Jury Selection—Batson v. Kentucky Is Alive and Well. Last month the United States Supreme Court issued its long-awaited decision in Foster v. Chatman, 578 U.S. (2016), reaffirming its 30-year-old decision in Batson v. Kentucky, 426 U.S. 79 (1986), which prohibited the use of peremptory jury challenges that were racially motivated. Foster reaffirmed the Constitution forbids striking even a single prospective juror for a discriminatory purpose. Justice Roberts, writing for a 7-1 majority in Foster, emphatically stated, “two peremptory strikes on the basis of race are two more than the Constitution allows” 578 U.S. (2016).
Racially motivated use of peremptory challenges in selecting a jury has a long history. The right to a jury trial has been one of the bedrocks of the common law since King John was forced at sword point in a field in Runnymede, England to sign the Magna Carta and this right to jury trial was incorporated into the United States Constitution in the Bill of Rights as Amendments 6 and 7. No one can doubt its value in our society. However, with that right came the time-honored tradition of peremptory challenges.
Under common law, peremptory challenges allow litigants the unfettered discretion to remove a juror without explaining to anyone what the reasons were. The basis for such a right was in the assumption that no one truly knew a case and a client as well as the attorneys and the clients involved in litigation. The number of peremptory challenges is limited and varies by jurisdiction. These challenges differed from unlimited challenges based on cause, which allow the court to decide whether a juror should be disqualified because of bias, prejudice, knowledge of the parties, or other applicable circumstances. However, as with any good idea, the devil is in the details.
As the United States became more urbanized and trial lawyers no longer knew the people in their communities, these peremptory challenges often became based, not on any reasoned approach, but on ethnic, racial, and stereotypical assumptions. Even the great Clarence Darrow summarized his philosophy of jury selection as follows:
Never take a German; they are bull-headed. Rarely take a Swede; they are stubborn. Always take Irish or a Jew; they are the easiest to move to emotional sympathy. Old men are generally more charitable and kindly disposed than young men. They have seen far more of the world and understand it.
Oxford Book of Legal Anecdotes, 101 (M. Gilbert1986).
Still, these abuses went on for several years until 1986 when the United States Supreme Court concluded that peremptory challenges based on predominately racial grounds deprived criminal defendants of their due process rights under the 14th Amendment to the United States Constitution. 476 U.S. 79 (1986).
A new jury selection procedure was developed whereby when one side would move to strike a prospective juror, opposing counsel would make a Batson challenge where he was required to make a prima facie case showing the striking of this juror was based on racial grounds. This then shifted the burden of persuasion to the party seeking to disqualify a juror to explain a race-neutral reason for his exercise of the peremptory challenge, and then the opposition would have an opportunity to argue that such a proffered reason was purely pretextual. The Court would then rule whether the party making the challenge had established an impermissible reason. This procedure seemed to make sense to Appellate Courts and in the classroom, however those practicing criminal law knew that the procedure was still fraught with risks and did not eliminate racially biased use of peremptory challenges. Indeed, one does not have to look further than the recent TV mini-series People vs. O.J. Simpson to see prosecutors and defense counsel jostling to try and retain or excuse jurors based solely on race. The then L.A. County District Attorney was quoted as recently as two months ago criticizing the actual trial line prosecutor because she “didn’t heed the advice of our trial consultant who told her not to pick African-American women—particularly black mothers—for that jury,” he said, noting eight black women ended up on the panel. New York Post, April 10, 2016.
The recently decided case of Foster v. Chatman gave the Court an opportunity to revisit Batson. Chatman has particularly egregious facts. Foster, a 19-year-old African-American was charged with strangling a 79-year- old white woman in her home. Over Batson challenges, the prosecution struck all four of the black prospective jurors on the panel, and Foster was convicted and sentenced to death by an all white jury. The conviction was affirmed by the Georgia Supreme Court. On a state habeas petition, a subpoena was issued for the prosecutor’s notes which led to the discovery that the prosecutor had capital “B”s in big letters written next to the name of each potential African-American juror it dismissed and ranked them Bl, B2, and B3. The notes also contained a list of “definitive NO’s” which had all prospective black jurors at the top. The prosecutor also described his race-neutral reasons for striking the black jurors due to his belief that various combinations of the jurors were “confused,” easily swayed,” irrational,” “incoherent” and demonstrated “bad body language,” or lived too close to the victim or the defendant. The Georgia trial court was not swayed by this new evidence of racial animus and denied the habeas petition. The reviewing court denied it as well.
The Supreme Court saw two issues it needed to decide: 1) whether after the case was heard and upheld four times by various Georgia state courts, did the Supreme Court have the ability to review; and 2) on the merits, was there sufficient evidence to conclude the prosecutor’s several race-neutral explanations for his strikes of the African American jurors were a pretext for constitutionally improper use of peremptory challenges.
As to the jurisdictional issue, the State argued that since this case was fully litigated all the way to the Georgia Supreme Court, res judicata precluded review. The Supreme Court acknowledged that it did not have the ability to review a state court judgment that was “independent” of the merits of a federal claim and that there was an “adequate” basis for the state court decision. However, the Foster Court ruled that since the Batson challenge was based on federal constitutional rights, the Georgia decision overruling the challenge was not “independent” of federal law and jurisdiction for review existed.
When reaching the second issue of whether the prosecutor’s proffered race-neutral explanations were in fact pretextual, the Court had little trouble concluding they were. The Court concluded that “in reviewing a ruling claimed to be Batson error, all of the circumstances that bear on the issue of racial animosity must be consulted.” After a careful factual analysis, the Court found the supposed race-neutral reasons are “difficult to credit” because many of the white jurors exhibited many of the same factors and were not stricken. The Court concluded that the focus on race in the prosecutor’s file clearly demonstrated a concerted effort to remove African Americans from the jury. The Court then reversed the 30-year-old conviction and remanded back to the State court for further proceedings.
While some trial practitioners will argue that Foster was so fact based with such rare documentary evidence on racial motivation resulting in an unfair result, it should be narrowly construed. Others will assert that Foster makes clear that a pattern or practice of racial exclusion is not necessary and that one impermissible use of a peremptory challenge is a violation of the Federal Constitution. Foster is also sure to be used to urge trial court’s to conduct a much deeper inquiry into the supposed “race-neutral” explanation to see if it is sincere or pretextual. Since the holding of Batson has been extended to civil cases in Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991), and to discrimination based on a juror’s sex in J. E. B. v. Alabama ex rel., 511 U.S. 127 (1994), new issues will undoubtedly arise, and this area of the law will continue to be more fully developed.