From Melbourne to Houston (and Back): The Enduring Effects of an Internship

Rebecca Liley

Time spent in a US capital defence office may have more influence over an Australian legal career or degree than first imagined.  Thankfully, the knowledge I acquired from my time at the Gulf Region Advocacy Center (GRACE) in Houston, Texas has neither been left behind with the SUV’s nor forgotten.  Lessons learnt on long car trips beyond Houston’s city limits, into rural Texan courthouses are now helping to shape my legal endeavours in Melbourne.

A trial that I worked on whilst in Harris County has directly influenced the topic of my advanced legal research essay this year.  Over two semesters I intend to research the nature of the peremptory challenge in the US jury trial system, focusing on the way in which the challenge may be utilised to exercise racially discriminatory jury selection. This topic was inspired by the trial of a young black male defendant named Edward, where the prosecuting attorney did her best to strike the large majority of African Americans from the pool of potential jurors.

A three step process now exists regulating racial discrimination within the jury selection process.  An attorney may now raise a claim of racial discrimination during the voir dire process, otherwise known as a Batson claim (Batson v Kentucky, 476 US 79 (1986)).  In response, the challenging attorney must provide a ‘racially neutral explanation’ for the strike. The court must then decide whether the challenge is justified.  It is with this ‘racially neutral explanation’ where my interest bordering on indignation lies.  Batson’s progeny has taken the judgment down various, mostly ineffectual routes. The nature of the peremptory challenge is such that more often than not, judgments made in regard to a potential juror are based on skeletal demographic information and stereotype.  Whilst admirable in its aims to regulate a system that facilitates and almost requires superficial discrimination, the Batson judgment effectually fell into the laps of lower courts that were uninterested in reform even, and perhaps especially, in respect to race.

There have been truly gob-smacking judgments handed down in that name of circumventing the Batson requirement.  A personal favourite is that of Purkett v Elem, 514 US 765 (1995), which allows for the explanation to be racially neutral, yet does not require that it be plausible, reasonable or supported by the record.  It is no wonder that US academics such as Cavise have said ‘Only the most overtly discriminatory or impolitic lawyer can be caught in Batson’s toothless bite and, even then, the wound would only be superficial’ (Leonard L Cavise, ‘The Batson Doctrine: The Supreme Court’s Utter Failure to Meet the Challenge of Discrimination in Jury Selection (1999) Wis. L. Rev 501, 501).

It was quite possibly this dissatisfaction that eventually led to the Supreme Court's decision in the case of Miller-El v Drekte, 545 US 231, 243 (2005).  In 1986, an African American male named Thomas Miller-El was arrested and tried for capital murder in Dallas, Texas.  At the time, it was the general policy of the Dallas County District Attorney’s Office to exclude black venire members from serving on juries, regardless of the colour of the defendant.  One of the more outstanding ways in which this policy was implemented was the official production of an instruction manual for District Attorneys detailing methods for striking blacks from jury pools (Miller-El at 251).  After the DA used the majority of his strikes and highly questionable tactics to eradicate blacks from the jury pool, one African American served on Miller-El’s original jury.  Despite this, it took 17 years of largely unsuccessful and protracted litigation, including 8 different legal proceedings, 8 separate judicial opinions and 23 judges (Brian W Stoltz, ‘Rethinking the Peremptory Challenge: Letting Lawyers Enforce the Principles of Batson’ (2007) 85(4)  Texas Law Review 1031) for the Supreme Court to eventually award the defendant a new trial based on the racial discrimination at his original hearing.  The court also went further to outline stricter guidelines with which to enforce the Batson requirement on lower courts.  Attorneys in Texan Reprieve offices were involved in obtaining Miller-El a new trial.

Despite recent jurisprudential developments, it is an unfortunate truth that racial discrimination may still loom large over the US voir dire process.  In his trial last year, Edward saw the DA provide ‘racially neutral explanations’ such as “I just don’t like postal workers” (when it is commonly known that the majority of postal workers in Texas are black) and “He just seemed too keen to not let an innocent man go to jail.”  These were accepted unequivocally by the judge and, in the end, one African American served on the jury.  In juror interviews after the trial, other non-black jurors would describe this single black man as “fine” and “not like the others”.  It is hard to believe that racial prejudice did not play a role in the trial.  Outstanding black character witnesses called by the defence were categorically ignored.  In relation to the fact that many people of the defendant’s and victim’s community held African American monikers, the white jury foremen stated jovially “I’m just surprised that y’all could keep up with their names”.   This comment was directly preceded by him handing down a guilty verdict.  

I will spend a significant part of my life in the law library this year, researching the interesting creature that is the American peremptory challenge.  Outside of the ‘hallowed halls’, I am happy to serve on the ReprieveAustralia Executive. I am loathe to suggest that one minority may simply replace another, but can say that an interest in race relations and the law that developed in Texas now drives my volunteer work with Indigenous criminal defence.  I hope to follow the lead of other returned Reprieve interns and undertake a further internship in the US upon graduation. 

 

Client names have been changed for the sake of confidentiality.