• Transcript
  • Show Notes

In this episode of Third Degree, Elie Honig and Alabama Law student Kyra Perkins discuss the state of HR-1 (the sweeping voting rights bill currently before the Senate), the pros and cons of abolishing the filibuster, and the latest in the Derek Chauvin trial jury selection process. 

Join Elie every Monday and Wednesday on Third Degree for a discussion of the urgent legal news making the headlines. Third Degree takes on a bit of a different flavor on Fridays, when Elie speaks with a rotating slate of America’s most impressive law school students, exclusively for members of CAFE Insider. 

Third Degree is produced by CAFE Studios. 

Executive Producer: Tamara Sepper; Senior Editorial Producer: Adam Waller; Technical Director: David Tatasciore; Audio and Music Producer: Nat Weiner; Editorial Producers: Noa Azulai, Jake Kaplan, Sam Ozer-Staton.

REFERENCES AND SUPPLEMENTAL MATERIALS:

  • For The People Act of 2021, Congress.gov
  • Ella Nilsen, “House Democrats’ massive voting rights bill, explained,” Vox, 3/3/2021
  • “The Myth of Voter Fraud,” Brennan Center
  • Molly E. Reynolds, “What is the Senate filibuster, and what would it take to eliminate it?” Brookings Institution, 9/9/2020
  • Paul Walsh, “$27M settlement coming amid Derek Chauvin trial jury selection called ‘unfortunate’ by court; day ends with 9 jurors so far,” Star Tribune, 3/15/2021
  • Batson challenge, Legal Information Institute

*Published 3/19/2021

Elie Honig:

From CAFE, this is Third Degree. I’m Elie Honig.

Well, welcome everybody to another Friday episode of Third Degree. You know I love these Friday episodes because I’m joined by one of our rotating cast of law student co-hosts, and so it’s my pleasure, welcome back for your second appearance from the University of Alabama, Kyra Perkins. Great to see you again.

Kyra Perkins:

Great To see you, Elie. Thank you again for having me today.

Elie Honig:

I realize that sounds a little bit like an introduction at an athletic event, “From the University of Alabama…” I can’t help it. I’ve I’ve watched too many NBA games in my life.

Kyra Perkins:

Roll tide.

Elie Honig:

Okay. Fair enough. Fair enough. It’s tournament time. Kyra, I understand you just went through something kind of dramatic, at least to me dramatic, but I’m glad you’re okay. Tell us what’s going on down there in Alabama?

Kyra Perkins:

So, right now in Alabama, it is tornado season, which I have recently realized is not normal for everyone else in America. So, yesterday we talked and I think I kind of gave you a little miniature panic attack because I was hiding in my bathtub at the time. And it’s kind of a normal thing for us down here. You get the tornado warning, you go hide in your bathtub, you get a pillow or a mattress. You cover your head and you kind of go on about your day.

Elie Honig:

I loved how calm you were. Yes, I was concerned for your wellbeing and I’m glad you’re okay. I’m glad the tornadoes did not touch down near you. So much to talk about right now, and I want to start by talking about voting rights, because this is really a make or break moment when it comes to voting rights in the United States. This is really going to go one of two ways, either the United States Congress, the House and the Senate are going to pass what we’re calling HR1, which is this broad voting rights package or else the states are going to have their way. And we’ve already seen hundreds of bills proposed at the state level, Republican-controlled legislatures that would scale back voting rights. And it really, this all comes down to federal versus state control over elections.

Now, one thing that’s important to understand, Kyra and I don’t know if this has ever been addressed in your law school classes. It certainly never was when I was in law school, because we weren’t this focused on elections, but there is no single centralized federal election system in the United States. There’s no United States Department of Elections in Washington, DC. The way the constitution has it set up in Article One, it explicitly says that it’s up to the states to determine how they will vote unless, and this is a big unless, unless Congress passes a law, because Congress can essentially supersede the states on this issue if it wants. But the thing is Congress has very rarely wanted or been able to do so. We had the Voting Rights Act in 1965. It’s been updated periodically, but not since 2006.

So, we’re trying to find… We, I think collectively are trying to the right balance between federal and state control over voting. And let’s just say straight up what’s happening here. Republicans want to restrict voting as much as possible because as one of their lawyers said to the Supreme Court a couple of weeks ago, essentially, “We need to keep voting numbers down so we can win elections.” Democrats, I think are trying to maximize the number of people voting because in their view and it’s supported by some of the data, more votes is better for Democrats. I do not believe, I will say. I do not believe Democrats are trying to broaden voting so that more fraud can occur. And I do not believe that more fraud does occur. I don’t think the data is there for that. But the key question really is how do we strike this balance? Do you think, Kyra in our system that we strike the right balance when it comes to state versus federal control of voting?

Kyra Perkins:

I think right now we have a pretty good balance going, Elie. I’ll say what my friend said in class, which I think she said it perfectly, “Sometimes states need to be told what to do.” And I fully believe in state sovereignty and the rights of states to pick what happens in their elections, but sometimes historically it’s important for Congress and the federal government to step in to ensure the sanctity of elections, to ensure a quality, to ensure that no minority groups are getting disenfranchised. So, I think that we do have a pretty good balance. It’s whether or not we’re using that balance correctly.

Elie Honig:

Yeah. I think that’s spot on. I actually agree exactly with that. One of the trickiest things for any Republic to do is divide power between the sort of central federal authority and the states. And here, I think we, the framers of the constitution sort of hit it exactly right, which is we will leave it up to state. States you can figure it out, because look, what works in one state might not work in another, but Congress does have the ability, the authority, the power, and at times the responsibility to come in and say, “Okay, but you can’t go below this bar, but we have to be uniform on this issue.” And we’re talking about really just to make it a little more tangible. What kind of issues are we talking about? Early voting. Okay. I cannot understand for the life of me, Republicans say, “Well, the concern here is we need to guard against fraud.” How does early voting in any way have anything to do with voter fraud? To me, it’s purely pretextual. I see you’re with me on this.

Kyra Perkins:

Yeah. I actually think it will be the exact opposite. If you have more early votes, you have more time to verify them and therefore, you actually know that they’re legitimate. That actually seems counterintuitive to me, what they are arguing.

Elie Honig:

I agree. And you have fewer people sort of crashing the ballot boxes on election day, right? Doesn’t that make it easier for the election workers to sort through, who’s here, to do whatever checks they have to do? That one strikes me as pure pretext by some of these states that are just trying to limit access to voting. Then you get to issues like voter identification. And here, I think there’s a little bit more of a legitimate back and forth, because if you are truly trying to guard against fraud and it’s perfectly legitimate for our government to guard against voter fraud. There’s no evidence that there is widespread voter fraud, but we should be protecting against it. But why not require at least some minimal form of identification? Think about all the things in our society today that you cannot do without identification. You can’t go into most buildings in Manhattan without identification, on down the line.

So to me, I feel like that one there’s some legitimacy. I don’t doubt that the real intent is to try to suppress the number of voters, but at least they have a good faith argument that voter ID requirements are somehow related to election security. What’s your view on that?

Kyra Perkins:

I think that if you’re going to do that, you just need to make it as open as possible. So for example, if I go and get a job anywhere, a grocery store, anything, I have to provide ID that says I am a citizen and I am able to work in the United States. So, if you were allowed to use anything off of that list that you’re allowed to use for employment, I think I would be kind of fine with the ID requirements. Where I think it gets sticky or tricky is when you’re limiting the amount of IDs that can be shown. For example, if you’re saying only people with a driver’s license are able to vote. Well, how many people in America don’t have driver’s licenses? A lot of the Northern states from what I’ve been told, you guys don’t really drive that often anyway.

Elie Honig:

Now, the big political question is the filibuster and let’s set the stage. So HR1, the federal law has passed the House of Representatives. Now it has to pass the Senate. You would think ordinarily in the Senate, “Well, it’s 50/50, but Democrats have the vice president, Kamala Harris. And so Democrats have the majority in the Senate. So why aren’t they just passing this?” The problem is this thing called the filibuster, which is essentially a filibuster… If you think back, Kyra to the old days, when a Senator who strongly objected to a law would stand up and read the phone book or sing a song until he passes out, there’s a couple of famous movie scenes of this. In reality, what happens is somebody on the other side says, “We’re going to filibuster.” And then it requires 60 votes to overcome a filibuster.

So as a practical matter, this means that in order to pass most types of legislation in the Senate, you really need 60 votes, not 50 or 51. And that obviously makes a huge difference, especially now where you have a 50/50, a very narrow split in the Senate. Now, Senate Democrats are struggling with this question of, should we abolish the filibuster? Should we get rid of it? Why should we need 60 votes if we’re the majority? Give me your thoughts on that. Is it wise for Senate Democrats who have the power if they all bind together to get rid of the filibuster and say, “We can pass things with 50, not 60.”

Kyra Perkins:

I think you’re getting into very dangerous ground there because once you override the filibuster, what happens when there’s another election and you’re no longer the majority. Now the opposite side is passing all these laws with no Democrat support whatsoever, and I think the reason for the filibuster and the reason the filibuster is actually so important is because we need bipartisan support on bills, on laws that are being enacted. In a government by the people in for the people, you want the people who are elected that represent the people to be as much in support of these bills as possible. So, I actually think the filibuster is very important because the filibusterer says that, “Okay, if we cannot get both sides to come together, or at least the majority of the representatives representing the American public to support this bill, then maybe it shouldn’t pass.” And I think that that is probably exactly what democracy is supposed to be.

Elie Honig:

Yeah. I think politicians sometimes have very short memories and very short foresight because as much as the Democrats are feeling it right now, because they’re the majority party, they could very well be the minority party again, as soon as 2022. You have as narrow margin as you could possibly have in the Senate. If one seat net flips over to Republicans, Democrats are going to find themselves back in the minority very quickly and they will at some point in the future without question. And I think you’re right. The purpose of the filibuster is you need to have at least some minimal support from the other party in order to get legislation passed. Now, it’s been worn away a little bit in the last few years, we’ve gotten rid of the filibuster, the 60-vote requirement. First for lower court federal judges, and then for Supreme Court justices. That’s what enabled Gorsuch and Kavanaugh and Amy Coney Barrett to get through, but it remains in place when it comes to substantive legislation.

And as you know, Kyra, the filibuster has protected many programs that Democrats hold dear. For example, during the Bush years, the filibuster protected against an effort to privatize social security. Later, it protected against a potential defunding of planned parenthood. Later during the Trump years, it protected against funding for the border wall. And in fact, it prevented many of Donald Trump’s policies from becoming enacted in law. So, it really goes both ways. Have you seen anything there that gives you reason to believe that HR1 could ultimately pass the Senate?

Kyra Perkins:

I haven’t just from the really, really bad publicity I’ve seen on the other side, especially on Fox News, I don’t think there is a chance of it getting passed. It really makes me wonder why we’re not looking at any alternative paths. For example, I know the Voting Rights Act of 1965, the Supreme Court struck down the formula that requires preclearance for states when it comes to discriminatory policies in voting, why not have a backup plan where we are recreating that formula or finding a new formula for the year 2021? Because they didn’t strike down the entire Voting Rights Act of 1965, they just struck down the formula. And I think that might be easier to get passed because what you end up with is a better balance between state sovereignty and federal laws, as opposed to what I believe many Republicans are saying, which is, this is just straight up Congress trying to take power from the states.

Elie Honig:

Yeah. It’ll be a real test of sort of political will and creativity, and maybe to some extent, that’s what the filibuster rule is designed to do. So, I want to shift focus over to the Derek Chauvin trial, which is still playing out in Minneapolis and we are still in the process of jury selection. It’s fascinating to watch. It’s something I went through and did as a lawyer many, many times. And it’s sort of interesting to see the American public understanding the way that this process works. Let me ask you, Kyra, how are you and your friends, your colleagues, your professors talking about this case so far in school, on campus, over Zoom, whatever it may be?

Kyra Perkins:

Well, I have great friends who love to listen to me talk about legal issues currently happening in the news. So, thank you to them. And one of the big things that we’re talking about right now is the settlement. And the thing that keeps getting thrown around with this word settlement is prejudicial and whether or not it is prejudicial towards the jury. And I’m going to be really honest with you. I’m not 100% sure what prejudicial means or how prejudicial works. But I do have friends who did mock trial and they love to just scream more prejudicial than probative at any time you give them the opportunity to.

Elie Honig:

They are well-prepared for futures as trial lawyers, Rule 403, that’s right. It’s more prejudicial than probative or unduly prejudicial. Very good question. So, let me set the stage here. So when you talk about the settlement, you’re talking about the fact that in right smack in the middle of jury selection, it was publicly announced that the City of Minneapolis had reached this $27 million civil settlement payment to George Floyd’s surviving family. And this gets announced and all of a sudden all heck breaks loose in the courtroom, right? Because the concern is this is going to be prejudicial to the jury. What does that mean? Whenever you’re talking about any piece of evidence in the case or any factor in the case, there’s really two things to balance. On the one hand, how probative is it? How relevant is it to the actual charges?

On the other hand, how prejudicial is it? How likely is it to inflame the jurors or to push the jurors towards something that’s improper or irrelevant in their consideration? And so, really any time there’s a piece of evidence at issue and we argue about this all the time is trial lawyers, what you said, Kyra, those magic words, more probative than prejudicial, more prejudicial than probative. That’s what the lawyers are arguing about. How relevant is this and how likely is it to sort of inflame the jury or lead them down an irrelevant path? But what’s interesting about this settlement is it’s never going to be admissible in the trial. There’s no possible way in a criminal trial the jury would know that the city settled this case. And by the way, the concern here is that that’s prejudicial against Derek Chauvin, because if the jury knows, “Wow, well, the city paid $27 million. This guy must’ve done something wrong.” Right? That’s the concern here.

Everybody in this case acknowledged, prosecutor, judge, and defense, that this is prejudicial to the jury, that it would not come in in the trial itself. So, the concern is have these jurors heard about this and if they have, and many of them it turned out had, are they able to sort of move past it or will it influence their view of the case? The problem here is right off the bat, they started losing jurors. They had two jurors who were already seated, who were already passed for impartiality, already passed on both parties already on the jury who said, “I’ve heard about this and that’s going to influence my view.” They had to get rid of him. They have other prospective jurors as they try to fill this jury who heard about it and said, “This will be a problem as well.”

So, whoever released word of this, whoever made the decision in Minneapolis government, and it was not the prosecutors did a terrible job here. I don’t know what they were thinking. I don’t know how they can sort of justify this. I’ll give you another common example where we have this debate is when it comes to the topic of a defendant’s prior convictions. Now, that doesn’t apply to the Chauvin case, he doesn’t have prior convictions, but often when you’re trying somebody, they will have been convicted of something else in the past. And prosecutors often want juries to hear that. And defense lawyers of course do not want juries to hear that. And so the question comes down to is the prior conviction relevant somehow to the crime charged here? Usually I’ll tell you, the answer is no. And usually if you have a defendant on trial who has prior convictions, the jury doesn’t know about that.

So, let me ask you this, put yourself in the point of view of a potential juror, do you think it makes sense in our jury trial system to have this filter, to have the judge deciding, “Yes, the jury can hear this. No, the jury can’t hear that because it might inflame them. It might prejudice them.” Or do you subscribe to, some people have argued for a sort of open market system where the lawyers can put in whatever evidence they want, as long as it complies with the hearsay rules and that kind of thing, and let the jury sort it out and let the lawyers argue it out. And if one side wants to pour in a bunch of irrelevant, inflammatory nonsense, then the other side can point it out to the jury and say, “They’re just giving you a bunch of inflammatory, irrelevant nonsense.” And here’s why. Do you think judges should have that sort of filter role in our trial system?

Kyra Perkins:

I absolutely do. And I know that that might be somewhat of a controversial opinion, but jurors at the end of the day are supposed to be the triers of fact. They’re supposed to decide which facts they think are true, which facts they think are relevant, which facts they think are false. If I give you a bunch of information that has nothing to do whatsoever with the current case before you, the current crime, whatever it is and you decide, “Well, I still think that’s true. I think that’s important.” You’re being biased by information that is not relevant to the case. And even if you say, “Well, I didn’t find this relevant.” You can’t really prove that they weren’t biased by it regardless. And I think that you’re getting into very dangerous territory there.

Elie Honig:

Yeah. I think one thing to keep in mind about juries is, and I once heard a potential juror come up for jury examination and he said this and I never forgot it. He said, “What happens here in the courtroom is not reality. What happens here in the courtroom is a shadow world.” And I thought, “Wow, what a sort of smart, almost poetic way to put it,” because all the information that comes into the jurors is carefully vetted and controlled by judges. And I’ll tell you having practiced for a long time in the courts, I do think judges are pretty darn good at that.

Kyra, I asked you to sort of think about if you had any questions for me as a more experienced grizzled trial veteran about the jury selection process?

Kyra Perkins:

Yes. So I actually did what I love to do, which is call anybody who’s willing to talk to me about legal and political issues. And my dad and I had a really important conversation about Batson challenges. Can you explain what that is? How that works?

Elie Honig:

Yeah, Batson’s in is a crucial part of our criminal justice and constitutional process. So, when you’re going through the jury selection process, like we’re seeing now in the Chauvin case, each juror gets examined and then there’s two ways they can be removed. One is what we call for cause, meaning there’s some obvious problem with this person. If a person got up there and said, “I’ve seen that tape. I think what the cop did was completely legitimate and I’ll never convict him.” You would throw that juror off the case for cause, for obvious reason. Beyond that though, the parties each have what’s called peremptory challenges, meaning they can kick off jurors for almost any reason. And it can even be sort of vague reasons. It can be, “I didn’t like something about the way they answered.” Not necessarily I can prove this person’s impartial, but my gut wasn’t good on this person.

Now, you can see the dangerous road that may go down, right? Because if you give lawyers in a trial complete blank checks to get rid of whoever they want, that could start to manifest itself in racist ways, in discriminatory ways. And so Batson is the Supreme Court decision, where it was held that parties still do have broad discretion in exercising those challenges, but they cannot exercise them in a racially discriminatory manner or other manner that violates the constitution. So, here’s how it plays out sometimes in a courtroom. If one party thinks the other party is using its strikes in an inappropriate manner, violating Batson, you can challenge it. You can say, “Judge, I’ve noticed that they’ve struck, three of their four strikes have been on African American jurors.” And what the judge will then do is turn to you and say, “Okay, counsel, explain why did you strike jurors six and 12 and 14?”

And then the lawyer has to give what’s called a race-neutral reason. And the judge can then decide whether he buys it or not, right? So you can’t say, “Obviously, I struck those people because they’re African Americans and I don’t want African Americans on the jury.” No lawyer would say that, and if you did say that, you would be sanctioned and disciplined and you would violate the law. But instead you get into this gray area where sometimes people have perfectly good explanations and sometimes it’s a little dicier and it’s up to the judge if the judge believes the explanation. Now, I’ll tell you, I’ll give you a couple of real life examples from my experience. I’m proud to say I was never even Batson challenged in any trial I ever did. And by the way, prosecutors do get Batson challenged sometimes very quickly.

There’ve been instances. I had colleagues who struck one minority juror and immediately the defense lawyer said, “I challenge that. I want to raise a Batson challenge.” Usually or always really in my experience, my colleagues were able to give a perfectly legitimate non-racial reason why they removed the person. “I didn’t like the answer to this question,” For example. I once actually raised a Batson challenge that was successful the other way against the defense. So, I once tried a human trafficking trial, where we had five defendants on trial. All five defendants were women. All of the victims in the case were young women, who had been sort of held captive and trafficked by our defendants. And we were going through jury selection and about midway through, my trial partner, incidentally, or maybe not incidentally, a woman sort of tapped me on the shoulder. And she said, “They’ve used all eight of their strikes so far on female jurors.”

And I said, “Oh my God, I didn’t even realize it.” And I went back and I looked, I said, “Okay, okay. So hold on, let’s see what they do with the next couple.” Next two or three, they struck a woman. They struck a woman. They struck a woman. And finally I said, “Okay, judge, I have to raise this now. They’ve had 10 or 11 challenges at this point, and they’ve used all of them on females.” And the judge had the same reaction as I did. By the way, a male judge [inaudible 00:22:02] the same thing. He said, “What? They have? Oh, my goodness. You’re right.” And he turned to the defense lawyers. There’s five lawyers because it was five defendants. And he said, “I need to hear your reasoning here. What is your reason? Let’s go through them one by one.” And honestly the defense lawyers had nothing.

They tap-danced and they had very flimsy explanations. It was very clear to me that they were striking intentionally female jurors. And the judge made that finding. He said, “Well, I don’t buy your explanations here. I find that you are using your strikes in a discriminatory manner to keep women off the jury.” Now, here’s the frustrating part. So far so good, right? You think, “Okay, our system at work.” I said, “Okay, judge, what are we going to do? We should eliminate the rest of their strikes or reempanel some of these jurors that they struck?” The judge said, “No.” It’s up to the judge, by the way what the penalty is. The judge said, “No, I’m just going to caution them against doing this again.” I was like, “Judge, we’re three quarters of the way through picking this jury, and they’ve been using them in a way you found to be discriminatory.”

So, it’s an important protection, but a lot of it really comes down to the way that it is utilized and enforced in the courtroom itself. So, I had a frustrating experience with it. Let me ask you about your view of that. Is there a better way than this? Is there a better way to ensure that we have representative juries or really more to the point to ensure that lawyers aren’t eliminating jurors in a way that’s racially discriminatory or otherwise violates our constitution?

Kyra Perkins:

I would say first and foremost, I think that the Batson challenge probably needs better enforcement. I think that would solve part of the problem there. But I think if we learned anything from the COVID-19 pandemic, it is the amount to which Zoom and technology can be utilized in our legal system. And I think it might be interesting to see what would happen if we started using some type of technology or video conferencing system where you can’t see people or maybe their voices are somewhat distorted or something like that, so you can’t tell gender, you can’t tell race, you can’t tell age. And then every person that you strike, you have to end up having an actual, legitimate reason, a for cause reason to strike them.

Elie Honig:

That is fascinating. Boy, I imagine that. In some sense, I think it’s a perfect solution because the fact of the matter is when you’re picking a jury, you have very limited information about the juror, but they’re in front of you and you certainly know what this person’s race is or have some sense of what the race is, if it’s a male or a female, the age, you have a sense. By the way, if any prosecutor is ever found to violate Batson and it does happen occasionally, it never happened to any of my colleagues, but that is about as serious, a dereliction of duty as you could ever see if a judge ever found that a prosecutor, and does happen occasionally. That’s about as serious of malpractice, I guess, as you could ever see from a prosecutor.

We are going to continue to watch this case. We’re still in the jury selection process. The trial itself starts in a couple of weeks. Kyra, you’ll be back on with me while this trial is probably mid-swing. So, keep an eye on it and we’ll continue to talk about it. I’m glad to hear that it’s something that’s being discussed on campuses or among law students and law professors right now. So Kyra, thank you again for joining me on Third Degree. So many interesting things. It’s great to hear your perspective.

Kyra Perkins:

Thank you, Elie. I had so much fun. I can’t wait to talk to you again.

Elie Honig:

And thanks again for listening to another Friday episode of Third Degree. As always, send us your thoughts, questions, comments to [email protected]

Third Degree is presented by CAFE Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Weiner. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley.