It has been established since Strauder v. West Virginia1579 that exclusion of an identifiable racial or ethnic group from a grand jury1580 which indicts a defendant or a petit jury1581 which tries him, or from both,1582 denies a defendant of the excluded race equal protection and necessitates reversal of his conviction or dismissal of his indictment.1583 Even if the defendant's race differs from that of the excluded jurors, the Court has recently held, the defendant has third party standing to assert the rights of jurors excluded on the basis of race.1584 "Defendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection. People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion."1585 Thus, persons may bring actions seeking affirmative relief to outlaw discrimination in jury selection, instead of depending on defendants to raise the issue.1586

1579 100 U.S. 303 (1880). Cf. Virginia v. Rives, 100 U.S. 313 (1880). Discrimination on the basis of race, color, or previous condition of servitude in jury selection has also been statutorily illegal since enactment of § 4 of the Civil Rights Act of 1875, 18 Stat. 335, 18 U.S.C. § 243. See Ex parte Virginia, 100 U.S. 339 (1880). In Hernandez v. Texas, 347 U.S. 475 (1954), the Court found jury discrimination against Mexican-Americans to be a denial of equal protection, a ruling it reiterated in Castaneda v. Partida, 430 U.S. 482 (1977), finding proof of discrimination by statistical disparities, even though Mexican-surnamed individuals constituted a governing majority of the county and a majority of the selecting officials were Mexican-American.

1580 Bush v. Kentucky, 107 U.S. 110 (1883); Carter v. Texas, 177 U.S. 442 (1900); Rogers v. Alabama, 192 U.S. 226 (1904); Pierre v. Louisiana, 306 U.S. 354 (1939); Smith v. Texas, 311 U.S. 128 (1940); Hill v. Texas, 316 U.S. 400 (1942); Cassell v. Texas, 339 U.S. 282 (1950); Reece v. Georgia, 350 U.S. 85 (1955); Eubanks v. Louisiana, 356 U.S. 584 (1958); Arnold v. North Carolina, 376 U.S. 773 (1964); Alexander v. Louisiana, 405 U.S. 625 (1972).

1581 Hollins v. Oklahoma, 295 U.S. 394 (1935); Avery v. Georgia, 345 U.S. 559 (1953).

1582 Neal v. Delaware, 103 U.S. 370 (1881); Martin v. Texas, 200 U.S. 316 (1906); Norris v. Alabama, 294 U.S. 587 (1935); Hale v. Kentucky, 303 U.S. 613 (1938); Patton v. Mississippi, 332 U.S. 463 (1947); Coleman v. Alabama, 377 U.S. 129 (1964); Whitus v. Georgia, 385 U.S. 545 (1967); Jones v. Georgia, 389 U.S. 24 (1967); Sims v. Georgia, 385 U.S. 538 (1967).

1583 Even if there is no discrimination in the selection of the petit jury which convicted him, a defendant who shows discrimination in the selection of the grand jury which indicted him is entitled to a reversal of his conviction. Cassell v. Texas, 339 U.S. 282 (1950); Alexander v. Louisiana, 405 U.S. 625 (1972); Vasquez v. Hillery, 474 U.S. 254 (1986) (habeas corpus remedy).

1584 Powers v. Ohio, 499 U.S. 400, 415 (1991). Campbell v. Louisiana, 523 U.S. 392 (1998) (grand jury). See also Peters v. Kiff, 407 U.S. 493 (1972) (defendant entitled to have his conviction or indictment set aside if he proves such exclusion). The Court in 1972 was substantially divided with respect to the reason for rejecting the "same class" rule—that the defendant be of the excluded class—but in Taylor v. Louisiana, 419 U.S. 522 (1975), involving a male defendant and exclusion of women, the Court ascribed the result to the fair-cross-section requirement of the Sixth Amendment, which would have application across-the-board.

1585 Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 329 (1970).

1586 Carter v. Jury Comm'n of Greene County, 396 U.S. 320 (1970); Turner v. Fouche, 396 U.S. 346 (1970).

A prima facie case of deliberate and systematic exclusion is made when it is shown that no African Americans have served on juries for a period of years1587 or when it is shown that the number of African Americans who served was grossly disproportionate to the percentage of African Americans in the population and eligible for jury service.1588 Once this prima facie showing has been made, the burden is upon the jurisdiction to prove that discrimination was not practiced; it is not adequate that jury selection officials testify under oath that they did not discriminate.1589 Although the Court in connection with a showing of great disparities in the racial makeup of jurors called has voided certain practices which made discrimination easy to accomplish,1590 it has not outlawed discretionary selection pursuant to general standards of educational attainment and character which can be administered fairly.1591 Similarly, it declined to rule that African Americans must be included on all-white jury commissions which administer the jury selection laws in some States.1592

1587 Norris v. Alabama, 294 U.S. 587 (1935); Patton v. Mississippi, 332 U.S. 463 (1947); Hill v. Texas, 316 U.S. 400 (1942).

1588 Pierre v. Louisiana, 306 U.S. 354 (1939); Cassell v. Texas, 339 U.S. 282 (1950); Eubanks v. Louisiana, 356 U.S. 584 (1958); Whitus v. Georgia, 385 U.S. 545 (1967); Alexander v. Louisiana, 405 U.S. 625 (1972). For an elaborate discussion of statistical proof, see Castaneda v. Partida, 430 U.S. 482 (1977).

1589 Norris v. Alabama, 294 U.S. 587 (1935); Eubanks v. Georgia, 385 U.S. 545 (1967); Sims v. Georgia, 389 U.S. 404 (1967); Turner v. Fouche, 396 U.S. 346, 360- 361 (1970).

1590 Avery v. Georgia, 345 U.S. 559 (1953) (names of whites and African Americans listed on differently colored paper for drawing for jury duty); Whitus v. Georgia, 385 U.S. 545 (1967) (jurors selected from county tax books, in which names of African Americans were marked with a "c").

1591 Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 331-37 (1970), and cases cited.

In Swain v. Alabama,1593 African Americans regularly appeared on jury venires but no African American had actually served on a jury. It appeared that the absence was attributable to the action of the prosecutor in peremptorily challenging all potential African American jurors, but the Court refused to set aside the conviction. The use of peremptory challenges to exclude the African Americans in the particular case was permissible, the Court held, regardless of the prosecutor's motive, although it was indicated the consistent use of such challenges to remove African Americans would be unconstitutional. Because the record did not disclose that the prosecution was responsible solely for the fact that no African American had ever served on a jury and that some exclusions were not the result of defense peremptory challenges, defendant's claims were rejected.

The Swain holding as to the evidentiary standard was overruled in Batson v. Kentucky, the Court ruling that "a defendant may establish a prima facie case of purposeful [racial] discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's [own] trial."* To rebut this showing, the prosecutor "must articulate a neutral explanation related to the particular case," but the explanation "need not rise to the level justifying exercise of a challenge for cause."1594 In fact, “[a]lthough the prosecutor must present a comprehensible reason, ‘[t]he [rebuttal] does not demand an explanation that is persuasive, or even plausible’; so long as the reason is not inherently discriminatory, it suffices.”63 Such a rebuttal having been offered, “the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating ‘the persuasiveness of the justification’ proffered by the prosecutor, but the ‘ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’”64 “On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous,” but, on more than one occasion, the Supreme Court has reversed trial courts’ findings of no discriminatory intent.65 The Court has also extended Batson to apply to racially discriminatory use of peremptory challenges by private litigants in civil litigation,1595 and by a defendant in a criminal case,1596 the principal issue in these cases being the presence of state action, not the invalidity of purposeful racial discrimination.

1592 396 U.S. at 340-41.

1593 380 U.S. 202 (1965).

* 476 U.S. 79, 96 (1986). Establishing a prima facie case can be done through a “wide variety of evidence, so long as the sum of proffered facts gives rise to an inference of discriminatory purpose.” Id. at 93-94. A state, however, cannot require that a defendant prove a prima facie case under a “more likely than not” standard, as the function of the Batson test is to create an inference and shift the burden to the state to offer race-neutral reasons for the peremptory challenges. Only then does a court weigh the likelihood that racial discrimination occurred. Johnson v. California, 543 U.S. 499 (2005).

1594 476 U.S. 79, 96, 98 (1986). The principles were applied in Trevino v. Texas, 503 U.S. 562 (1991), holding that a criminal defendant's allegation of a state's pattern of historical and habitual use of peremptory challenges to exclude members of racial minorities was sufficient to raise an equal protection claim under Swain as well as Batson. In Hernandez v. New York, 500 U.S. 352 (1991), a prosecutor was held to have sustained his burden of providing a race-neutral explanation for using peremptory challenges to strike bilingual Latino jurors; the prosecutor had explained that, based on the answers and demeanor of the prospective jurors, he had doubted whether they would accept the interpreter's official translation of trial testimony by Spanish-speaking witnesses. The Batson ruling applies to cases pending on direct review or not yet final when Batson was decided, Griffith v. Kentucky, 479 U.S. 314 (1987), but does not apply to a case on federal habeas corpus review, Allen v. Hardy, 478 U.S. 255 (1986).

63 Rice v. Collins, 546 U.S. 333, 338 (2006) (citation omitted). The holding of the case was that, in a habeas corpus action, the Ninth Circuit “panel majority improperly substituted its evaluation of the record for that of the state trial court.” Id. at 337-38. Justice Breyer, joined by Justice Souter, concurred but suggested “that legal life without peremptories is no longer unthinkable” and “that we should reconsider Batson’s test and the peremptory challenge system as a whole.” Id. at 344.

64 Rice v. Collins, 546 U.S. at 338 (citations omitted). “[O]nce 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. We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context… [Nevertheless,] a peremptory strike shown to have been motivated in substantial part by a discriminatory intent could not be sustained based on any lesser showing by the prosecution.” Snyder v. Louisiana, 128 S. Ct. 1203, 1212 (2008) (citation omitted). To rule on a Batson objection based on a prospective juror's demeanor during voir dire, it is not necessary that the ruling judge have observed the juror personally. That a judge who observed a prospective juror should take those observations into account, among other things, does not mean that a demeanor-based explanation for a strike must be rejected if the judge did not observe or cannot recall the juror's demeanor. Thaler v. Haynes, 130 S. Ct. 2141 (2010).

65 Snyder v. Louisiana, 128 S. Ct. 1203, 1207 (2008) (Supreme Court found prosecution’s race-neutral explanation for its peremptory challenge of a black juror to be implausible, and found explanation’s “implausibility . . . reinforced by prosecution’s acceptance of white jurors” whom prosecution could have challenged for the same reason 545 that it claimed to have challenged the black juror, id. at 1211). In Miller-El v. Dretke, U.S. 231 (2005), the Court found discrimination in the use of peremptory strikes based on numerous factors, including the high ratio of minorities struck from the venire panel (of 20 blacks, nine were excused for cause and ten were peremptorily struck). Other factors the Court considered were the fact that the race-neutral reasons given for the peremptory strikes of black panelists “appeared equally on point as to some white jurors who served,” id. at 241; the prosecution used “jury shuffling” (rearranging the order of panel members to be seated and questioned) twice when blacks were at the front of the line; the prosecutor asked different questions of black and white panel members; and there was evidence of a long-standing policy of excluding blacks from juries.

1595 Edmonson v. Leesville Concrete Co., 500 U.S. 614.

1596 Georgia v. McCollum, 505 U.S. 42 (1992).

Discrimination in the selection of grand jury foremen presents a closer question, answer to which depends in part on the responsibilities of a foreman in the particular system challenged. Thus the Court had "assumed without deciding" that discrimination in selection of foremen for state grand juries would violate equal protection in a system in which the judge selected a foreman to serve as a thirteenth voting juror, and that foreman exercised significant powers.1597 That situation was distinguished, however, in a due process challenge to the federal system, where the foreman's responsibilities are "essentially clerical" and where the selection is from among the members of an already-chosen jury.1598

1597 Rose v. Mitchell, 443 U.S. 545, 551 n.4 (1979).

1598 Hobby v. United States, 468 U.S. 339 (1984). Note also that in this limited context where injury to the defendant was largely conjectural, the Court seemingly revived the same class rule, holding that a white defendant challenging on due process grounds exclusion of blacks as grand jury foremen could not rely on equal protection principles protecting blacks defendants from "the injuries of stigmatization and prejudice" associated with discrimination. Id. at 347.

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