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The Use of Peremptory Challenges in Capital Murder Trials: a Legal and Empirical Analysis*

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The Use of Peremptory Challenges in Capital Murder Trials: a Legal and Empirical Analysis* ARTICLE THE USE OF PEREMPTORY CHALLENGES IN CAPITAL MURDER TRIALS: A LEGAL AND EMPIRICAL ANALYSIS* David C. Baldu;" George WoodworthZ' David Zuckenan... Neil Alan Weiner. BarbaraBroffit .. This Article was presented as part of the University of PennsylvaniaJournal of Constitu- tional Law Symposium on Race, Crime, and the Constitution.January, 2000. The authors gratefully acknowledge the expert research assistance of lowa law students Ben- jamin Cutler, Timothy Furrow, Catherine Grosso, and Glen Houghtailing, and the many stu- dents who worked on the project in Philadelphia, particularly law interns Jessica R. Brown. Francis A. Carmen, Laura Davis, Mary H. Grabish, Andrea B. Koplove, Mary Ellen N. Murphy, Cindene L. Pezzell, April N. Plana, Will W. Sachse, Sierra L Thomas, and Kathleen P. Wolfe, and college interns ZoE E. Freeman, Jonathon Gross, David W. Pantalone, Amy Welton. and Peter Williams. Joseph B. Tye Professor, College of Law, University of Iow-a. ". Professor, Statistics and Actuarial Science, University of Iowa. Assistant Defender, Defender Association of Philadelphia. Senior Research Associate, Center for the Study of Youth Polic%, School of Social Work. University of Pennsylvania. Research Associate, College of Law. University of lowa. JOURNAL OF CONSTITUIONAL LAW [Vol. 3:1 ARTICLE 1. INTRODUCTION ...................................................................10 II. VOIR DIRE AND THE PEREMPTORY CHALLENGE: A REVIEW OF THE LITERATURE ...........................................10 A. An Overview of Voir Dire ...................................... 10 1. The Basesfor Peremptory Challenges ................. 14 2. The Use of Peremptory Challenges....................... 22 3. The Legality of Race- and Gender-Based Peremptory Challenges....................................... 29 4. Academic and ProfessionalCritique of the Effectiveness of Batson and Its Progeny ............. 34 5. Proposalsfor Reform ........................................ 36 B. Voir Dire and the Peremptory Challenge in Philadelphia Capital Cases .................................. 40 1. PhiladelphiaVoir Dire Practice.......................... 40 2. The McMahon Tape .........................................41 III. THE SETTING AND RESEARCH QUESTIONS ......................... 43 IV. METHODOLOGY, RESEARCH DESIGN, AND MEASURES ......46 A. The Universe and Sample .................................... 46 B. Data Sources ..........................................................47 C. Measures and Analytic Methods ........................... 48 V. DETERMINANTS OF COMMONWEALTH AND DEFENSE COUNSEL PEREMPTORY STRIKES: MIRROR IMAGES OF "GOOD" AND "BAD" JURORS .............................................. 51 A. An Overview ..........................................................51 B. Unadjusted Race, Gender, Age, and Neighborhood Effects ...........................................52 C. Adjusted Race and Gender Effects: Part I (Crosstabular Analysis) ............................... 55 1. The Impact of Defendant and Victim Race on PeremptoryStrike Rates..................................... 55 2. Race and Gender DisparitiesEstimated with ControlsforAge, Race, and Gender.................... 60 3. ProsecutorEffects .............................................60 4. The Prime Strike Targets of Prosecutors and Defense Counsel............................................... 61 D. Adjusted Race and Gender Effects: Part II (Logistic Multiple Regression Analyses) .......65 VI. THE IMPACT OF THE SUPREME COURT'S BAN ON THE USE OF RACE AND GENDER AS A BASIS FOR PEREMPTORIES ......73 A The Data Suggest a Modest Impact of Batson and McCollum ..............................................73 Feb. 2001] USE OF PEREMPTORY CtL4E1N.VGE B. Possible Explanations for Non-Compliance by Prosecutors and Defense Counsel ....................... 77 1. The Perceived Risk ofJudicialSanction or CorrectiveAction Against the Discrininatorz Use ofPeremptories ........................................ 77 2. The Perceived Importance of Race and Gender Discriminationin the Use of Peremptories....... 84 VII. THE COMPARATIVE EFFECTIVENESS OF PROSECUTORS AND DEFENSE COUNSEL IN THE USE OF PEREMPTORIES ..... 91 A. The "Canceling Out" Hypothesis ........................ 96 B. The Comparative Effectiveness of Prosecutors and Defense Counsel in Target Group Selection .... 102 C. The Comparative Effectiveness of Prosecutors and Defense Counsel in Influencing Sentencing Outcomes: The Outcome Enhancement Model .... 103 1. Strike Effort andJuy Racial Composition .............. 103 2. Strike Effort and Sentencing Results ....................... 106 D. TheJury of One's Peers Issue ................................... 112 VIII. THE LIKELY IMPACT OF REFORMS INTHE USE OF PEREMPTORY CHALLENGES ..................................................... 112 IX. SUMMARY OF FINDINGS AND CONCLUSIONS ............................ 121 A. Peremptory Strike Patterns ....................................... 121 B. The Impact of United States Supreme Court Decisions on the Discriminatory Use of Perem ptories ............................................................. 123 C. The Impact of the Race and Gender Composition ofJuries on Penalty Trial Outcomes ........................ 124 D. The "Canceling Out" Hypothesis and the Comparative Effectiveness of the Commonwealth and Defense Counsel in Their Use of Peremptory Challenges ................................................................. 125 E. Effects on the Defendant's Chances of Drawing a Jury of H is Peers ........................................................ 127 F. Conclusions ............................................................... 127 JOURNAL OF CONSTITUTrIONAL LAW [Vol. 3:1 APPENDICES APPENDIX A: METHODOLOGY ............................................................ 131 APPENDIX B: RACE, SEX, AND AGE DISPARITIES IN PROSECUTORIAL OR DEFENSE COUNSEL USE OF PEREMPTORY CHALLENGES WITH ALTERNATIVE CONTROLS FOR RACE, SEX, OR AGE ....................... 167 APPENDIX C: RACE AND GENDER EFFECTS IN THE EXERCISE OF PEREMPTORY CHALLENGES, BY INDIVIDUAL PROSECUTORS LISTED BY RACE, ETHNICITY, AND GENDER OF THE PROSECUTOR ............ 168 APPENDIX D: RACE OF VENIRE PERSON AND NEIGHBORHOOD EFFECTS, CONTROLLING FOR THE TABLE 7 VARIABLES AND THE DEFENDANT/VICTIM RACIAL COMBINATIONS ....................... 169 APPENDIX E: ALTERNATIVE PEREMPTORY STRIKE SYSTEMS VERSUS THE ACTUAL PHILADELPHIA SYSTEM: ESTIMATED JURY REPRESENTATION RATES OF TARGET GROUPS .............................. 170 FIGURES FIGURE 1: VOIR DIRE PEREMPTORY CHALLENGE PROCESS: 317 PHILADELPHIA CAPITALJURY TRIALS 1981-1997 ...................... 39 FIGURE 2: THE PEREMPTORY CHALLENGE IN CAPITAL TRIALS: PHILADELPHIA 1981-1997 ......................................................... 44 FIGURE 3: PROSECUTION AND DEFENSE COUNSEL STRIKE RATES AGAINST BLACK (PANEL A) AND NON-BLACK (PANEL B) VENIRE MEMBERS CONTROLLING THE RACE OF THE DEFENDANT AND VICTIM: PHILADELPHIA 1981-1997 ............... 57 FIGURE 4: PROSECUTION STRIKE RATES AGAINST BLACK AND FEMALE VENIRE MEMBERS: PHILADELPHIA CAPITAL TRIALS ....... 75 FIGURE 5: DEFENSE COUNSEL STRIKE RATES AGAINST NON-BLACK AND MALE VENIRE MEMBERS: PHILADELPHIA CAPITAL TRIALS ............................................... 76 FIGURE 6: THE IMPACT OFJURY RACIAL COMPOSITION ON PENALTY TRIAL DEATH SENTENCING OUTCOMES CONTROLLING FOR DEFENDANT CULPABILITY AND RACE: PHILADELPHIA 1981-1997 .........................................................85 FIGURE 7: RACE OF DEFENDANT DISPARITIES IN CAPITAL SENTENCING OUTCOMES, CONTROLLING FOR THE RACIAL COMPOSITION OF THEJURY PHILADELPHIA 1981-1997 ................................... 86 FIGURE 8: THE IMPACT OFJURY RACIAL COMPOSITION ON PENALTY TRIAL DEATH SENTENCING OUTCOMES CONTROLLING FOR THE DEFENDANT/VICTIM RACIAL COMBINATION: PHILADELPHIA 1981-1997 ......................................................... 89 Feb. 20011 USE OFPERF.%fPTORY CJiAId.LVGES FIGURE 9: JURY PENALTYTRIAL DEATH SENTENCING OUTCOMES AND DISPARITIES CONTROLLING FOR THE RACIAL CoMPosmION OF THE JURYAND DEFENDANT/VICTIM RACIAL COMBINATION: PHILADELPHIA 1981-1997 ......................................................... 90 FIGURE 10: DEATH SENTENCING OurCOMES ASSOCIATED WITH SUBGROUPS OFJURORS DEFINED BY RACE, AGE, AND SEX ...... 92 FIGURE 11: THE IMPACT ONJURY COMPOSITION OF VARING DEGREES OF PEREMPTORY STRIKE EFFORT AGAINST BLACK AND NON-BLACKVENIRE MEMBERS ............................................... 105 FIGURE 12: THE IMPACT OF PROSECUTORIAL STRIKE RATE EFFORT AGAINST BLACKVENIRE MEMBERS WITH EFFORT MEASURED IN TERMS OF STRIKE RATES ABOVE AND BELOW THE MEDLN LEVEL FORALL CASES: PHILADELPHIA 1981-1997 .................................. 108 FIGURE 13: RACE OF DEFENDANT DISPARITIES IN CAPITAL SENTENCING, CONTROLLING FOR THE PROSECUTOR'S EFFORT IN STRIKING BLACK VENIRE MEMBERS: PHILADELPHIA 1981-1997 ............................................................. 109 FIGURE 14: THE IMPACT OF DEFENSE COUNSEL STRIKE EFFORT AGAINST NON-BLACKVENIRE MEMBERS WITH EFFORT MEASURED IN TERMS OF DEFENSE CASE STRIKE RATES ABOVE .A.ND BELOW THE MEDIAN LEVEL FOR ALL CASES: PHILADELPHIA 1981-1997 ......... 110 FIGURE 15: RACE OF DEFENDANT DISPARITIES IN CAPITAL SENTENCING OUTCOMES, CONTROLLING FOR DEFENSE COUNSEL EFFORT IN STRIKING NON-BLACK VENIRE MEMBERS, PHILADELPHIA 1981-1997 ............................................ 111 FIGURE 16: JURYRACIAL COMPOSITION DOCUMENTED IN PHILADELPHIA CASES AND ESTIMATED IN FOUR HYPOTHETICAL SYSTEMS, CONTROLLING FOR THE PEREMPTORY STRIKE EFFORT BY PROSECUTORS
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