Batson's Grand Jury DNA

• Author: Roger A. Fairfax, Jr.
• Position: Professor of Law, George Washington University Law School
• Pages: 1511-1530

1511

Batson’s Grand Jury DNA

Roger A. Fairfax, Jr.

INTRODUCTION .................................................................................... 1512

I. THE GRAND JURY’S RELEVANCE TO BATSON ......................................... 1512

A. CHARLES HAMILTON HOUSTON AND THE CRAWFORD CASE .............. 1512

B. CONTEXT MATTERS ....................................................................... 1516

II. GRAND JURY SELECTION EQUAL PROTECTION JURISPRUDENCE ON

THE ROAD TO BATSON .......................................................................... 1518

III. GRAND JURY SELECTION AND THE DEVELOPMENT OF THE BATSON

FRAMEWORK ......................................................................................... 1524

CONCLUSION ....................................................................................... 1529

 Professor of Law, George Washin gton University Law School. A.B., Harvard College;

M.A., University of London; J.D., Harvard Law School. I would like to thank the organizers and

participants associated with the 2011 “Batson at Twenty-Five: Perspectives on the Landmark,

Reflections on Its Legacy” Symposium at the University of Iowa College of Law. I am grateful to

Andrea Dennis, Lisa Fairfax, Kris Henning, Renee Hutchins, Michael Pinard, and Kami Chavis

Simmons for their feedback and comments on earlier versions of this Essay. This Essay is

dedicated to the memory of Judge Robert L. Carter (1917–2012), former District Judge, United

States District Court for the Southern District of New York, and John A. Payton (1946–2012),

former President and Director–Counsel of the NAACP Legal Def ense and Educational Fund,

Inc.

1512 IOWA LAW REVIEW [Vol. 97:1511

INTRODUCTION

Batson v. Kentucky was a landmark decision imposing constitutional

restrictions on peremptory challenges in the petit jury selection process.

Batson was a culmination of a long line of cases addressing racial

discrimination in jury selection. However, the role of anti-discrimination

doctrine in grand jury selection is often overlooked when the story of Batson

is considered. Many of the key equal protection cases underpinning the

Batson decision were grand jury cases. Furthermore, the evidentiary

framework applied to challenges to race-based peremptory strikes in Batson

was forged in a century’s worth of grand jury discrimination doctrine. This

Essay, prepared for the “Batson at Twenty-Five: Perspectives on the

Landmark, Reflections on Its Legacy” Symposium at the University of Iowa

College of Law, highlights this significant jurisprudence—Batson’s grand jury

DNA—and explores the import of its legacy.

Part I of this Essay sets the stage with the story of one defendant’s

extraordinary 1933 challenge—orchestrated by his brilliant lawyer, Charles

Hamilton Houston—to the exclusion of blacks from the Loudoun County,

Virginia grand jury that indicted him for murder. This Part suggests that,

despite the significantly different contextual backdrop of the nonadversarial

grand jury process (most notably, the absence of peremptory challenges in

grand jury selection), there is sufficient reason to investigate the grand jury’s

role in the story of Batson. Part II chronicles how many of the significant

equal protection gains in the jury selection arena were won and solidified in

the context of challenges to discrimination in the selection of grand jurors.

Indeed, the Supreme Court’s equal protection jurisprudence in grand jury

discrimination cases would lay the foundation for Batson. Part III explains

how Bat son’s articulation of the quantum of proof necessary for

demonstrating a violation of the Equal Protection Clause in the exercise of a

peremptory challenge can be attributed to the grand jury discrimination

cases of the previous century. This Essay concludes by contemplating

whether the lessons we have drawn from the quarter-century experience

under Batson might have some relevance for how we select and utilize grand

juries in contemporary criminal justice.

I. THE GRAND JURY’S RELEVANCE TO BATSON

A. CHARLES HAMILTON HOUSTON AND THE CRAWFORD CASE

In 1932, Agnes Boeing Ilsley, a white socialite, and Nina Buckner, her

housekeeper, were murdered at the Ilsley home in Loudoun County,

Virginia.1 A black man named George Crawford, a former Ilsley household

1. RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND

BLACK AMERICA’S STRUGGLE FOR EQUALITY 147 (2004).