Book Review, Impartial Justice by Eric T. Kasper
Impartial Justice is chock full of analysis about what constitutes a neutral, impartial, and unbiased decisionmaker. Part one focuses on juries, part two judges, and part three noncourt settings. Part one and two are of particular interest to the criminal justice practitioner and important in light of recent action by the U.S. Supreme Court.
Kasper invokes Robert H. Jackson, a U.S. Supreme Court justice who took leave from the Court to prosecute war criminals at Nuremburg. Kasper quotes Jackson to bring focus to the fundamental aspect of the book, the “right to fair trial is the right that stands guardian over all other rights.”
In June of this year, the U.S. Supreme Court ruled in Williams v. Pennsylvania that a judge who had “significant, personal involvement” in a case during his previous role as a prosecutor must recuse himself when the case comes before the bench. Former Pennsylvania Supreme Court Chief Justice Ronald Castille refused to recuse himself in a case involving a death row inmate’s appeal where Castille had been in charge of the prosecution years earlier while serving as district attorney. Castille ultimately joined the opinion of the state supreme court, even writing separately to make clear what he thought of the lower court’s ruling. In an opinion laced with withering criticism, Castille suggested the trial court had become “unmoored from its lawful duty.” He accused the defendant’s lawyers of sidestepping procedural rules and “pursuing an obstructionist anti-death penalty agenda.” A defiant Castille talked to the Associated Press before the U.S. Supreme Court argument: “In Pennsylvania, we leave it up to the judge’s personal conscience. … I’ve always been confident that I can be fair and impartial.” The Supreme Court disagreed.
Kasper also explores juror bias. In doing so, he writes about Batson v. Kentucky, the 1986 decision in which the U.S. Supreme Court ruled that race-based discrimination in jury selection was unconstitutional and required lawyers accused of it to provide a nondiscriminatory explanation. The landmark decision in Batson was intended to eliminate racial bias in the use of peremptory challenges in jury selection. “Hopefully, most prosecutors (and lawyers generally) are beyond the crabbed notions of racial stereotypes,” Kasper writes.
The 2016 Supreme Court decision in Foster v. Chatman suggests that Kasper’s conclusion is a bit premature. The high court is still sorting out the parameters of Batson. The Court ruled in favor of a black Georgia death row inmate, Timothy Foster, convicted in 1987 of murdering an elderly white woman. The Court found that prosecutors unlawfully excluded black potential jurors when selecting an all-white jury. Chief Justice Roberts wrote in Foster v. Chatman, “We are left with the firm conviction that the strikes (of two of the African American potential jurors) were motivated in substantial part by discriminatory intent.” Unfortunately, evidence of the sort that surfaced in Foster is rare, and the Batson decision remains easy to evade.
Kapser also spends some time exploring due process under court supervision, in jail, and before parole boards. Those issues are no better understood after Kasper’s treatment, but generally Impartial Justice is timely and informative. As a lawyer and municipal judge, Kasper’s erudite take on timeless issues of fairness and impartiality has limitations, as he writes that “being a lawyer judge does not wipe one clean of any and all biases … or [require one] be ethical enough to be fair and impartial.
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