New Constitutional Right: Trial By Jury of Your Peers Members Of Your Own Race

Critics laughed at the excellent action fantasy National Treasure for postulating a secret map written in invisible ink on the back of the Declaration of Indpendence.

That conceit didn't faze me at all. After all, we have fifty years of intrepid Indiana Jones-ish judges -- Raiders of the Lost Clauses -- finding all sorts of secret messages and invisible codes in the Constitution of the United States.

Yesterday, America moved one baby step closer to apartheid, a society in which racial groups are officially considered unequal and consigned to their own separate spheres under the law. California's supreme court granted a temporary stay in a murder trial about to begin, on the unprecedented ground that the county where the crime took place and the trial was to be held does not have enough residents of the same color as the defendant, who is black. In other words, the underlying theory is that a defendant may be entitled to a jury of his or her own race, at least in some as yet undetermined minimal percentage. No showing is exclusion of jurors on the ground of race need be shown if a change of venue is granted. Mere demography could become a criterion in presumed prejudice.

Since we are guaranteed a jury of our peers, if the stay is upheld and a change of venue required by the California supremes, the justices would in effect be ruling that being of a different race can make one not a peer and unable to judge fairly in the eyes of the law. From this sort of ruling one can logically derive many corollaries establishing in law the principle that we are not in fact all equal irrespective of race.

You might wonder, "Wait -- don't courts already overturn convictions for racially-imbalanced juries?" Well, not quite. Since the 80s, I think, they can and sometimes do reverse convictions in cases where a prosecutor has used his juror challenges deliberately to cull potential jurors of a certain race from the jury. (I'm not sure if an acquittal can be overturned due to the defense attorneys doing the same thing, but in reverse-- probably not.)

But under those rules, a prosecutor needs to be found as having engaged in a deliberate effort to craft a jury of specific racial make-up (or if not deliberately doing so, coincidentally just happening to remove certain jurors to create a jury of a certain racial mix). In other words, a conviction can be overturned if the prosecutor is found to have shaped the jury through his challenges to acheive a certain racial mix.

This review by the California Supreme Court goes quite a bit further than that. They're deciding whether or not a jury which perfectly-randomly turns out to have not enough (or too many, I suppose) minorities can judge the guilt of a minority. No improper shaping of a jury's racial mix -- just if too many White Devils wind up on the jury (say, because you committed your murder in a nearly all-white venue), then no conviction can be had. Prosecutors will be forced to change venue themselves out of the natural venue (where the crime occurred) to a venue having more minorities. Or, perhaps, begin using their challenges to strike non-minority jurors in an effort to get that "constitutionally required" minimum number of minority jurors.

Racially shaping a jury, I guess, is secretly mandated by the Constitution in order to ensure more minorities on a jury, it now seems, even though just twenty years ago the Constitution was found to have a secret code prohibiting such racial shaping.

See what I mean about National Treasure? So what if the Declaration of Indpendence contained a mere series of coded numbers on its back. The Constitution apparently has thousands of secret messages in it, only a thousand or so currently discovered. With all these secret messages and invisible-ink codes, can there be any doubt our living Consitution has the potential to grow throughout all time?

Question: The next group of "short-dicked white boys" accused by a mentally unstable stripper of rape will be entitled to have a jury consisting of at least 75% white males, correct?

PS: As a technical matter, I'm sure the judges are claiming the California, not the US, constitution contains these secret codes. This is a dodge employed by liberal judges to avoid having their strained, hyperliberal reading of state constitutions overturned on appeal by the Supreme Court. Because another secret code of the US Constitution says, in practical effect, decisions based on state constitutions can be read as liberal as state judges like, and there can be no appeal for very liberal readings.

On the other hand, if a state consitution is interpreted too conservatively, and hence conflicts with the minimum-acceptable-level of liberality imposed by the US Constitution, it can and will be overturned on appeal.

In other words, a state constitution can't be read as providing fewer liberal "protections" than the US constitution, but it definitely can be (and often is) read as guarateening greater liberal "protections."

Even if this is, as I assume, all based on the California Constitution -- I'm sure the California Constitution contains as many actual textual guarantees of minimum minority representation of a jury as the US Consitution does, i.e., none at all.

By the way, Lifson calls the legalities of the case "complicated," because the man charged with murder didn't actually kill anyone; he's being charged, if I'm getting his botched quote right, under California's "provocative act" murder rule, which holds that if one of your fellow criminals is killed in the act of your group effort in a major crime, you're responsible for his death as if you actually killed him yourself.

Actually, this isn't very complictated or novel at all; it's thoroughly routine and noncontroversial. It seems to be just a different term for (with perhaps somewhat different particulars) for the standard-issue felony murder rule. Felony murder is a doctrine stating, basically, that if anyone should be killed in the course of your commission of a defined majory felony (armed robbery, etc.), including even deaths which would otherwise be considered noncriminal (i.e., a security guard killing your confederate in attempting to lawfully repel him), you can get slapped with a felony murder charge -- your felony led to a homicide that would not have otherwise occurred, and thus it's a kind of murder.

So if, like I used to do, you're watching a crime show and keep hearing "felony murder" and wonder "what the heck sort of murder wouldn't be a felony?," that's what it means. It's called "felony murder" because it just isn't what is usually thought of as straight-up, "normal" murder (i.e., you commit the act that kills with the intent of taking a life).

Anyway, that complication isn't the cause for the California Supreme Court's stay. That's just run-of-the-mill basic law that's been on the books for decades, if not for centuries.

Thanks to Larwyn.

posted by Ace at 08:18 PM

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