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Batson turns 30 but still has growing pains
In 1986, the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), held that a prosecutor’s exercise of race-based peremptory challenges to jurors violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The original holding of Batson has been substantially extended; however, the granting of a writ of certiorari in Foster v. Chatman, No. 14-8349, which is currently pending before the United States Supreme Court, indicates that the ruling of the Court in Batson still remains difficult to implement.
In her opinion in McWinston v. Boatwright, 649 F.3d 618 (7th Cir., 2011), Chief Judge Diane Wood succinctly reviewed the Supreme Court’s efforts to eliminate discrimination in jury selection as follows:
For more than 130 years, federal courts have held that discrimination in jury selection offends the Equal Protection Clause. See, e.g., Smith v. Texas, 311 U.S. 128, 130–32, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Norris v. Alabama, 294 U.S. 587, 599, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Neal v. Delaware, 103 U.S. 370, 397–98, 26 L.Ed. 567 (1881). Early cases focused on the systemic exclusion of racial minorities from juries through state statutes, e.g., Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); later, attention turned to the race-based use of peremptory challenges by prosecutors. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). More recently, the constitutional prohibition on discrimination in jury selection has been extended beyond race to gender. Moreover, the fact that society as a whole has an interest in the integrity of the jury system has been acknowledged. The anti-discrimination principle is thus not just a privilege of the criminal defendant; it constrains prosecutors, criminal defense lawyers, and civil litigants alike. Intentional discrimination by any participant in the justice system undermines the rule of law and, by so doing, harms the parties, the people called for jury duty, and the public as a whole. See J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (applying Batson to gender-based peremptory strikes); Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (applying Batson to criminal defense counsel); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (applying Batson to civil litigants); Powers v. Ohio, 499 U.S. 400, 405–07, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (describing the harms of discrimination in juror selection); Batson, 476 U.S. at 86–88, 106 S.Ct. 1712. As this case illustrates, however, discrimination in the selection of jurors has not yet been eradicated.
While a litigant is not entitled to a jury composed of members of his or her race or gender, Nehan v. J.B. Hunt Transportation, Inc., 179 Fed.Appx. 954 (7th Cir., 2006) (see also U.S. v. Nururdin, 8 F.3d 1187, 1189-90 (7th Cir., 1993), discrimination in the exercise of peremptory challenges when selecting jurors is unconstitutional.
Expansion of the coverage of Batson
In Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), the Supreme Court applied Batson to civil litigants as well as criminal defendants. In J.E.B. v. Alabama, 511 U.S. 127, 129 (1994), the Supreme Court held that gender, like race, is an unconstitutional basis for exercising peremptory challenges. In Powers v. Ohio, 499 U.S. 400, 402 (1991), the Supreme Court held that a litigant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the objecting party and the excluded juror share the same race.
Courts have, however, declined to expand the application of Batson to apply to disparate impact as a basis for sustaining a Batson challenge. In rejecting a Batson challenge suggesting that the proffered explanation for the strike, bias against law enforcement, is not race-neutral because African-Americans are disproportionately affected by negative interactions with law enforcement, the Seventh Circuit recently noted that defendant must show discriminatory intent because disparate impact does not violate Batson. U.S. v. J.B. Brown, Jr., 809 F.3d 371, 375-376 (7th Cir., 2016). See Hernandez v. New York, 500 U.S. 352, (1991)(plurality opinion).
Procedure for use of Batson challenges
Under Batson, discriminatory peremptory challenges are evaluated using a three-part test. First, the opponent of the strike must make a prima facie showing that the striking party exercised the challenge because of a discriminatory reason. Second, the striking party must proceed to articulate a race or gender-neutral reason for the challenge. After the race or gender-neutral reason is stated by the striking party, the Court must determine whether the opponent of the strike has carried his burden of proving purposeful discrimination. The ultimate burden of persuasion regarding race or gender-based motivation rests with and never shifts from the opponent of the strike. Alverio v. Sam’s Warehouse Club, Inc., 253 F.3d 933, 939-940 (7th Cir., 2001).
Batson is not self-executing. It is the duty of the party challenging the opponent’s peremptory challenge to make a Batson objection. The Court should wait for an objection before intervening in the process of jury selection to set aside a peremptory challenge. Doe v. Burnham, 6 F.3d 476, 478 (7th Cir., 1993).
The Court of Appeals cannot reverse a trial court’s finding that a proffered, race-neutral reason for a strike was credible unless the District Court’s finding is clearly erroneous, even if the Court of Appeals finds the reason dubious. While the striking party’s explanation “need not rise to the level justifying exercise of a challenge for cause,” it must be “clear and reasonably specific” and “related to the particular case to be tried.” Dunham v. Frank’s Nursery & Crafts, Inc., 967 F.2d 1121, 1124 (7th Cir., 1992).
Problems with application of Batson rules
As noted above, a reviewing court gives deference to the finding of the District Court in determining whether a Batson violation occurred and will reverse only if the findings of the trial court are clearly erroneous. The Seventh Circuit has noted that ordinarily this deference is accorded because the trial court generally conducts the Batson inquiry contemporaneously with the voir dire procedure and is in the best position to witness statements of the party challenging the juror and to assess the credibility of the party exercising the challenge when they justify the exercise of their peremptory challenge under the Batson procedures. Holder v. Welborn, 60 F.3d 383, 388 (7th Cir., 1995).
The Court in Holder, however, conducted a de novo review because Batson was decided during the pendency of Holder’s appeal and the Batson hearing was held in a habeas corpus proceeding years after the original impanelment of the jury. In Holder, the Court held that a prosecutor’s concern that an African-American juror would harbor feelings of selective prosecution against the prosecutor’s office based on the fact that the murder charges against a white suspect in the shooting death of the African-American juror’s brother were dropped within two years of Holder’s trial was a race-neutral justification for the exercise of a peremptory strike. In finding there was no Batson violation, the Court reviewed the Supreme Court’s Opinion in Batson and noted that the Equal Protection Clause only forbids the prosecutor to challenge potential jurors solely (emphasis in original) on account of their race. Holder v. Welborn, Id. at 388.
The Seventh Circuit affirmed the District Court’s denial of Holder’s petition for habeas relief. In Holder, Judge Cudahy dissented. He asserted that “It is no answer, contrary to the majority’s opinion, to suggest that Batson only prohibits strikes occurring ‘solely’ on the basis of race”, and suggested that the case be remanded to the trial court to determine whether or not there were mixed motives in which race played an impermissible role for striking the African-American juror. Holder v. Welborn, Id. at 391.
The difficulty in applying the “sole motive” test to Batson challenges is illustrated by the holding of the Seventh Circuit Court in Pettiford v. Durm, 175 F.3d 1020, unpublished opinion (7th Cir., 1999). The Court in Pettiford dealt with the application of Batson during the trial of a civil rights complaint filed under 42 U.S.C. §1983. In that case, the plaintiff asserted that the defense had used a peremptory challenge to strike an African-American juror for racial reasons. The following is the colloquy regarding the contention that the juror was impermissibly struck on the basis of race:
THE COURT: The record needs to reflect that there is one African-American on this jury remaining and the defendants have just struck that defendant-or that juror and they need to articulate a rational reason for that, a race neutral reason for that strike.
MR. BYRON [defendants’ attorney]: The reason we are striking is because we believe that she might be biased with regard to race.
THE COURT: It has to be a different reason than that. Got to have an articulable reason that has to do with something other than race.
MR. BYRON: I need to go back and look at our card.
THE COURT: Wait a minute, just a second. Unless the plaintiff doesn’t care.
MR. HENDREN [plaintiff’s attorney]: Your Honor, we-
THE COURT: You do care?
MR. HENDREN: Yes, sir.
THE COURT: Okay.
(Counsel conferred outside record)
(At the bench)
THE COURT: All right, Mr. Byron.
MR. BYRON: Yes. Number one, she’s not working; and number two, she has been a claims rep and has litigation experience.
THE COURT: Do you have any comment you want to make?
MR. HENDREN: Yes, your Honor. I think they already stated the reason on the record for striking her was because of her race, and these are [pretextual] reasons, neither one of which would impugn her ability to fairly judge the evidence in the case.
THE COURT: Well, an articulable reason is an articulable reason, and it doesn’t have to be much. And the fact that there is a history with an insurance company is enough statement to make, and so I’m going to excuse her. Thank you.
From this colloquy, it clearly appears that a motivating reason for striking the juror was the juror’s race. However, the Seventh Circuit, relying upon the holding in Holder, found there was no Batson violation where both racially discriminatory and race-neutral reasons are given for the strike. The Seventh Circuit in Pettiford ruled that, so long as a juror is not struck solely (emphasis added) on account of race, no equal protection issues arise.
Although Holder has not specifically been reversed by the Seventh Circuit, its current vitality appears to be questionable. In Snyder v. Louisiana, 128 S.Ct. 1203 (2008), the Supreme Court evaluated a Batson challenge in a Louisiana death penalty case. In Snyder, the prosecutor had used peremptory strikes to eliminate African-American prospective jurors. One of the jurors struck by the prosecutor was an African-American college student. The prosecutor gave two allegedly race-neutral reasons for striking the juror. The first was that the juror looked nervous. The second reason was that the student was concerned his jury service or sequestration could interfere with his student-teaching obligations needed for his college course. The Court, however, contacted the Dean of the juror’s college who indicated he would work with juror to make up lost teaching time if he missed student teaching due to the trial. The prosecutor’s reason for excluding the student was that the student may have been inclined to find the defendant guilty of a lesser included offense to obviate the need for a death penalty phase of the trial in order to return to his student teaching. The Court found this reasoning “highly speculative and unlikely” in light of the offer of the college dean to work with the student to make up missed student teaching time and the short duration of the trial which was known to the prosecutor. Snyder, Id. at 128 S.Ct. 1204-1205. In reaching this conclusion, Justice Alito commented:
In other circumstances, we have held that, once it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, the burden shifts to the party defending the action to show that this factor was not determinative. (citation omitted) We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context.
Snyder, Id. at 128 S.Ct. 1212.
If the Seventh Circuit holding in Holder is viewed under the substantial or motivating factor test discussed above, it could create a question as to whether a racial reason for a peremptory challenge is a “substantial or motivating factor” as opposed to the “sole factor” under the test used by the Pettiford court.
Batson returns to the Supreme Court
The petition for writ of certiorari in Foster v. Chatman, No. 14-8349, was filed on January 30, 2015. The U.S. Supreme Court granted the petition for a writ of certiorari on May 26, 2015. The Court heard oral argument on November 2, 2015 and will issue an opinion in 2016.
Foster v. Chatman provides a look into the pretextual exercise of peremptory challenges and how they may have been used by prosecutors. Timothy Foster is an African-American man who has been on death row for the past 28 years in Georgia. He claims that the prosecutors at his trial violated Batson by striking four African-American prospective jurors during jury selection. Foster was tried, convicted, and sentenced to death by an all-white jury.
At trial, Foster objected to the use of four peremptory challenges by the prosecutors. The prosecutors gave seemingly race-neutral reasons for their peremptory challenges and the trial judge and reviewing courts agreed that the race-neutral reasons were sufficient. Foster, however, was able to obtain the prosecutors’ notes years later through the Georgia Open Records Act. The notes revealed that the prosecutors were working from a jury list that was color coded by race, juror cards that indicated race, and a list of “definite no’s” that included all the prospective African-American jurors. Foster argues that the notes reveal the prosecutors were taking race into account at every step of jury selection in violation of the Supreme Court’s holding in Batson.
At oral argument in the Foster case, the Court asked counsel for Foster to first address whether the case should be remanded to the Georgia Supreme Court to require that court to accept the review of the writ of certiorari, which they had denied. The Court then went on to hear arguments on the merits of the case. The questioning of Justice Sotomayor indicates a willingness to apply the substantial and motivating factor test discussed by Justice Alito in Snyder. This could implicate a change in holdings such as the Seventh Circuit’s decision in Holder which permits a peremptory challenge if it was not “solely” motivated by race.
The following colloquy between counsel for petitioner illustrates the Court’s interest in examining the reliance on one legitimate reason for striking a juror when other reasons are present:
JUSTICE SOTOMAYOR: -- I have found some circuit courts who have a rule on appeal or on habeas which is if they can find one legitimate reason for striking a juror --
MR. BRIGHT(counsel for petitioner Foster): Yes.
JUSTICE SOTOMAYOR: -- that’s enough to defeat a Batson challenge. Do you believe that’s an appropriate rule? Are you suggesting a different approach to the question?
MR. BRIGHT: Well, it can’t -- I -- I would suggest it -- it can’t possibly be. Because this Court said in Justice Alito’s opinion in Snyder v. Louisiana that where the peremptory strike was shown to have been motivated in substantial part by race, that it could not be sustained. And -- excuse me -- I -- I would suggest to you, it shouldn’t even really say substantial. Because if this Court, as it said so many times, is engaged in unceasing efforts to end race discrimination in the criminal courts, then a strike that -- strikes motivated by race cannot be tolerable.
And, of course, as -- as pointed out here in the -- in the amici, this is a serious problem, not just in this case, but in other cases where people come to court with their canned reasons and just read them off. That happened in this case, where one of the reasons that was given was just taken verbatim out of a -- two of the reasons given were taken verbatim out of a reported case. So you don’t have the reason for the lawyer in this case. He said my personal preference. It wasn’t his personal preference. It was the personal preference of some U.S. attorney in Mississippi who gave that reason, and then it was upheld on appeal by -- by the Fifth Circuit.
It will be of interest to see what the Court does with this opportunity to revisit Batson. A recent and well researched article, “Foster v. Chatman: A Watershed Moment for Batson and the Peremptory Challenge?”1 by Nancy S. Marder, Professor of Law and Director of Justice John Paul Stephens Jury Center, IIT Chicago-Kent College of Law, outlines, in detail, options open to the Supreme Court in reviewing Foster v. Chatman.
Professor Marder notes, in her abstract to the lengthy and well-reasoned article, that the Court could either take a minimalist approach in which it could simply find a Batson violation, or could tweak the Batson test in different ways, such as giving more weight to discriminatory effects of practices or by devising a stronger remedy. In the view of Professor Marder, the only remedy that is adequate to the task is the one that Justice Marshall suggested in his Batson concurrence thirty years ago, the elimination of the peremptory challenge.
Thus, though the Batson holding has been in effect for 30 years, the Courts and commentators still grapple with how to best implement it in the trial court.