Juries

It has been established since Strauder v. West Virginia1737 that exclusion of an identifiable racial or ethnic group from a grand jury1738 that indicts a defendant or a from petit jury1739 that tries him, or from both,1740 denies a defendant of the excluded race equal protection and necessitates reversal of his conviction or dismissal of his indictment.1741 Even if the defendant’s race differs from that of the excluded jurors, the Court held, the defendant has third-party standing to assert the rights of jurors excluded on the basis of race.1742 “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.”1743 Thus, persons may bring actions seeking affirmative relief to outlaw discrimination in jury selection, instead of depending on defendants to raise the issue.1744

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 years1745 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.1746 Once this prima facie showing has been made, the burden is upon the jurisdiction to prove that it had not practiced discrimination; it is not adequate that jury selection officials testify under oath that they did not discriminate.1747 Although the Court in connection with a showing of great disparities in the racial makeup of jurors called has voided certain practices that made discrimination easy to accomplish,1748 it has not outlawed discretionary selection pursuant to general standards of educational attainment and character that can be administered fairly.1749 Similarly, it declined to rule that African-Americans must be included on all-white jury commissions that administer the jury selection laws in some states.1750

In Swain v. Alabama,1751 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 indicated that 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, the 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.”1752 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.”1753 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.”1754 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.’ ”1755 “On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous,”1756 but, on more than one occasion, the Supreme Court has reversed trial courts’ findings of no discriminatory intent.1757 The Court has also extended Batson to apply to racially discriminatory use of peremptory challenges by private litigants in civil litigation,1758 and by a defendant in a criminal case,1759 the principal issue in these cases being the presence of state action, not the invalidity of purposeful racial discrimination.

Discrimination in the selection of grand jury foremen presents a closer question, the answer to which depends in part on the responsibilities of a foreman in the particular system challenged. Thus, the Court “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.1760 That situation was distinguished, however, in a due process challenge to the federal system, where the foreman’s responsibilities were “essentially clerical” and where the selection was from among the members of an already chosen jury.1761

Footnotes

1737
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. back
1738
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). back
1739
Hollins v. Oklahoma, 295 U.S. 394 (1935); Avery v. Georgia, 345 U.S. 559 (1953). back
1740
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). back
1741
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). back
1742
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. back
1743
Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 329 (1970). back
1744
Carter v. Jury Comm’n of Greene County, 396 U.S. 320 (1970); Turner v. Fouche, 396 U.S. 346 (1970). back
1745
Norris v. Alabama, 294 U.S. 587 (1935); Patton v. Mississippi, 332 U.S. 463 (1947); Hill v. Texas, 316 U.S. 400 (1942). back
1746
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). back
1747
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). back
1748
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”). back
1749
Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 331–37 (1970), and cases cited. back
1750
396 U.S. at 340–41. back
1751
380 U.S. 202 (1965). back
1752
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). back
1753
476 U.S. at 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). back
1754
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. back
1755
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, 559 U.S. ___, No. 09–273, slip op. (2010). back
1756
Federal courts are especially deferential to state court decisions on discriminatory intent when conducting federal habeas review. Felkner v. Jackson, 562 U.S. ___, No. 10–797, slip op. at 4 (2011) (per curiam) (citation omitted).. back
1757
See, e.g., Foster v. Chatman, 578 U.S. ___, No. 14–8349, slip op. at 10–23 (2016) (applying the three-step process set forth in Batson to allow a death row inmate to pursue an appeal on the grounds that the state court’s conclusion that the defendant had not shown purposeful discrimination during voir dire was clearly erroneous given that the prosecution’s justifications for striking African-American jurors, while seeming “reasonable enough,” had “no grounding in fact,” were contradicted by the record, and had shifted over time); Snyder v. Louisiana, 552 U.S. 472, 483 (2008) (finding the prosecution’s race-neutral explanation for its peremptory challenge of an African-American juror to be implausible, and that this “implausibility” was “reinforced by the prosecutor’s acceptance of white jurors” whom the prosecution could have challenged for the same reasons that it claimed to have challenged the African-American juror); Miller-El v. Dretke, 545 U.S. 231, 240–41 (2005) (finding discrimination in the use of peremptory strikes based on various factors, including the high ratio of African-Americans struck from the venire panel, some of whom were struck on grounds that “appeared equally on point as to some white jurors who served”). back
1758
Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). back
1759
Georgia v. McCollum, 505 U.S. 42 (1992). back
1760
Rose v. Mitchell, 443 U.S. 545, 551 n.4 (1979). back
1761
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 black defendants from “the injuries of stigmatization and prejudice” associated with discrimination. Id. at 347. back