Book Review, Impartial Justice by Eric T. Kasper
The Champion
November, 2016
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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