Student Review:

In this article, Muller discusses the inconsistent views of the Supreme Court regarding jury representation.  His analysis focuses around Batson v. Kentucky which established that the Equal Protection Clause requires that prosecutors may not use peremptory challenges on the basis of race.  Muller examines the rationale of the Justices in support and against the Batson decision and determines that each of these viewpoints contain fundamental paradoxes that need to be corrected.
     Muller first asks the question if the race and gender of a prospective juror creates inferences about their views or beliefs.  The majority opinion in Batson suggested that the Court does not believe that race and gender rationally predicts a juror's perspective.  However, the dissenters of Baxton and its progeny demonstrate that some of the Justices do believe that different groups bring unique perspectives into the jury.  Social science data and public opinion would seem to favor this view.  Muller notes that the Justices are currently divided on whether gender and race affiliations guide a juror's perspective.
     Next, Muller discusses the principles of harmless error and automatic reversal in conjunction with discrimination in jury selection.  Originally all errors constituted an automatic reversal of the defendant's conviction.  Within time, the harmless error rule developed in which errors only merited reversal if they undermined the reliability of the verdict.  Structural constitutional errors which made a verdict inaccurate were the only errors that constituted automatic reversal.  The Batson Court did not directly address whether the remedy for discrimination in jury selection should trigger automatic reversal, but has applied this remedy in each case.  Muller argues that under the rationale of the Batson supporters, automatic reversal would not present the appropriate remedy no matter who is the possible victim.
     Three possible victims of jury discrimination could be the defendant, the excluded juror, or the trial itself.  Muller argues that while stigmatic injury to a defendant is harmful, it is not deterred by reversal.  Likewise, reversal is not an appropriate remedy for jurors excluded from participation in the criminal justice system.  Muller notes that the real function of reversal is to police the reliability of the verdict.  Thus, the victim would have to be the fairness of the trial to require such a remedy.  However, the Batson supporters are reluctant to state that a fair trial is destroyed due to a discriminatory jury selection because the supporters believe that race and gender does not create inferences to a juror's perspective. The Batson supporters cannot logically establish jury discrimination as a structural error because the Justices do not believe group affiliations affect the result of the trial.  Such a paradox is at the heart of the Batson Court's reasoning.
     Muller suggests that the proponents of Batson should resolve this paradox by abandoning their resistance to the opinion that race and gender affiliations influence jury decisions.  With this change, they can easily establish that jury discrimination indeed requires per se reversal.  Muller also examines the inconsistencies in the dissenters of Batson.  While this group recognizes the value of community representation in regards to jury size, they fail to apply the same rationale to jury discrimination cases.  Thus, Muller urges the Court to find that impartiality and community representation are vital to the jury system.  Finally, Muller urges both sides of Batson to reevaluate their opinion under the Sixth Amendment guarantee rather than the Equal Protection Clause.  Both the supporters and critics of Batson need to remove the inconsistencies from their positions.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999