—highlighting all the blacks in green on the list of all the people summoned for jury duty. 

SEAN: It's like race—racial discrimination is really hard to prove. This is actual physical proof in a file in the state like this is the smoking gun we've been waiting for. 

JAD: So what are—what did the prosecutor—how did the prosecution argue this in front of the Supreme Court? 

SEAN: Prosecution was like, “You know what, actually,” once the notes were found, they said…

[ARCHIVE CLIP, Beth Burton: Foster is…]

SEAN: “...we were just writing those B's because we wanted to make sure we noticed the black jurors, we wanted to keep track of them.” 

[ARCHIVE CLIP, Beth Burton: The reasonable explanation in this case is four months prior to trial, defense counsel files a motion and says the strike of any black juror—we're filing a Batson challenge.

SEAN: That's the lawyer representing Georgia, Beth Burton. And she's saying, of course, we're going to notice race. This is the post-Batson world, and we're going to note race and we're going to write it down. 

[ARCHIVE CLIP, Beth Burton: I would be more surprised, quite frankly, if there wasn't some sort of highlighting or…] 

[ARCHIVE CLIP, Justice Breyer: In other words, the argument you're making here is that—it is that—the reason he highlighted all the black jurors in green...]

SEAN: He being the original prosecutor.

[ARCHIVE CLIP, Justice Breyer: ...and said black—about the black jurors—and did all these different things—was because he was preparing a defense in case of a Batson challenge.]

[ARCHIVE CLIP, Beth Burton: Correct.] 

[ARCHIVE CLIP, Justice Breyer: All right, now that's…]

SEAN: That’s Justice Briar asking, “Well, why didn't you make that argument like when the case was actually happening years and years ago?”

[ARCHIVE CLIP, Beth Burton: And it was not…]

[ARCHIVE CLIP, Justice Breyer: So if that had been his real reason, why isn't it a little surprising that he never thought of it? Or didn't tell anybody? Until you raise this argument in your main brief?]

[ARCHIVE CLIP, Beth Burton: And I would—I would say that's on state habeas counsel.]

SEAN: So the good news is that [MUSIC IN] in a seven to one decision, the Supreme Court agreed that this prosecutor’s reasons were utterly ridiculous.

[ARCHIVE CLIP, Justice Kagan: Well, isn't this—is—I'm just going to ask you—isn't this as clear a Batson violation as a court is ever going to see?]

SEAN: That's Justice Kagan.

[ARCHIVE CLIP, Beth Burton: I don't think it is…]

SEAN: The bad news is that this case was in front of the Supreme Court at all. It had to get appealed up to the highest court in the land, before someone said, “Oh, yeah, that's a Batson violation.” That's how hard it is. JAD: Yeah.

SEAN: And the Supreme Court, though it made a forceful decision—seven out of eight—they didn't make a new rule. They said, “This isn't how it works.”

JAD: They didn't try to offer up a Batson 2.0 or they didn't double down or throw it out or do some new rule?

SEAN: No, they said, “This is really wrong.” But they didn't go as far to say, “Well, clearly this doesn't work.” 

JAD: So we still got Batson. 

SEAN: Yeah. Still got Batson. 

JAD: So okay, if we want diverse juries, and we know that Batson doesn't really work, what do we do?

SEAN: So I asked everyone I talked to that question and got a lot of different answers. But this was the obvious one, and Nancy—Nancy Marder,—who's a professor of law.

NANCY MARDER: IIT, Chicago, Kent College of Law. 

SEAN: Starts us off. 

NANCY MARDER: What I'd like the court to do is eliminate peremptory challenges.

STEPHEN BRIGHT: It's a no brainer.

SEAN: Again, that Stephen Bright, he's a lawyer.

STEPHEN BRIGHT: We have to. 

JACK MCMAHON: I mean, it's like—it's like the Supreme Court gives you these rules of peremptory challenges to strike people and then says, “Well, wait a minute, don't just strike people,” you know, “we're going to look into all the ways that you strike the people.” Well then don't give them at all then for crying out loud. It's real simple.

SEAN: Even Jack McMahon, the guy from that training video, he was open to it. 

JACK MCMAHON: Take them away.

NANCY MARDER: We've had 30 years of experiment with Batson and it's not working. We now have to go the route that Justice Marshall suggested back in Batson. 

[ARCHIVE CLIP, Justice Marshall: This court has never stated and I dare not speak for the court.] 

[ARCHIVE CLIP: That’s a good constitutional rule, isn’t it?]

SEAN: So in the Batson decision, you've got Thurgood Marshall, like the most important attorney in the Civil Rights Movement turned the first black Supreme Court Justice. He in the same paragraph called the Batson decision, historic, and then said,

BRYAN STEVENSON: This isn't going to work. This decision isn't going to do anything. He was basically a fortune teller.

JAD: He said both those things in the same breath?

SEAN: In one paragraph, he started out going, “This decision today—historic.” By the end of the paragraph, “You're never going to fix this until you get rid of peremptory challenges.”

[ARCHIVE CLIP, Justice Marshall: We allotted nine peremptories to both sides.] 

SEAN: Just do away with peremptory strikes. 

[ARCHIVE CLIP, Justice Marshall: Would that violate the constitution?] 

[ARCHIVE CLIP: If both sides could exercise peremptory challenges?]

[ARCHIVE CLIP, Justice Marshall: If both sides denied peremptory challenge.] 

[ARCHIVE CLIP: No, sir, it would not violate the constitution.]

NANCY MARDER: He said, “As long as you have peremptory challenges, you will have discrimination.”

SEAN: But what surprised me most in reporting this story is that—like—I talked to people on the left side of the criminal justice system, on the right side of the criminal justice system, ACLU types, law professors, academics, conservative prosecutors, all of these people, when you say, “Guys, we got to get rid of peremptory challenges, right?” Almost every single one will say, [ARCHIVE CLIP: No.] 

[ARCHIVE CLIP: No.] 

[ARCHIVE CLIP: No.] 

[ARCHIVE CLIP: No.] 

[ARCHIVE CLIP: It’s kind of crucially—that’s a crucially important tool.]

[ARCHIVE CLIP: We need them.] 

[ARCHIVE CLIP: Crucially important.] 

David Niehaus: You know, it's an easy solution, just get rid of peremptories. 

ELIE MYSTAL: Nah, hell no.

SEAN: That's Elie Mystal, our legal editor, law professor Sun Wolf from Santa Clara University and lawyer David Niehaus again. And here's one of the arguments I heard, if you take these things away...

David Niehaus: All the decisions about striking jurors would be made by the judge on the question whether the juror could be fair and impartial. And for that to work, you have to have a fair judge. And there are an awful lot of judges who aren't fair.

SEAN: Here's another argument I heard from Jeffrey Robinson from the ACLU.

JEFF ROBINSON: And this is based on my experience of 34 years in the criminal justice system. 

SEAN: Jeff Robinson says if you can find some way to take race out of the equation, peremptories are super useful. And he told me about this one case...

JEFF ROBINSON: Very high profile homicide case in the state of Washington.

SEAN: This case was incredibly complicated and also potentially involved a coerced confession, by some undercover cops,

JEFF ROBINSON: And there's a police officer on the jury panel. He says, “I can be fair, I know the police officers that investigated this case, I've worked with them before. I think they're really good people. But don't worry, I can be fair.” Everything about his background was saying, I do not want this man to serve on this jury. But he was saying, “I can be fair.” I could not exclude him on a challenge for cause. 

SEAN: Why not? 

JEFF ROBINSON: Because he said he could be fair, the fact that he's a police officer doesn't mean he can't be fair.

SEAN: But isn't saying I know some of these people involved in this case enough to get him dismissed for cause?

JEFF ROBINSON: It's enough to get more questioning. “But how well do you know them?” “Not very well.”

SEAN: So you're saying in that case, if you said, “Okay, Judge, I'd like to dismiss juror 17 for cause.”

JEFF ROBINSON: For cause, the judge would say, “There's not a record for cause.” I don't think any judge in this country would dismiss that juror for cause. 

SEAN: Wow.

JEFF ROBINSON: And so a peremptory challenge is important.

SEAN: So I've watched more jury selection videos on YouTube than any person ever should. And it's this amazing thing where you see these people—they're not necessarily used to being in a courtroom. They're certainly not used to being grilled in public by a bunch of people in suits. They get up there to the jury panel, and they get asked these questions. [ARCHIVE CLIP: Does everyone agree that bias doesn't have any place in the trial?] 

SEAN: Over and over again. 

[ARCHIVE CLIP: Can you be fair and impartial?] 

[ARCHIVE CLIP: Yes, sir.] 

[ARCHIVE CLIP: You're like a blank slate. You just got to listen to the evidence. Can you do all that?] 

[ARCHIVE CLIP: Yes, I could.] 

[ARCHIVE CLIP: Okay.]

SEAN: Nobody says no. Everyone feels like, “Yes, I can be fair.” 

[ARCHIVE CLIP: And you know, this is the time to tell us—that's why we're asking you this.]

[ARCHIVE CLIP: I'm thinking I could.] 

[ARCHIVE CLIP: Okay.]

SEAN: I can be totally unbiased. And I think some of them believe that they can actually do this nearly impossible task. And others. They know they can't. But they might say yes, anyway,

[ARCHIVE CLIP: Anyone who tries a case—believe me—knows that biased jurors come in, they don't reveal things. They lie about things.] 

[ARCHIVE CLIP: There's people that when you're questioning them in a jury that you know they're lying to you. They're either trying to get on the jury or trying to get off the jury.]

[ARCHIVE CLIP: Bias people are being allowed to serve. So any tool that can help reduce the number of bias jurors on juries is essential to justice.]

SEAN: So yeah, if you've got a really crappy outlook on jurors and humans, then maybe you need more peremptory challenges. But the way Jeffrey Robinson put it to me was that if you're using peremptory challenges the right way, it forces you to be like equal opportunity suspicious—suspicious of everyone. And that's the only way to be fair.

JEFF ROBINSON: My parents were both active in the Civil Rights Movement in Memphis, Tennessee, as active as two people you could ever want to meet, both black. I would never let my mother sit on a criminal defense jury, because my mother's view about black defendants was, “You're the reason I have to lock the door in my neighborhood. You're the reason that I get disrespected when I go out into the community, and I'm going to take it out on you.” My father's position would be, “I wouldn't believe a police officer if he told me it was raining and the water was coming down on my head.” And so what this is about is actually putting into effect what the rules say. Talk to jurors and find out what they think.

SEAN: But what about Thurgood Marshall’s idea that—you know—if you have peremptory challenges—if you give people a way to discriminate, they will discriminate? 

JEFF ROBINSON: Well, I was born in 1956. And so in 1954, Thurgood Marshall argued Brown versus the Board of Education, which had a significant impact on my life. Thurgood Marshall was someone that I have respected and someone I have admired virtually my entire life, but I can't agree with him that I want all peremptory challenges eliminated.

SEAN: And why do you think Thurgood Marshall—Justice Marshall—went straight to no peremptories.

JEFF ROBINSON: I think Justice Marshall concluded that he did not have faith in America to be able to make these kinds of decisions. And I understand why he concluded that.

SEAN: And you do? You have that faith?

JEFF ROBINSON: I still do. And how long that will last? I don't know. But I still do right now.

[MUSIC IN]

SEAN: Robinson says that to give up on these peremptories is—is like giving up on who we might be one day because of who we are right now.

JEFF ROBINSON: That's conceding that we are so divided by race that we will never be able to try and fix it. And I'm not prepared to concede that.

SEAN: Okay, one last thing from my trip to Louisville. 

JAMES BATSON: Joe!

JOE GUTTMAN: Ey, what’s up James?

JAMES BATSON: All right.

SEAN: Something that blew me away.

JOE GUTTMAN: I'm Joe Guttman. I'm a teacher at Central High School, also an attorney at law.

JAMES BATSON: I’m James Batson, truck driver and construction worker, amongst other things.

JOE GUTTMAN: I probably should add that I'm the former prosecutor of Mr. Patterson's cases.

SEAN: Joe Guttman and James Batson, those two people whose conflict in a courtroom back in 1983 gave us the Batson rule. They are now in 2016, friends.

[MUSIC IN]

JAMES BATSON: I talk to him all time. Yeah, still—yeah, we're friends now.

SEAN: How often is it that a prosecutor becomes friends with someone he helped convict?

JOE GUTTMAN: Not—not often.

JAMES BATSON: I mean, he retired from prosecuting. 

JOE GUTTMAN: I left in 2001, had seen too many awful things. 

SEAN: To make a long story short. 

JOE GUTTMAN: It was time for me to do something else.

SEAN: Joe Guttman retires from being a prosecutor and starts teaching at a high school in Louisville that’s 80% Black.

LOTORY JACKSON: We're doing—we're opposing drug testing because we're on the student side. My name is Lotory Jackson. Okay, well, drug testing in schools seems like a good idea. But in actuality, it isn’t...

SEAN: So the day I visited Joe Guttman’s classroom, which is like a full on mock courtroom in a classroom. He was doing these mock trials with his students. 

LOTORY JACKSON: So there's many reasons why drug testing should not be allowed in schools and public schools because there's no funding for it.

JOE GUTTMAN: When it's all said and done. I would prefer to be known more for the accomplishments in this classroom than for Batson.

[Classroom chatter]

SEAN: As for James, after the Batson case—eventually...

JAMES BATSON: I retired from illegal activities... 

SEAN: And he wrote a book. 

JAMES BATSON: Called War on Jails. Concept is me trying to get people to stop doing crime. 

SEAN: And the book’s actually how these two sort of met up again. One day a few years ago, James came to Joe's school to give him a copy. 

JOE GUTTMAN: He gave me a copy of his book and asked me if I'd look over it.

JAMES BATSON: I wanted his opinion on it. 

JOE GUTTMAN: I read the book that night, actually.

JAMES BATSON: And he got 50 books into the school system here in Jefferson County now. So what happened in the past is in the past. You know—30 years ago, he did what he did, I did what I did. Let it go.

SEAN: As far as the legacy of the Batson challenge goes, it's really interesting to hear them talk about it, especially because in the eyes of a lot of people who know these issues. Joe was a villain.

JOE GUTTMAN: That was always the painful part about the decision in Batson—is the label of being a racist prosecutor. 

SEAN: And what did that mean to you?

JOE GUTTMAN: Well, that was a horrible label. Yeah, I mean, it was a horrible label, but Batson started a needed discussion and a needed change on jury selection in America. You know, maybe I was just there, whether it be fate or whatever that this was the start of change.

SEAN: So I mean, take it for what it's worth, but maybe if Robinson's right we can look at all this and have a little tiny bit of hope. I think we're fucked. But maybe not.

JAD: Sean Rameswaram. More Perfect, actually, Sean came up with the name More Perfect. More Perfect is produced by me, Jad Abumrad, Suzie Lechtenberg, Tobin Low, Kelsey Padgett, and Andy Mills. With Soren Wheeler, Elie Mystal, David Herman, Alex Overington, Karen Duffin, Sean Rameswaram, Catherine Wells, Barry Finkel and Michelle Harris. Special thanks to Anel Klein, Brian Orr, Julie Toll, Xi Charles and Sarah LaSpader. Supreme Court audio is from Oyez, a free law project in collaboration with the Legal Information Institute at Cornell. More Perfect is funded in part by the William and Flora Hewlett Foundation, the Charles Evans Hughes Memorial Foundation and the Joyce Foundation.

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