Is your race-neutral explanation enough to survive a Batson challenge? In February, the Supreme Court handed down its decision in the case of Thaler v. Haynes, the latest in a string of cases originating with Batson v. Kentucky in 1986. In Batson, the Court outlawed the use of race-based peremptory challenges during jury selection. Attorneys can no longer strike racial minorities from a jury without an acceptable “race neutral” explanation for the strike. The intent of Batson was to eliminate the discriminatory use of peremptory challenges that often resulted in all-white juries in many parts of the country.
Despite its noble intent, the Batson decision has been widely criticized as vague, unclear and difficult to enforce. Indeed, since 1995, all of the Supreme Court’s rulings on the Batson line have been clarifications of the Batson procedures, including what constitutes a discriminatory peremptory challenge and what are acceptable, race-neutral explanations for a challenged strike. After briefly describing the history of the Batson line and the three-step process involved in a Batson hearing, I discuss the most recent Batson decisions and offer some tips to help attorneys avoid Batson problems during jury selection.
Expanding the Scope of Batson: The First Ten Years
Following Batson, the Court handed down a series of rulings expanding the decision. In 1991, the Court decided Edmonson v. Leesville Concrete Company, which extended Batson’s ban on race-based peremptories to the parties involved in civil litigation. Edmonson involved a black construction worker who sued his employer for negligence after sustaining a workplace injury. During jury selection, the defendant company used two of its three peremptory challenges to remove black jurors from the panel. The plaintiff objected, citing Batson. The court overruled the objection, pointing out that Batson applied only to prosecutors in criminal trials. However, the Supreme Court reversed the decision of the lower court, thereby including civil trials within the jury selection rules established under Batson.
The following year, the Court outlawed race-based peremptories made by criminal defendants. Georgia v. McCollum involved the trial of three white defendants charged with assaulting a black couple. The defense attorney admitted that he planned to strike all of the black jurors from the panel and the prosecution objected. The trial court upheld the strikes, as did the Georgia Supreme Court, but upon review, the U. S. Supreme Court reversed.
The Court has expanded the list of prohibited peremptories to include strikes based on gender and ethnicity. J.E.B. v. Alabama banned strikes based on gender. In J.E.B., prosecutors struck all of the male jurors in a paternity and child-support case against a male defendant. The all-female jury found that the defendant was the father and therefore owed child support to the mother. On appeal, the Court ruled that peremptory strikes made solely on the basis of gender, like those based solely on race, violated the Equal Protection Clause of the Fourteenth Amendment. The Court’s ruling in Hernandez v. New York extended Batson protections to Latinos. And in Powers v. Ohio, the Court decided that any litigant, regardless of race, may make a Batson objection.
Batson in Practice
A Batson challenge to a peremptory strike involves a three-step process.
1)A litigant wishing to challenge one or more of the opponent’s strikes must first demonstrate a prima facie case of discrimination in the use of those peremptories.
2)If a prima facie case is established, the attorney who made the challenged strike must offer a race-neutral (or gender-neutral, as the case may be) explanation for the peremptory.
3)Finally, in step three, the judge must decide whether the challenged peremptory was the result of purposeful race or gender discrimination.
Although the Court outlined the three steps of a Batson challenge, the ruling only vaguely defined the standards to be used during each of the three steps. As a result, lower courts have had to develop their own Batson standards. In his research on lower courts’ implementation of the Batson rules from 1986 to 1993, Mililli (1996) identified at least eight different standards in use by lower courts for establishing a prima facie case of discrimination during the first stage of a Batson hearing. The eight different methods ranged from a judge simply ensuring that a “sufficient number” of minorities sit on a jury, to more sophisticated analyses that compared the percentage of peremptory challenges used against minority citizens with the percentage of minorities in the jury venire (pp. 471-472). Mililli’s (1996) study found that in most Batson hearings (62%), the court found in the first step of the hearing that there was a prima facie case of discrimination.
In the second stage of a Batson hearing, the attorney must provide race neutral explanations for the challenged strikes. However, what constitutes an acceptable “race neutral” explanation was left undefined in the original Batson decision. As a result, most trial judges and appeals courts have granted attorneys a great deal of leeway with their explanations. Raphael and Ungvarsky (1994) looked at over 2,000 Batson hearings conducted between 1986 and 1992 and found that judges rejected only a very small percentage of explanations. In fact, the only “explanations” that were often rejected were either no explanation at all or the attorney admitting that the strike was based on the juror’s race. Raphael and Ungvarsky (1994) found twelve common categories of race-neutral explanations that judges typically accepted, including the juror’s prior experience with the criminal justice system, age, occupation, marital status, demeanor, education, socio-economic status and religion, among others. In fact, Raphael and Ungvarsky (1994) found that, “there are a number of cases in which courts accepted as a neutral explanation the prosecutor’s statement that she struck a juror because, among other reasons, the juror was black” (p. 236). Mililli’s (1996) study found that trial courts accepted attorneys’ neutral explanation in 78.4% of Batson hearings. As a result, only about 17% of Batson objections are eventually sustained. Ironically, Millili (1996) found that he highest rate of successful Batson challenges (53% success rate) are made against peremptories used to strike white jurors.
The original Batson decision also failed to prescribe a remedy for a Batson violation. The decision mentions two possible remedies, but endorses neither of them. One possible remedy is to replace the entire venire and repeat the jury selection process. However, replacing the entire venire might give attorneys a perverse incentive to make discriminatory peremptory strikes, in the hope that the second venire might be “better” for their case than the first. The other option is to reinstate the struck jurors. However, this option raises questions about the impartiality of those jurors, as they will have probably witnessed their dismissal, and may hold a grudge against the litigant who struck them.
Clarifying Batson: Supreme Court Decisions from 1995 to 2010
Almost ten years passed after the original Batson decision before the Supreme Court offered some guidance on its implementation. The Court’s short per curiam opinion in Purkett v. Elem (1995) weighed in on the nature of an acceptable “race neutral” explanation during the second step of a Batson hearing, and the Court’s ruling came as something of a shock. Purkett involved peremptory strikes used by a state prosecutor to remove two black jurors from a Missouri robbery trial. When the defense objected to the strikes, citing Batson, the prosecutor offered the following race-neutral explanation:
I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to be not a good juror for that fact, the fact that he had long hair hanging down shoulder-length, curly, unkempt hair. Also he had a moustache and goatee type beard. And juror number twenty-four also has a moustache and goatee type beard. Those are the only two people on the jury…with facial hair…And I didn’t like the way they looked, with the way the hair is cut, both of them. And the moustaches and the beards look suspicious to me (p. 765).
The Supreme Court upheld the prosecutor’s strikes and stated that race-neutral explanations need be only that: race-neutral. The explanations need not be “persuasive or even plausible” (p. 768). The Purkett decision seemed to make a Batson challenge nothing more than a mild procedural hassle for attorneys wishing to use their peremptory challenges as they saw fit. However in 2005, the Court revisited Batson and began handing down rulings seeking to clarify and strengthen the Batson rules.
In the first of these decisions, Johnson v. California, the Court held that California’s standard for evaluating a prima facie case of discrimination in the first step of a Batson hearing was too restrictive. California had required attorneys raising a Batson objection to show a “strong likelihood” of discrimination in the use of the strikes. Under Johnson, the Court ruled that just an “inference” or even a “suspicion” of discrimination was enough to establish a prima facie case of discrimination. The Court therefore struck down California’s more demanding requirement. In the second case in 2005, Miller-El v. Dretke, the Court overturned a murder conviction because an explanation given by the prosecutor for a peremptory strike used against a black juror also applied to white jurors who were not struck from the jury.
In March of 2008, the Court decided Snyder v. Louisiana, holding that the judge in Snyder’s first-degree murder trial erred when he allowed the prosecutor’s peremptory challenge of a black juror. The juror in question, Mr. Jeffrey Brooks, was a student teacher at the time of jury selection and initially explained to the court that jury duty would be a hardship for him because it would interfere with his teaching responsibilities. However, the court contacted Mr. Brook’s school and received permission for him to miss work. Nonetheless, the following day, the prosecutor struck Mr. Brooks. When defense counsel objected, the prosecutor explained the strike:
he’s one of the fellows that came up at the beginning [of voir dire] and said he was going to miss class. He’s a student teacher. My main concern is for that reason, that being that he might, to go home quickly, come back with guilty of a lesser verdict so there wouldn’t be a penalty phase (pp. 5-6).
The Court rejected this explanation as unpersuasive, pointing out that Mr. Brooks seemed satisfied when informed that the dean would “work with him” to make up any missed student teaching. The Court also pointed out that other jurors had more pressing work and family conflicts that would certainly make them eager to avoid a lengthy trial, yet these jurors were not stricken by the prosecutor. The Supreme Court held that, “the explanation given for the strike of Mr. Brooks is by itself unconvincing and suffices for the determination that there was Batson error” (pg. 5). Snyder seems to re-affirm Miller-El, in which the Court held that an explanation for a challenged strike will fail if the explanation also applies to other jurors who were not struck.
The most recent Supreme Court decision in the Batson line came last month. Thaler v. Haynes stems from the trial of Anthony Haynes, who was convicted of murdering a police officer in Texas. Two judges presided over the jury selection for Haynes’ trial. The first judge heard the questioning of the jurors, but another judge presided over the attorneys’ use of their peremptory challenges. The defense objected to the prosecutor’s peremptory strike of an African-American juror, citing Batson. During the subsequent Batson hearing, the prosecutor claimed that the juror’s demeanor seemed “somewhat humorous” and “not serious.” The judge, who was not present during the questioning and who had not seen the juror’s demeanor, accepted the prosecutor’s explanation and overruled the defendant’s Batson objection. Haynes was convicted, but on appeal, a federal Appeals Court granted Haynes a new trial. However, the Supreme Court reversed that decision, ruling that a trial judge need not personally observe a juror’s demeanor in order to rule on a demeanor-based explanation for a challenged peremptory strike.
While Thaler may seem to be a relatively minor technical decision, it may have important consequences for attorneys and trial consultants. First, Thaler reverses a recent trend toward restricting the scope of acceptable race-neutral explanations. Recall that Snyder rejected speculative juror hardship as an acceptable race-neutral explanation, and Miller-El rejected explanations for challenged strikes if the explanation also applied to jurors who were not struck. Second, Thaler could be seen as sanctioning the expanded use of demeanor-based explanations for challenged strikes. Juror demeanor includes a wide range of juror actions and statements, potentially giving attorneys greater flexibility in the use of their peremptory challenges.
Implications for Attorneys and Trial Consultants
So where does Batson currently stand? The most recent decisions, particularly Snyder and Miller-El, have tightened the standards for what constitutes a race-neutral explanation in the Batson process. However, there remain some pitfalls to avoid. Consider the following tips if you anticipate a Batson challenge while exercising your peremptory challenges.
•Whenever possible, use a written juror questionnaire during jury selection. Juror questionnaires not only give attorneys and trial consultants a great deal of information about jurors’ attitudes and life experiences, but jurors’ written answers are a valuable resource for clearly explaining challenged strikes in the event of a Batson hearing. Jurors are also more likely to answer questions truthfully and thoughtfully when writing their answers on a confidential questionnaire than when asked to talk about themselves in open court.
If facing a Batson challenge:
•Provide as many reasons as possible for the decision to strike the juror.
•Make sure that the reasons offered for the strike do not also apply to jurors who remained on the panel.
•Take careful notes on juror demeanor during questioning, as trial courts and the Supreme Court have accepted juror demeanor as an acceptable race-neutral reason for a strike.
•Remember that a juror’s perceived hardship is not a persuasive race-neutral justification for a challenged strike.
All graphics and tables in this article created by Jason Barnes of Barnes and Roberts.
Allen v. Hardy 478 U.S. 255 (1986)
Batson v. Kentucky 476 U.S. 79 (1986)
Edmonson v. Leesville Concrete Co. 500 U.S. 614 (1991)
Georgia v. McCollum 505 U.S. 42 (1992)
Hernandez v. New York 500 U.S. 352 (1991)
J.E.B. v. Alabama ex rel. T.B. 511 U.S. 127 (1994)
Johnson v. California 545 U.S. 162 (2005)
Mililli, Kenneth J. (1996). Batson in Practice: What We Have Learned About Batson and Peremptory Challenges. Notre Dame Law Review, 71, 447.
Miller-El v. Dretke 545 U.S. 231 (2005)
Powers v. Ohio 499 U.S. 400 (1991)
Purkett v. Elem 514 U.S. 765 (1995)
Raphael, M.J. & Ungvarsky, E.J. (1994). Excuses, Excuses: Neutral Explanations Under Batson v. Kentucky. University of Michigan Journal of Legal Reform, 27, 229.
Snyder v. Louisiana 552 U.S. 472 (2008)
Thaler v. Haynes 559 U.S. ___ (2010)