Bias, Batson, and "Backstrikes": Snyder v. Louisiana Through a Glass, Starkly
| Author | Bruce Hamilton |
| Pages | 963-994 |
The author would like to thank Professor Cheney Joseph for his invaluable assistance in drafting this Note, as well as the Volume 70 Board of Editors of the Louisiana Law Review for their guidance in revising it. The author would also like to thank his family members for their love and support.
"In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently."
Justice Harry Blackmun
Page 963
Two unspoken, unwritten words wreak profoundly harmful effects on jury selection, as well as on the trials and verdicts that follow: "whites only."1 This phrase may not be posted above jury boxes, but systematic exclusion of minorities from jury service sends the message. Discriminatory misuse of the peremptory challenge2 effectively etches the words into courtroom walls, as vivid as the eagle in the American seal.
It is unconstitutional to strike jurors because of their skin color, a principle the U.S. Supreme Court established and repeatedly affirmed throughout history.3 This line of jurisprudence, which stretches over more than a century, demonstrates the Court's continuing concern with the deeply rooted, intractable problem of racism.4 In the most recent example, Snyder v. Louisiana, an all- white jury convicted a black defendant of first-degree murder and sentenced him to death after five black people were struck from the venire.5 The Supreme Court remanded the case and granted a new trial to the defendant, Allen Snyder.6 Page 964
Snyder marks a rare reversal by the Court of a murder conviction, and the seven-two decision is particularly unusual because racism during jury selection caused the reversal.7 Snyder's prosecutor had removed a juror whom he previously empaneled by using a type of peremptory challenge called a backstrike.8 The Louisiana Supreme Court, which twice before had examined the record, did not discern prejudice in the prosecutor's peremptory challenges.9 But the U.S. Supreme Court inferred discriminatory intent from a single strike.10 The Court did not question the backstrike as a valid procedure, but its decision was based on the only backstruck juror.11 Writing for the majority, Justice Alito deemed the prosecutor's explanation for striking the student "suspicious."12 As the result of Snyder suggests, the backstrike itself incurs suspicion.
Snyder brings to the fore an issue Louisiana's justice system must address. A prosecutor's dismissal of a juror whom he previously accepted deserves heightened judicial scrutiny, especially if his reason is unconvincing. Backstrikes enable lawyers to eject jurors long after they have been questioned and tendered. Delaying a peremptory challenge this way can disguise a discriminatory pattern. As a procedural tool, the backstrike can be deceptive.
Racisim s often deceitful. It can hide in plain sight, clothed by colorblindness. It also can be mistakenly read into neutral behavior that appears discriminatory. Shortly after the Snyder decision, the prosecutor insisted that the U.S. Supreme Court was wrong and that "race was never an issue" in the case.13 Ultimately, his Page 965 motivation is moot. The Court could not tolerate the appearance of racism, even though its existence could not be proven. Snyder shows that courts must avoid even the appearance of prejudice in jury selection. A discriminatory effect can be worse than a discriminatory cause because it erodes the public's faith in the justice system.
This Note analyzes the holding of Snyder, assesses its impact on the jurisprudence of discrimination in juror selection, and proposes practical and legislative changes. Part II describes the background of peremptory challenges, explains the significance of Batson v. Kentucky and Snyder, and explores the background of backstrikes in Louisiana. Part III analyzes Snyder in the context of backstrikes, demeanor justifications, deference to trial judges, and mixed motive analysis. Part IV proposes solutions to make peremptory challenges less problematic. It concludes that backstrikes do too much damage to the justice system and should be banned in Louisiana.
Traditionally, the peremptory challenge was considered an "arbitrary and capricious right" to be "exercised with full freedom."14 Modern jurisprudence restricts this right. The challenge need not be explained "unless the challenge was used to discriminate on the basis of race, ethnicity or sex."15 In other words, its use can be capricious no longer. This increased restriction reflects a growing awareness of, and reaction to, its misuse. Forged as a shield against bias, the peremptory challenge has been sharpened into a sword.
The peremptory challenge was created as a tacit challenge for cause,16 a device typically used to dismiss prospective jurors who cannot be impartial, for reasons such as having a relationship to the defendant, defense counsel, or district attorney.17 At common law, the peremptory challenge was used to dismiss jurors whose Page 966 obvious biases made them unfit for jury service.18 By excluding those citizens who showed conspicuous prejudice or predisposition, British courts protected juries' impartiality. But the modern use of the peremptory challenge has a contrary effect.19
Rather than pursuing an open-minded panel, American lawyers look for jurors whom they see as sympathetic to their side. When both sides try to tilt a jury in their direction, however, the effect is not equality: "Two sets of partial jurors do not an impartial jury make."20 A strategy of seeking slanted jurors fosters a fundamental imbalance in the panel's deliberations.
Moreover, lawyers' own leanings permeate the jury selection process. With limited time and information about each prospective juror, lawyers typically rely on preconceptions, excluding people based on certain characteristics instead of challenging them on the basis of an articulated or demonstrable bias. Discrimination in jury selection is legitimate and acceptable, as long as it is not based on race, ethnicity, or sex.21 But the subjective motivation for a peremptory challenge is impossible to prove.
The peremptory challenge's purpose is to eliminate jurors whose prejudice is hidden or nonobvious.22 Lawyers therefore rely on intuition or some telling outward sign of a potential juror's predilections, even subtle reactions to questions such as a twitch, glance, or frown.23 The challenge gives lawyers the power to strike jurors for virtually any reason, but this power to discriminate freely is easily misused. For example, the peremptory challenge historically has been used to keep black people from serving on juries.24 It enabled and perpetuated racial discrimination that developed out of America's slaveholding history.
Before the Civil War, African-Americans were not permitted to serve on juries.25 Congress made it a criminal offense to exclude people from jury service based on their race in the Civil Rights Act of 1875.26 In 1880, the U.S. Supreme Court recognized in Strauder v. West Virginia that state laws on juror qualification were being Page 967 used to prevent African-Americans from serving.27 The Court held that excluding black jurors because of race violated the Equal Protection Clause, but its decision evoked the racist tenor of the times.28 When the Fourteenth Amendment was adopted, the Court said, the "colored race" was "abject and ignorant, and in that condition was unfitted to command the respect of those who had superior intelligence."29
When desegregated jury pools became inevitable, southern states used the peremptory challenge to keep black people off juries.30 Higher courts began to intervene, but political leaders used other discriminatory selection procedures to sidestep the law and ensure mostly white or all-white juries.31 Effective reform did not occur until the civil rights era.32 In 1965, an eighteen-year-old black man named Robert Swain challenged his sexual assault conviction and death sentence in Alabama because his jury was entirely white.33 The Supreme Court rejected his appeal because it found no intentional effort to exclude black jurors, though all eight of the empaneled black jurors had been struck by peremptory challenges.34 The Court held that the challenges reflected "no studied attempt to include or exclude a specified number of Negroes."35 To prove peremptory challenges were used purposefully to exclude African-Americans, the Court said, a challenger would have to show systematic abuse over time.36
Congress reacted to the decision by passing the Jury Selection and Service Act of 1968, which prohibited the dismissal of federal jurors on the basis of race, skin color, religion, gender, national origin, or economic status.37 The Act codified the Supreme Court's stance against discrimination in juror selection.38 But minority exclusion from federal juries continued despite the ban.39 For example, in fifty-three criminal trials between 1972 and 1973 in Page 968 the United States District Court for the Eastern District of Louisiana, prosecutors used sixty-nine percent of their peremptory challenges to dismiss black jurors, though only twenty-five percent of the eligible jurors on the venires were black.40
As State v. Washington demonstrates, some state prosecutors...
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